ISSUE 100
Politics
Equal Marriage Equal Divorce
During the heady days of striving for equal marriage to be made legal in Canada, I remember some discussion at Board level at Egale Canada, and with Canadians for Equal Marriage, that not only will we need to enshrine the right to marry for GLBTQ folk, but the right to divorce as well. Clearly, similar discussions were never held in cabinet up on Parliament Hill.
Now we have a situation where a lesbian couple married, legally they believed, in Canada in 2005 now wish to legally divorce. While they were prepared to return to Canada from their respective domiciles in Florida and Europe to do so, they were informed that because they have not fulfilled the one year residency requirement, and their own jurisdictions do not recognize the marriage as valid, they were not, in fact, actually legally married' at all!
One of the concerns I expressed back then, but realized there was probably not much one could do about it, was the number of individuals coming from outside Canada for the express purpose of getting married. I couldn't articulate the concern, apart from a vague discomfort "Getting Married. In Canada was being treated like some sort of trip to Disney World and being made an Honourary Mouseketeer, but I was uncomfortable with it and somewhat concerned what might happen if, after the first flush of excitement faded, these people woke up one morning and went "oops... don't want to be married after all!". Naturally, one assumed as adults, individuals wouldn't enter into such a commitment lightly and would understand what we were saying all along; marriage is marriage.
In fairness, such individuals would naturally assume all the i's had been dotted and all the t's crossed. I guess we missed some stuff that, in retrospect, would appear obvious.
Like having the right to divorce enshrined right alongside the right to marry.
June 2004.
It's not like the possibility of divorce hadn't already hit the public radar. Back in 2004, when the debate around equal marriage was still raging, a Toronto lesbian couple, known only as M.M. and H.H., filed for divorce. The women married on June 18, 2003, a week after the Ontario Court of Appeal legalized same-sex marriage. They separated five days later. The couple had been together for almost 10 years. A petition for divorce was filed in Ontario's Superior Court of Justice in Madam Justice Ruth Mesbur, the presiding judge in this case, approved the couple's application on September 13, 2004 ruling the definition of spouse in the Divorce Act was unconstitutional. The Act defined "spouse" as "of a man or woman who are married to each other."
At the time of M.M. vs H.H. equal marriage was not yet enshrined in federal law but courts in three provinces (Ontario, B.C. and Quebec) and the Yukon had ruled lesbians and gay men had the freedom to marry under the Charter of Rights. That caused a rush to the altar by thousands of homosexual couples.
Liberal Prime Minister Paul Martin said at that time he would introduce a bill, likely in October 2004, to rectify the legislation and to put it to a free vote in Parliament. However, he warned, it could take up to a year after that for same- sex marriage to be legal nationwide. Martin also stated the Divorce Act had to be overhauled to reflect the changes to the Marriage Act.
"It may take awhile to resolve the issue," Nicholas Bala, a professor of family law at Queen's University, said at the time. "There are many issues at stake here: what happens if a partner dies and what happens if one of the partner's is from another province where there is no gay marriage. There is nothing to reference."
Apparently, it never got resolved.
Mind you, at the time, those of us working to bring in equal
Predictably, once this omission came to light, the Harper marriage were busy counteracting the outrageous attacks government came under attack.
Paul Dewar, a candidate for the leadership of the New Democrat Party following Jack Layton's death, has accused the Harper government of attempting to "roll back" equal marriage in Canada and "betraying the trust of thousands of same-sex couples who came to Canada looking for equality" after the government intervened in a divorce case of two non-Canadian women who married in Canada, saying the Canadian marriage was never valid because their home countries do not recognize same-sex marriage. According to Dewar's website, the government move effectively rules thousands of Canadian marriages null and void. It also sets from the Right. We often felt we were being pulled off course to deal with accusations our 'true' agenda was to legalize pedophilia or to create an environment in which marrying ones daughter or son would also be legal. That details such as what would happen should a same-sex marriage, like any marriage, fail never got fully addressed is not surprising since our focus was on the success of the initiative. A few voiced some foresight and talked about what if scenarios, but there was so much work to be done, such scenarios were, sad to admit, overlooked or shelved. The view was, we would deal with those issues once equal marriage was made law but for now, the focus was lobbying to have equal marriage a precedent that if a home state does not permit a marriage, legalized. In retrospect, it was a major oversight with serious Canada will not recognize the marriage either.
Pushing Petals
GayCalgary Magazine #100, February 2012 ramifications for those individuals who trusted us and, quite logically, assumed everything was in place as it should be. Besides, who thinks of divorce when you are standing before a marriage commissioner preparing to exchange vows of eternal love with the person you fully intend to spend the rest of your life with? Romance and hope tend to wash out practicalities.
Gilles Marchildon, then the Execituve Director of Egale Canada, one of the principle organizations involved in the fight for equal marriage, urged Canadian legislators to move on the divorce issue.
"There's a legal vacuum in this country," he said at the time. "The court will need to make a decision based on current law [but] it also has latitude in terms of the statutes involving common-law partnerships."
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