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Canadian Gov’t: YES, We Dissolved Your Gay Marriage, But We’re Working on a Fix

Posted by on Jan 13, 2012 in World | 9 comments

Yesterday’s news that the approximately four thousand married LGBT couples who had wedded in Canada instead of their home countries where same-sex marriage is illegal had been inadvertently divorced was big news. BIG NEWS.

So big that 250,000 people flooded our article which included quotes from Dan Savage about having to tell his husband that they were now only boyfriends. The resulting traffic all but melted our servers into a puddle, and we remained unable to even log in to our website, let alone update the story as it progressed throughout the day.

We were even more frustrated than you were, we promise. Now some updates.

From today’s Winnipeg Free Press:

There are now doubts about the validity of thousands of marriages conducted in Canada for same-sex couples from the United States and elsewhere following a federal twist in a Charter of Rights case launched in Ontario by two foreign women seeking a divorce.

A legal brief filed by federal lawyers denies the women are even legally married, prompting critics to charge Stephen Harper’s Conservative government with rewriting the rules on gay marriage to suit its right-wing agenda.

“I think it’s the radical right by stealth,” Liberal Leader Bob Rae said Thursday. “I think Mr. Harper is trying to placate a certain base in his party. But it’s certainly not a base that’s widespread in the country and I don’t think it’s right or appropriate…”

From Lambda Legal:

We write to respond to a news report from Canada that a lawyer in the current government has taken a position in a trial-level divorce proceeding that a same-sex couple’s marriage is not valid because the members of the couple were not Canada residents at the time that they married, and the law of their home jurisdiction did not permit them to marry at the time.

No one’s marriage has been invalidated or is likely to be invalidated. The position taken by one government lawyer in a divorce is not itself precedential.  No court has accepted this view and there is no reason to believe that either Canada’s courts or its Parliament would agree with this position, which no one has asserted before during the eight years that same-sex couples have had the freedom to marry in Canada.

Canada permits non-residents to marry and thousands of non-resident same-sex couples have married there since Canada first began recognizing the freedom to marry for same-sex couples in 2003. Indeed, Canada’s Parliament codified the equal right to marry for same-sex couples in 2005.

The message for same-sex couples married in Canada remains the same as it is for same-sex couples validly married here in the United States: take every precaution you can to protect your relationship with legal documents such as powers of attorney and adoptions, as you may travel to jurisdictions that don’t respect your legal relationship. There is no reason to suggest that Canadian marriages of same-sex couples are in jeopardy, or to advocate that people try to marry again elsewhere, as that could cause these couples unnecessary complications, anxiety, and expense. 

Except that statement is not true. The marriages performed for couples whose home nations didn’t recognize same-sex marriage weren’t valid, after all.

This morning’s Montreal Gazette ran an article titled “Canada to Change Law to Recognize Marriages of Gay Foreigners.”
OTTAWA — The Harper government is working quickly to change the law so that the marriages of the thousands of gay couples who travel to Canada to wed are legally recognized in this country.“We want to make it very clear that in our government’s view, these marriages should be valid,” a senior government official told Postmedia News on Friday.“That’s why we will change the Civil Marriage Act so that any marriages performed in Canada that aren’t recognized in the couple’s home jurisdiction will be recognized in Canada.”

The legislative change will apply to all marriages performed in Canada regardless of the laws of the jurisdiction in which the couple live, the official said.

“The confusion and the pain that is resulting from this gap is completely unfair to those who are affected, and I think we saw that yesterday in the coverage of these poor people who woke up to this news,” the official said.

We caught a lot of flack after Lambda Legal released their statement yesterday, as we were unable to update our own article to include it. And while we certainly appreciate what organizations like LL do for the LGBT community, they certainly weren’t doing anybody any favors by suggesting that those of us covering the Canadian government’s inadvertent dissolving of thousands of marriages were making the whole thing up.