01.12.2012 11:13 AM

Colour me suspicious

The lawyer in this story, who professes to be an expert in this area of the law, is scandalized, everybody else is to blame, etc.  But how did the expert not see this coming? Like I say, suspicious.

28 Comments

  1. james curran says:

    If it was legal in their country, why the f@ck would they come to Canada to get married. This is a ridiculous interpretation.

  2. Michael S says:

    If it’s a trap, it’s a good one. Justice has a solid case on the point of non-residency alone. Why bring SSM into the mix?

    • Ted says:

      What is the solid case for saying that the marriage is null and void and not recognized in Canada?

      There is no residency requirement for marriage. There is no requirement that the marriage be enforceable in some other jurisdiction.

      There is for divorce so they can’t get divorced here. But the Harper Government is claiming that the marriage itself is a nullity and I just don’t understand the legal basis for that.

      • Tim Sullivan says:

        This no-valid-marriage-by-decree makes no sence. The feds have jurisdiction to grant divorces and that is expressed in the Divorce Act. There is a residency requirement. However, there is none for being married, which is a provincial head of power. The feds cannot dictate to a foreign country what it can or cannot do about a Canadian marriage, validly made in Canada. The foreign power can recognize a Canadian marriage or not, it is not up to Harper’s whims to decide.

        There is an obligation in Cananda to satisfy itself that a foreign DIVORCE is valid IN CANADA. What Canada has to say about the validity of any particular marriage made in Canada is moot.

        I’m not understanding the controversy. Valid marriages in Canada may not be valid outside Canada. Valid divorces outside Canada may not be valid in Canada. Once outside of our boundaries, it is up to the foreign power to determine their own procedures.

        This is all red meat for the Conservative Base (being ani-same-sex marrage) and to placate progressives (we are doing nothing in particular abotu ssm). Tempest in a teapot, IMHO.

      • matt says:

        Canada is not saying the marriage is a nullity per se. Canada is saying that the marriage under private international law for the purposes of the Divorce Act is not recognized. I don’t see how the government can say anything else.

        I agree with Warren that it doesn’t make sense for the “expert” to be surprised. The reason the feds responded to the application was, I assume, because one of the things that application argued was a Charter breach, requiring the feds to be served with a Notice of Constitutional Question. If you tell the feds you have started a lawsuit arguing that the Divorce Act is unconstitutional you should not be surprised when the feds disagree.

        What I am surprised at is Canada’s responses to the “in the alternative” arguments of the applicants. Canada opposes, for example, use of the Court’s Parens Patriae jurisdiction to bridge the legislative gap, arguing that it is typically used only for emergencies or children. That’s exactly what I learned in law school. But politically it’s dangerous and there’s no reason to make that argument. Better to bite your tongue. The other “in the alternative” arguments are things like the Divorce Act being discriminatory and unconstitutional by breaching the Charter. I can see the feds opposing that because a) no government likes to admit in Court that their legislation is unconstitutional, b) doing so would open up some liability issues, and c) the government has a point in its brief that instead of getting a Canadian divorce these folks can gets court orders back home (UK, US) saying that they’re not married, so no harm no foul.

        • Ted says:

          On the underlying claims by the claimants that brought all of this out, I agree. I don’t see a lot of grounds for them. If their home jurisdiction doesn’t recognize equal marriage and therefore also can’t grant them a divorce, then that is not Canada’s issue. They should have considered their own particular, individual legal situation and that is not the Ontario government’s job.

          However, I understand that the Harper Government’s position is that the divorce application is not available for a number of reasons, one being that the marriage is a nullity, it is not a proper marriage.

          I will have to read the actual application when I get a chance, but if that is the case that is absolutely BS and idiotic. It is either a valid marriage under Canadian laws or not. They still wouldn’t get to divorce here because they aren’t residents and that is fine and good.

          But we married them so we should recognize them for all legal purposes. If they then don’t meet the criteria we set down for everyone to permit a divorce, then so be it. It just seems the government is going well beyond that.

  3. SP County says:

    score one for Chretien, he warned us this would be coming, whats left, abortion? capital punishment ?

  4. TheSilentObserver says:

    The question here is whether or not there is a discrepency in the law, i.e, if any marriage performed in Canada yet considered illegitimate in a non citizen’s native country can go unrecognized by the government as well. If that isn’t the case, well…I can’t say this catches me entirely off guard

    • matt says:

      This only concerns the Divorce Act. Any marriage performed in Canada and unrecognized in the home jurisdiction(s), where the couple has not been domiciled in Canada for a year or more, is not recognized by the Divorce Act.

      • Ted says:

        Can you show me where that is the case? Can you show me where it says that a such a marriage is not recognized?

        Section 3. (1) of the Divorce Act merely deals with jurisdiction and says a court cannot hear a divorce proceeding unless one spouse has been a resident for a year:

        “A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”

        Nothing about “not recognized” under the Divorce Act. In fact, the Divorce Act doesn’t even define marriage.

        Moreover, the Civil Marriage Act defines marriage simply as “the lawful union of two persons to the exclusion of all others”. Nothing about residency there either.

  5. Kevin says:

    IANAL, but I see nothing in the Civil Marriage Act that states a same-sex marriage by non-residents would not be recognized in Canada if ssm is not valid where they actually reside. And there is no residency requirement in that Act nor in many of the provincial/territorial requirements.

    On the other hand, in the Divorce Act there is a requirement that one of the two spouses reside for a period of time in the province hearing the divorce proceedings.

    So, a non-resident can come here and pretty much get married within the week, but would need to live here for a year before divorcing.

    Is that right? If so, WTF?

    • smelter rat says:

      I believe you’ve nailed it. And I agree…WTF?

      • The Doctor says:

        The thing is, that provision was in the Divorce Act long before SSM was an issue or became legal or anything like that. The original drafters of the Divorce Act would have never imagined that Canada would become an international forum conveniens for gay marriage, as it has become.

    • Ted says:

      Exactly.

      There is no residency requirement for marriage. Harper’s position on this is total BS.

      The residency requirement for divorce is standard and old. You see it wherever you have divorce laws. It’s there for a whole lot of reasons, one of which is to prevent one spouse going to another country to get divorced when they would not be able to get divorced in their own country. Another is that divorce involves a whole lot of other laws, like division of property and child support and spousal support, and so you can’t have the process split by different jurisdictions. It’s a litigious process so as a basic principle (i.e. one that applies outside of this issue) you also don’t want to encourage jurisdiction shopping.

      In short, divorce is a complicated legal nightmare. You don’t want to turn it into a complicated legal apocolypse by allowing jurisdiction shopping. So you create some rules that apply to the end of a marriage that are inapplicable to the creation of a marriage.

    • Ted H says:

      It is always easier to get married than to get divorced, has been for years. This is just part of the deal for any marriage of any gender combination.

  6. Johnny Tuna says:

    In the immigration context, Citizenship & Immigration Canada will recognize as valid any marriage so long as it was valid by the laws of the place where it occurred. To suggest that a marriage that legally occurred in Canada is somehow invalid ab initio is insane. It was valid in Canada. It should still be valid in Canada. If the couple moved here a year later, after a year of marriage, would Immigration refuse to recognize their Canadian marriage? I doubt it. Divorce laws are different and are often based on residency issues. But to equate divorce requirements with marriage requirements is overreach, and the only conclusion I can draw is that it is intentional overreach done to attack same sex marriage.

  7. International Progression says:

    Harper has just made equal marriage illegal by JUDICIAL ACTIVISM!!!

    Vote out the homophobic bigots!!!

    • WarrenT says:

      What an inane comment.PMSH didn’t write the law. Irwin Cotler did and Martin and Chretien voted for it. Shame on the 3 stooges.

  8. Tired of it All says:

    *gasp*!

    *shock*!

    Please. You want to know what the Conformists are all about, read up on Richard Nixon.

    Said the hapless 905 suburbanite to their spouse “I thought he just wanted to lower taxes.”

    Welcome to Texas, folks. I hope your Dipper vote was worth it.

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