Surprise! Your Canadian Gay Marriage Doesn’t Count

via the National Post

Canadian Prime Minister Stephen Harper served notice earlier today in Halifax that the 5,000 same-sex couples from abroad who have been married in Canada since it became legal in 2004 are not legally married after all.

The notice is a result of a test case in the Ontario Superior Court in which a Department of Justice lawyer told a lesbian couple seeking a divorce that they were never married in the first place, because gay marriage isn’t legal in England or Florida, where they normally live. The lawyer claims that divorce is only an option for people who have lived in Canada for a year or more, and who have a valid marriage in the first place.

According to the couple’s lawyer, Martha McCarthy,

“It is offensive to their dignity and human rights to suggest they weren’t married or that they have something that is a nullity. It is appalling and outrageous that two levels of government would be taking this position without ever having raised it before, telling anybody it was an issue, or doing anything proactive about it.”

The divorce application itself reads, in part,

“At no time were they advised by either the provincial or federal governments that their marriage was not valid. In addition to the emotional distress caused to the joint applicants, they specifically incurred legal and travel costs associated with a marriage that was promoted by the provincial and federal governments, and which is now being denied. […]

Without this, they cannot move on from this chapter in their lives. It is legally and procedurally unfair for a government to grant the right to marry, to perform such marriages, and then leave the Joint Applicants with absolutely no remedy.”

The Ontario Superior Court is expected to rule on the divorce proceedings next month. The couple has asked to either be allowed to divorce, or for any provision preventing it to be struck down.

Unsurprisingly, the notice has already been the subject of a lot of outrage, both nationally and internationally. David Miller, the former mayor of Toronto and a law professor at York University, told the Globe and Mail that he is “saddened and, as a Canadian who does a lot of work abroad, I’m very embarrassed.”

Kathy Heggemeier, who lives in Virginia and married her partner of 28 years in Toronto a few years ago, said she is “pretty mad at Canada and at Mr. Harper,” and that, “I’m angry but more than anything I’m sad because what I see is another craven politician going after a minority.”

On the Stranger, Dan Savage, who got gay-married in Vancouver in 2005, wrote,

“There will be lawsuits, time and money will be wasted, oceans of ink and pixels will be spilled, before this issue—the full civil equality of gays and lesbians—winds up before the Supreme Court of Canada. I’m confident that justice will prevail—God bless the Canadian Charter of Rights and Freedoms—but the decision to reopen this issue is going to be one massive distraction for the Canadian government.

Gays and lesbians inside and outside of Canada are going to make sure of it.

Now if you’ll excuse me I need to go wake up my husband and tell him we got divorced last night.”

However, Harper has said that, despite his policy-reversing statement on same-sex marriage, he is not actually re-opening the issue of same-sex marriage. At a press conference in Halifax this morning, he said, “We have no intention of further re-opening or opening this issue.” Also (winningly), “in terms of the specifics of the story this morning, I will admit to you that I am not aware of the details. This I gather is a case before the courts where Canadian lawyers have taken a particular position based on the law and I will be asking officials to provide me more details.”

This confidence-inspiring surety is, no doubt, a comfort to the 5,000 foreign same-sex couples who wed in Canada and whose rights, legal status, tax status, employment benefits, and immigration status are now uncertain. Provinces began legalizing same-sex marriage in 2003. It became effectively legal in Canada in 2004, and became a law in 2005. Since then, over 15,000 same-sex marriages have taken place, about one third of which involve couples from outside Canada. While determining how marriage translates internationally is usually difficult, determining what happens with same-sex marriages is an entirely different level of complicated. However, Canada still recognizes Canadian marriages, and should continue to do so.

Not supporting same-sex marriages, and, by extension, same-sex equality, is not only discriminatory, disrespectful, and dumb, but also contradicts a government policy mandate.

Before the 2006 election, Harper campaigned on having a free vote for MPs to decide whether or not to re-open discussion of same-sex marriage. The vote resulted in 175 to 123 against. At the time, Harper said that he would “accept the democratic result of the people’s representatives” and didn’t see re-opening the issue in the future.

He also says he isn’t re-opening the issue now. Except, oh wait, he is. It is entirely possible that the controversy is the result of a single Department of Justice lawyer going a little homophobic and Harper not really knowing what’s going on, which is bad enough. But it’s also possible that the move signals a reversal of policy and opinion, which is unacceptable. In either case, Harper needs to say something more constructive than “I am not aware of the details.” And he needs to say it soon.

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Carolyn is the NSFW Editor for Autostraddle.com. She is also a freelance copy editor and writer, and her work has appeared in Bitch, The Toast, Xtra!, Jezebel, and other places. Find her on twitter.

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61 Comments

  1. Thumb up 0

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    ok, what the actual fuck is this. canada is supposed to be so progressive about getting gay married (even though Harper won’t actually ACTUALLY condone it) and then this happens. this is like saying all those lucky folks who go and get married on some pretty tropical island in the middle of the ocean aren’t legally married back in the states or canada JUST BECAUSE. “just because” isn’t a reason.
    i call bullshit

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    Alright, my first post here.
    This makes me sick. I live in British Columbia, a pretty awesome place. But this? This makes me feel ashamed to be Canadian.
    I personally don’t -actually- know a single person who supports this douchebag we call a ‘leader’. Thousands of people who came here to be married are now suddenly left without husbands and wives.
    I kind of have this mental image of,

    “Come be married! We love you and accept you!”
    ‘LOL JK!’

    It’s disgustingly unfair that this has happened. I’m really, really sorry our PM is a douche. I hope this is fixed somehow.

  3. Thumb up 0

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    Well this new has been the highlight of my afternoon. As my wife said via twitter: “It was a great 3 years, 7 months, and 7 days. :(”

    Now how much money did we spend to get married in Toronto, including the marriage license and fees? Something like $300 bucks? Can we get a refund on that?

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      We were already on our honeymoon from our marriage here at home, but something about getting the legal document added an additional level of awesome. And we had a double wedding with a cute gay boy couple from Texas (we were their witnesses and they were ours). I need to contact them and give them my condolences.

      This really blows.

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          Yeah, it’s still up in the air, I know. But it doesn’t make it sting any less that this argument is being presented. I would think after being out for over 25 years that it wouldn’t still feel like a kick in the teeth every time something like this happens, but I’m surprised at how much this sort of stuff still bothers me.

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            I think that you should petition the Canadian government for your money back if this goes through. Possibly everyone it applies to should actually, that might make them at least think.

  4. Thumb up 0

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    While I obviously agree that the government’s position in this case is hella stupid, I think it’s important to remember that nothing has happened yet. Martha McCarthy: “So, to be clear, at the moment, they only mean that the government intends to make this argument in Court. Nothing has changed in the legal landscape. If they withdrew the argument, or lost in Court, there would be no effect. The shocker is that they are saying it at all.”

    Also, the point about having to have lived in Canada a year before you can get divorced is in fact true. This is law. Stupid law, but law. THIS is what the divorcing couple was originally in court to challenge. The argument about their marriage not being legal in the first place was totally out of left field and has since been incorporated into the issue.

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          That’s what I was going for — anything that upsets the status of same-sex marriage and is not immediately challenged is, itself, upsetting. While right now there’s just a DoJ lawyer telling a couple that their marriage was never valid in the first place, there is always the potential for things to spiral out of control. (An earlier version of one of the Globe articles mentioned that until this is resolved, there is the possibility of huge uncertainty w/r/t various relevant legal statuses. Which is the part where a little freaking out is deserved.)

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    Ridiculous. This is another reminder of the regrettably cavalier attitude some in the the majority take on our rights as a minority group. Like we needed another reminder, please.

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    Fellow Canadians, let’s hound our MPs, and Harper, and anyone else connected with this asshattery.

    I’m in Toronto, where our Harper-esque mayor rolled in on a majority, and managed to unintentionally unify everyone to the point that he may end up being a lame duck mayor. There’s only so much meanness people can take, and as Harper’s voters will discover, eventually the guy who’s mean to queers will be mean to someone you care about, queer or not.

    Let’s do to Harper what’s being done to Ford: make him irrelevant.

    [Oh Jack, I miss you. You would've driven Harper nuts about this.]

  7. Thumb up 0

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    UGHHHHHHHHHHH i hate harper so much
    when there were elections last spring i sat down my parents and told them if they loved me and wanted me to ever get married, they wouldnt vote harper (and they didnt, thx mom and dad!!)

    it makes me so sad that even in canada (the land of free health care and homo marriage….) we have a prime minister against same-sex marriage, against abortion, the list continues……

    i cried so much the day jack layton died.
    SO UPSET RIGHT NOW TOO UPSET TO WRITE A WELL THOUGHT OUT COMMENT SORRY GUYS UGH CANADA

  8. Thumb up 0

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    Erm, just to point out: we do have civil partnerships in England. I know that might not be technically a “marriage”, but as far as most of us are concerned, we don’t know what the cocking difference is, so if you asked us we’d say we had gay marriage here.

    Just so you know we’re not as backwards as that thing about England and Florida makes us sound.

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      Yeah wow, I wonder what that would mean for their tax returns and so on filed in England? I mean in the US I think marriage and civil partnership have slightly different rights etc but over here they are quite literally identical but for the name and who is allowed which one.

      Also just a note, they have civil partnerships in *Britain* not just England. ;)

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      Actually “most of us” know exactly what the difference between civil partnership and marriage is, and are under no illusions that we have gay marriage in the UK.

      You may have noticed the Equal Marriage campaigns going on around you. Or maybe you haven’t, idk, but you’re the first person I’ve known of who didn’t grok (and understand the homophobic implications of) the difference.

      I know a lot of people who’ve considered going to Canada because they can actually get married there. Except now maybe they can’t. Thanks Harper!

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      Apart from the name, there is one major difference between marriage and Civil Partnerships in the UK. You can’t dissolve your CP (it’s ‘dissolution’ not divorce for a CP couple) for adultery, but you can cite adultery as a reason for wanting a divorce if you are straight-married. So there’s that.

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    That was a pretty low statement for Harper to have made.

    But, if you live in a state that doesn’t allow gay marriage, does being married in Canada really matter economically or legally?
    Besides the right to say that I am married, wouldn’t the government of the state that I live in still consider me single? Michigan is still going to make me file taxes separately even if I get married in Windsor, Ontario.
    Unless I am totally off-base about these legal issues and if so someone can correct me.

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      In his post for The Stranger, Dan Savage said that Washington recognises out-of-state same-sex marriages as being the legal equivalent of Washington Civil Partnerships. If his marriage was not regarded as legal in Canada, then it threw into doubt his and his husband’s legal status in their home state (Washington), since they were not CP’d there. So they could have lost some State protections.

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    ok, i’m really confused. isn’t it obvious that if you’re not a canadian citizen/aren’t marrying one, your canadian marriage will not be valid anywhere? but i dont really know anything about law, so please correct me if i’m wrong.

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      Same here. I feel kinda stupid because those were always my thoughts as well. I’ve always just laughed at people who told me I could, “Go to Canada and get married!” (Plus, it’s usually straight people who say it, so I always found it a little insulting, although I’m sure they mean well.) Because… why? I don’t really care if I’m married in CANADA. Canada doesn’t give me rights here in the states. I always thought the thought behind getting married in Canada was because you at least are not discriminated against. But I never thought that there was actually a difference between a marriage in Canada vs. a commitment ceremony at home. Could someone clarify this for me?

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      I could be totally wrong since I’m Canadian and don’t know a ton about the legalities of it all in the US, but I was always under the impression that it depended on your state. If your state allows gay marriage, obvs it would be recognized there (and you probably wouldn’t go to Canada to get married anyways), but there are also some states where, while they do not allow for same-sex marriages to be performed there, they will nonetheless recognize ones that have been legally performed elsewhere.

  11. Thumb up 0

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    It is a sad and horrible situation. However, there is no need to simply jump all over Harper. He did no create the law, he is not revoking it. Please don’t misunderstand, the man is a total creep and does little more than create anger and hatred. There is more to it than Harper waking up one day and saying “I think today I will revoke that silly same sex marriage law”

    To quote a friend of mine (who’s a journalist) “The dispute uncovered by the Globe and Mail centers around a government lawyers interpretation of the law. The lawyer is not a member of parliament. However his boss, the Justice minister, is vowing to see non-residents who were married in Canada be able to get divorced in Canada.”

    First step is to take a deep breath and chill out. I am sympathetic to those who came up here to get married, and I was so proud to be Canadian when they finally allowed same sex marriage. It has only been one day. We didn’t get same sex marriage in a day, and this issue will not be resolved in one day either. There is no point in jumping around, calling people names (no matter how deserved) and failing our arms about. I am not saying just sit back and wait either, just suggesting that there are other avenues to fight this.

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    As far as I have been able to figure out, the whole “not valid” scare is not really accurate after all. Right? All that this is addressing is the gap that currently exists, the one that allows people to go up to Canada in an afternoon and get legally married, but then requires a year of residency to get a divorce. Yes? Because if so, I would say this is a good thing! It’s totally not fair that people who legally married in Canada with good intentions, yet had their marriage fall apart, are just stuck being married. It sucks and it’s not fair. And no, if your country/state doesn’t recognize it, there’s no “real reason” to worry about getting a divorce… except that if your marriage falls apart, you deserve that closure just like everyone else. If your state won’t recognize the gay marriage, they won’t dissolve the gay marriage. Canada hasn’t been allowing divorce without jurisdiction, which comes with a year of residency. It’s been a total lose-lose situation and hopefully, this helps.

    If I am incorrect about any or all of this, please inform me of what you know! I’ve been looking online for info and want some legit answers.

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      …Because though I hate defending Stephen Harper too (euuuugh… *shudders*) I strongly feel that uninformed reactionary outrage is a bad thing from any end of the political spectrum, and can only serve in the long run to hurt the (in this case very valid and important) position of the people expressing it.

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      THANK YOU. That was the most helpful thing I have read. Personally, I never found anything that said they were making all same sex marriages invalid… I found lots saying it had to do with fixing that legislative gap, which is something I agree needs to be fixed. But then other places still had people upset and up in arms about it, like this site, which confused me because AS is a site I rely on to be way more in-the-know than me…. So I was really confused.

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      Thank you for this link! I also found it really useful.

      Important side note: I was reactionary! As that link says, “Reading the Globe & Mail article, and the bajillion subsequent comments, you’d think the PMO had issued a fiat annulling same-sex marriages for foreigners.” When I wrote the post, I basically had that article, and three other Globe articles, and a bunch of articles reporting on the existence of those articles, and that was it. So I went with what I had sources for.

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        Understandable. It’s hard to get the full story when all the major news outlets are being reactionary themselves.

        For the record, as some have pointed out, the fact that the Harper government responded so quickly by assuring everyone they’d change the law to keep foreign same-sex marriages intact is probably in large part due to the reactionary outrage. So maybe I’m wrong in this case.

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