Show me some evidence the feds made misrepresentations. Your speculation does not cut it.
Harper social conservative agenda rears its head - moves against same sex marriage
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Matt Gurney: If Harper wanted to go after gay marriage, he’d be smarter than this
If you thought the gay marriage debate was complicated, wait until you try out gay divorce: Efforts by a foreign same-sex couple, who married in Toronto in 2005, to secure a divorce have not only dropped a potentially messy legal crisis into the lap of the federal government, but also given new life to the long-held suspicions of many that the Harper Tories are closet homophobes.
The legalities of the situation are complex. The unidentified couple, whose names are covered by a publication ban, returned to Canada to apply for a divorce after being married here seven years ago. They were not able to obtain said divorce because under the Divorce Act, applicants must be residents of Canada for at least 12 months. This couple does not, and seemingly never has, lived in Canada. They just chose to marry (and split up) here because it was not possible for them to do so in their home jurisdictions.
Uninterested in living in Canada for a year just to get divorced, the couple filed a Charter claim against the Ontario and federal governments, claiming that the residency requirement violated their Section 7 right to “life, liberty and security of the person” and their Section 15 right to equality under the law. These both seem to be spurious arguments — but rather than fight them on their own (lacking) merits, a government lawyer instead deployed this humdinger of a legal manoeuvre: They can’t get divorced because it turns out they were never married at all.
Done! Easy-peasy. Let’s break for lunch.
The government is arguing that since Florida and the U.K. — the home jurisdictions of the estranged couple — don’t recognize gay marriages, a gay marriage licence issued in Canada isn’t legally valid. People living in Canada, Canadian or otherwise, would have no problem, because Canada does recognize same-sex unions. But if your home country or state doesn’t, then the government has argued that a Canadian marriage has no standing in law. Weird, but true.
And that, friends, is what gave the old hidden-agenda trope fresh blood this week. On Twitter, and in outraged quotes in Thursday’s front-page story in The Globe and Mail, this legal argument is being portrayed, overtly or slyly, as a deliberate move by the Harper government to begin rolling back gay marriage. The Globe’s John Ibbitson, in a blog posted Thursday afternoon, seemed strangely torn on the issue — he spent the first three-quarters of his piece dismissing such speculation as “conspiracy theories” and musing that the whole situation was probably the “product of messing up.” Thinking otherwise, he wrote, was something “those who believe there was a shooter on the grassy knoll” would embrace.
And then, oddly, he asked, “Who knows” if it’s true. Hidden agenda-ers, rejoice.
I claim no special insight into the workings of Stephen Harper’s mind. But if the Tories were looking to re-open the gay marriage debate, this would have to be the strangest way they could ever hope to go about it. Do people seriously believe that the Tories have been sitting on a plan, waiting for an impatient non-resident same-sex couple to file a Charter challenge so they can divorce in a hurry, so that they can spring it into action?
And having done so, can anyone even begin to explain what the next phase of this operation would be? Unless the Conservatives plan to declare that all Canadian homosexuals are actually residents of Qatar, I’m not sure how questioning the validity of marriage licences granted to non-resident couples confers any advantage.
To be clear — the suggestion that these couples were never married under Canadian law, a suggestion advanced by a single government lawyer — is ridiculous. The notion that Canadian law should be dependent on the local laws of every single other jurisdiction on the planet is asinine. A government that has made so much of standing up for Canada’s values on the world stage has no business declaring our own laws subservient to any other land’s. We might not have the hard- or soft-power to give our laws much weight abroad, but we can at least honour them in our own country.
But taking a flawed, shortsighted legal manoeuvre by a government lawyer and reading an entire hidden agenda (or potential hidden agenda, who knows, Mr. Ibbitson might stress) into it says more about what people continue to expect from the Conservatives than anything the Tories have actually done.
When asked Thursday about his reaction to the lawyer’s suggestion that the gay marriages of foreign residents might not be considered valid even in Canada, a clearly surprised Prime Minister Harper admitted he wasn’t familiar with the case and reiterated for the umpteenth time that his government has no intention of reopening the gay marriage debate. That should be enough to make the policy of the Conservative government, notwithstanding creative lawyers, clear. But it’s plain it never will be.
If you thought the gay marriage debate was complicated, wait until you try out gay divorce: Efforts by a foreign same-sex couple, who married in Toronto in 2005, to secure a divorce have not only dropped a potentially messy legal crisis into the lap of the federal government, but also given new life to the long-held suspicions of many that the Harper Tories are closet homophobes.
The legalities of the situation are complex. The unidentified couple, whose names are covered by a publication ban, returned to Canada to apply for a divorce after being married here seven years ago. They were not able to obtain said divorce because under the Divorce Act, applicants must be residents of Canada for at least 12 months. This couple does not, and seemingly never has, lived in Canada. They just chose to marry (and split up) here because it was not possible for them to do so in their home jurisdictions.
Uninterested in living in Canada for a year just to get divorced, the couple filed a Charter claim against the Ontario and federal governments, claiming that the residency requirement violated their Section 7 right to “life, liberty and security of the person” and their Section 15 right to equality under the law. These both seem to be spurious arguments — but rather than fight them on their own (lacking) merits, a government lawyer instead deployed this humdinger of a legal manoeuvre: They can’t get divorced because it turns out they were never married at all.
Done! Easy-peasy. Let’s break for lunch.
The government is arguing that since Florida and the U.K. — the home jurisdictions of the estranged couple — don’t recognize gay marriages, a gay marriage licence issued in Canada isn’t legally valid. People living in Canada, Canadian or otherwise, would have no problem, because Canada does recognize same-sex unions. But if your home country or state doesn’t, then the government has argued that a Canadian marriage has no standing in law. Weird, but true.
And that, friends, is what gave the old hidden-agenda trope fresh blood this week. On Twitter, and in outraged quotes in Thursday’s front-page story in The Globe and Mail, this legal argument is being portrayed, overtly or slyly, as a deliberate move by the Harper government to begin rolling back gay marriage. The Globe’s John Ibbitson, in a blog posted Thursday afternoon, seemed strangely torn on the issue — he spent the first three-quarters of his piece dismissing such speculation as “conspiracy theories” and musing that the whole situation was probably the “product of messing up.” Thinking otherwise, he wrote, was something “those who believe there was a shooter on the grassy knoll” would embrace.
And then, oddly, he asked, “Who knows” if it’s true. Hidden agenda-ers, rejoice.
I claim no special insight into the workings of Stephen Harper’s mind. But if the Tories were looking to re-open the gay marriage debate, this would have to be the strangest way they could ever hope to go about it. Do people seriously believe that the Tories have been sitting on a plan, waiting for an impatient non-resident same-sex couple to file a Charter challenge so they can divorce in a hurry, so that they can spring it into action?
And having done so, can anyone even begin to explain what the next phase of this operation would be? Unless the Conservatives plan to declare that all Canadian homosexuals are actually residents of Qatar, I’m not sure how questioning the validity of marriage licences granted to non-resident couples confers any advantage.
To be clear — the suggestion that these couples were never married under Canadian law, a suggestion advanced by a single government lawyer — is ridiculous. The notion that Canadian law should be dependent on the local laws of every single other jurisdiction on the planet is asinine. A government that has made so much of standing up for Canada’s values on the world stage has no business declaring our own laws subservient to any other land’s. We might not have the hard- or soft-power to give our laws much weight abroad, but we can at least honour them in our own country.
But taking a flawed, shortsighted legal manoeuvre by a government lawyer and reading an entire hidden agenda (or potential hidden agenda, who knows, Mr. Ibbitson might stress) into it says more about what people continue to expect from the Conservatives than anything the Tories have actually done.
When asked Thursday about his reaction to the lawyer’s suggestion that the gay marriages of foreign residents might not be considered valid even in Canada, a clearly surprised Prime Minister Harper admitted he wasn’t familiar with the case and reiterated for the umpteenth time that his government has no intention of reopening the gay marriage debate. That should be enough to make the policy of the Conservative government, notwithstanding creative lawyers, clear. But it’s plain it never will be.
I think with respect you have it backwards.
The real issue before the court is does the court have jurisdiction to dissolve a marriage which may be void ab initio (sorry that means from the outset). This is an important jurisdictional issue.
Without having the befit of reading any of the briefs my best guess is that the court will simply decline jurisdiction on the basis of residency without having to decide whether or not the marriage was valid. The government will have to then decide whether to create an exception to the residency requirement for parties married here but from jurisdictions which do not recognize the marriage. I believe that the AG has hinted that he would be favorably disposed to assisting such people. Time will tell.
Let's try again, too, with another example: let's say a polygamous "family" immigrates to Canada. For Canada's purposes, only one wife is legally recognized as a spouse, and Canada will not grant a "divorce" from the "other spouses".
Now: can they fly someplace that recognizes multiple marriages and ask for a quickie divorce? Under international law, no.
What if they move somewhere that recognizes multiple marriages and ask for a divorce? Then, probably they could get one.
What if they split apart while in Canada, then moved somewhere that recognizes multiple marriage? Lawyers would have to look at it, but it would be likely that the separation would be respected and no divorce would be necessary. (Of course, the complication is that some such countries don't recognize divorce at all. But let's assume they play nice.)
Now: can they fly someplace that recognizes multiple marriages and ask for a quickie divorce? Under international law, no.
What if they move somewhere that recognizes multiple marriages and ask for a divorce? Then, probably they could get one.
What if they split apart while in Canada, then moved somewhere that recognizes multiple marriage? Lawyers would have to look at it, but it would be likely that the separation would be respected and no divorce would be necessary. (Of course, the complication is that some such countries don't recognize divorce at all. But let's assume they play nice.)
Yes.
The question is: why would any couple be granted a divorce here (or anywhere) if the dissolution of their relationship where they live doesn't require it.
It doesn't matter that they were married here: we don't track symmetry.
Let's imagine a jurisdiction that required a divorce proceeding to dissolve a common-law relationship. Would Canada require them to go there to obtain such a divorce if they split up while living in Canada? Absolutely not: they could split up and (re-)marry without such an impediment while living under Canadian law. And the same if they split while living in the States and wanted to marry in Canada. The fact that some foreign jurisdiction considered them married (common law) is no impediment to accepting the dissolution of their relationship without requiring a divorce here.
More importantly, international law wouldn't allow a common-law couple, residents of Canada, to simply fly over for a week in some country that required a divorce to dissolve a common-law relationship, and have them get a divorce over there: that court would be bound to recognize the laws where they live.
I think you are right about that, and the residency requirement is very sensible. The factum the government filed is one of those shotgun variety filings, where they give a dozen different reasons why they oppose the divorce. Most of the reasons they give are not very controversial: the couple doesn't live here, doesn't meet the residency requirement, the marriage isn't recognized in their home jurisdiction, blah blah blah. None of that is really upsetting to anybody.
But in the middle of it all the government makes the direct claim that the couple was never actually married in the first place. THAT is a big deal, and THAT is what has everyone up in arms.
RLD is claiming that this statement was made only in some limited context of the Divorce Act. I do not think that is true. They made BOTH arguments in the factum. They claim BOTH that the couple is not legally married in their home jurisdiction as required by the Divorce Act AND that they were never actually legally married in Canada in the first place.
To follow up on what Anynym posted, and what I among others have already written.
What on earth does the Minister of Justice expect to accomplish by this (other than to stop idle political chatter)?
What a can of worms to open up a Canadian Court making decisions on property distribution and perhaps child custody which are unenforceable in the jurisdiction in which the parties live! What then happens in the hypothetical of a divorced non-national, non-resident Lesbian couple where a Canadian Court grants custody to the non-birth mother of the child but back in Timbuktu (where everyone lives) the birth mother has custody. The birth-mother and child then come on a vacation to see Banff National Park, is Canada going to attempt to return the child to the non-birth mother, jail the birth-mother for contempt?
If the Minister proposes just dissolving the marriage, then do we not get into the issue of equal justice and indeed whether this was a marriage at all?
:deadhorse:
The Minister and the PM may like to say that they have no interest in "reopening" the debate, but when the lawyer under the direction of the Minister filed a factum stating that several thousand gay couples are not actually married...
Well it's safe to say it has been reopened, whether they like it or not.
There are literally thousands of couples who believed they were married and were receiving benefits and paying taxes on the assumption that they are married whose lives are now in limbo. There are a variety of US jurisdictions where they achieve a sort of common law status on the basis of their foreign marriage, without the marriage being fully recognized--now what is their status?The claim that they are not married has a direct, immediate, and real impact on their lives. It's not just going to quietly disappear from the papers--these people need to know what their status is, what will be done about it, who is responsible, how it was allowed to happen, what can be done about it.
The debate has definitely been reopened, and reopened by the Ministry of Justice.
Well it's safe to say it has been reopened, whether they like it or not.
There are literally thousands of couples who believed they were married and were receiving benefits and paying taxes on the assumption that they are married whose lives are now in limbo. There are a variety of US jurisdictions where they achieve a sort of common law status on the basis of their foreign marriage, without the marriage being fully recognized--now what is their status?The claim that they are not married has a direct, immediate, and real impact on their lives. It's not just going to quietly disappear from the papers--these people need to know what their status is, what will be done about it, who is responsible, how it was allowed to happen, what can be done about it.
The debate has definitely been reopened, and reopened by the Ministry of Justice.
You misstate the government position.
But I am not surprised since you were willing to suggest these was some Harper move against same sex marriage before you were in possession of much useful information at all.
The latter follows directly from the former: BECAUSE they do not have a marriage recognized where they live, there is nothing for Canada to recognize, regardless of whether they had a ceremony in Canada, Belgium, or New York. If, while married, they move to some other jurisdiction where the marriage they formalized in Canada is recognized, then Canada considers them married.
I know everyone is up in arms about this, but it's really being blown out of proportion. One of my friends/colleagues/former profs, Brenda Cossman from U of T Law, explains this in a way that sheds light on what's really going on here. Check it out and judge for yourself:
http://watch.ctv.ca/news/national-affairs/jan-12/#clip599981
http://watch.ctv.ca/news/national-affairs/jan-12/#clip599981
Here is the troublesome bit:
4. In order for a marriage to be legally valid in Canadian law, the parties to the marriage must satisfy both the requirements of the law of the place where the marriage is celebrated (the lex loci celebrationis) with regard to the formal requirements, and the requirements of the law of domicile of the couple with regard to their legal capacity to marry one another.
Contrary to what RLD is trying to have us all believe, the Government is not claiming that is limited to the divorce act, as they do in paragraphs 6, 9, 10, etc.
4. In order for a marriage to be legally valid in Canadian law, the parties to the marriage must satisfy both the requirements of the law of the place where the marriage is celebrated (the lex loci celebrationis) with regard to the formal requirements, and the requirements of the law of domicile of the couple with regard to their legal capacity to marry one another.
Contrary to what RLD is trying to have us all believe, the Government is not claiming that is limited to the divorce act, as they do in paragraphs 6, 9, 10, etc.
You and things legal really don't mix. The argument is confined to the function of the Divorce Act because the application is confined to the application of the Divorce Act. They don't need to repeat it every time, because that is how the action is framed. Simple as that.
And to help you even more, para 6,9 and 10 don't say that the argument is confined to the Divorce Act, they rely on the Divorce Act for authority.
This is almost as good as when you claimed infidelity was not a grounds for divorce in Canada. Quit while you have some dignity left.
From TGirl Nikki's video, Brenda Cossman disagrees with you, RLD.
"Brenda Cossman joined the Faculty of Law in 1999, and became a full professor in 2000. She holds degrees in law from Harvard and the University of Toronto, and an undergraduate degree from Queen's. In 2002 and 2003, she was a Visiting Professor of Law at Harvard Law School. Prior to joining the University of Toronto, she was Associate Professor at Osgoode Hall Law School of York University.
Professor Cossman's teaching and scholarly interests include family law, law and sexuality, and freedom of expression. Her most recent book on Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging was published by Stanford University Press in 2007. Her publications include the co-authored Bad Attitudes on Trial: Pornography, Feminism and the Butler Decision (University of Toronto Press) and Censorship and the Arts (published by the Ontario Association of Art Galleries). "
Hmm. I guess I'll take her word over yours.
"Brenda Cossman joined the Faculty of Law in 1999, and became a full professor in 2000. She holds degrees in law from Harvard and the University of Toronto, and an undergraduate degree from Queen's. In 2002 and 2003, she was a Visiting Professor of Law at Harvard Law School. Prior to joining the University of Toronto, she was Associate Professor at Osgoode Hall Law School of York University.
Professor Cossman's teaching and scholarly interests include family law, law and sexuality, and freedom of expression. Her most recent book on Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging was published by Stanford University Press in 2007. Her publications include the co-authored Bad Attitudes on Trial: Pornography, Feminism and the Butler Decision (University of Toronto Press) and Censorship and the Arts (published by the Ontario Association of Art Galleries). "
Hmm. I guess I'll take her word over yours.
actually she is saying exactly what I am saying.
Nice of you to ignore all of your own errors though. Believe what you like. Misrepresent how you wish.
Can we just end this thread. It's a dead issue, and media have dropped reporting it.
The only press this gets, is in TERB...from the Harper haters....
Who quite clearly understand, in the grand scheme of things, Harper wins this round, and in fact solidifies his own contention that he will not ReOPEN.
Get over it lefties.
The only press this gets, is in TERB...from the Harper haters....
Who quite clearly understand, in the grand scheme of things, Harper wins this round, and in fact solidifies his own contention that he will not ReOPEN.
Get over it lefties.
I just took the time out of my day to listen to the video. There is absolutely nothing there which goes against what has been posted by RLD and others here.
This video is vindicating exactly what I said. The federal government is looking at creating an exception (this is incredibly admirable if Harper does this) to this rule. I said they could do this.
According to Cossman, the government did not have to make the argument it is making, which is that the marriages are not valid. As I said, this was the argument the government was making.
And she is saying exactly what I said, that it seems wrong for the government to encourage people to come here and then turn around and say their marriages are not valid. And she said that the court might fashion a remedy that uses equality principles and the Charter to get around this wrong.
I dunno, RLD, for someone who claims to have a lot of legal training, I sure think a lot more like a law professor than you do.
According to Cossman, the government did not have to make the argument it is making, which is that the marriages are not valid. As I said, this was the argument the government was making.
And she is saying exactly what I said, that it seems wrong for the government to encourage people to come here and then turn around and say their marriages are not valid. And she said that the court might fashion a remedy that uses equality principles and the Charter to get around this wrong.
I dunno, RLD, for someone who claims to have a lot of legal training, I sure think a lot more like a law professor than you do.
