There's a story in the Globe about a same sex couple from Florida and the U.K. trying to get divorced in Ontario.
Divorce tourism. That's a new one. They're actually in a difficult legal quandry: Their home jurisdictions won't grant them divorces, because they aren't recognized as being married; and we don't want to divorce them because they don't live here and don't fall under our divorce laws.
More specifically, the story is about the position being taken by the Federal government, that despite being married in 2005 in Toronto, where same sex marriage is legal, the marriage was invalid from the start because the two resided in jurisdictions where same sex marriage was not lawful.
So now the Harper government is taking heat for subtly trying to reopen the debate on a 'hidden agenda' item, just like the private members bill, "The Unborn Victims of Crime Act", tried to start down a road to reopening the abortion debate, or reversing the government's practice of seeking clemency for Canadians facing the death penalty abroad tried to adjust Canada's approach to capital punishment.
From the start, I had my doubts as to whether or not this truly was political interference, and thought it may just be the effort of a clever government lawyer trying to resolve the above-noted legal quandry. But it seemed like the government argument was far-fetched and baseless.
Then I did some research, and found, maybe not so far-fetched.
Formal Validity and Essential Validity
It turns out that there are two aspects of validity to a marriage, as recognized in Canadian law. There's formal validity, which means the formalities which must be observed in solemnizing the union, and the test for this is "lex loci celebrationis" - i.e. the formalities are governed by the law of the place where the marriage was celebrated. Thus, Canadian law regards a marriage to be formally valid provided that it met the formal requirements of the jurisdiction in which the wedding took place.
Essential validity is a bit stickier, dealing with the question of whether or not two people have the legal capacity to marry. This isn't just about same-sex marriage; it's common to prevent close relatives from marrying, and most jurisdictions have minimum ages for marriage. Some jurisdictions will prevent people from marrying if they don't share a religion or race. And, as it turns out, the way that Canadian law traditionally treats jurisdictional differences does not favour the gay marriage tourism industry.
The jurisprudence is exceedingly scarce on the point, but there are two tests which can be applied. The first test is the "dual domicile" test, which provides that a marriage is only essentially valid if it meets the essential validity requirements of both jurisdictions in which the parties lived immediately prior to the marriage. If this test is applied in the gay marriage context, then only in circumstances where both parties come from places where gay marriage is legal will the marriage be valid. Which kind of defeats the point of coming to Canada to do it, no?
The second possible test, applied less frequently in the jurisprudence, is the "intended matrimonial home" doctrine, applying the essential validity requirements of the place where the parties intend to live. If this test holds the day, then gay wedding tourism is still really impossible, but gay wedding immigration could be conceivable. Still, not particularly helpful.
So under these common law doctrines, the marriage between the couple trying to get divorced...along with all the other couples who flocked to Canada because they could get married here...would be void. They were never married at all.
Solves the problem about not having a divorce mechanism though, no?
The Civil Marriage Act and the Charter of Rights and Freedoms
Of course, it's never that simple. The Charter of Rights and Freedoms guarantees freedom from discrimination on the basis of enumerated and analogous grounds, and it has long been held that sexual orientation is an analogous ground. The Courts began to come down on the side that same sex couples were entitled to marry, under the Charter, and the government decided to run with it, so it enacted the Civil Marriage Act, which codified the right of same-sex couples to marry (while guaranteeing religious officials the right not to perform marriages inconsistent with their own views).
In the Civil Marriage Act, Parliament recognized expressly that the Charter requires same sex couples to have the same rights as heterosexual couples, including access to the institution of marriage.
"4. For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex."
In light of s.4, it seems slightly odd that the Federal government is now arguing that the marriage in question is void because the spouses are of the same sex. Now, I could argue that s.4 displaces the common law dual domicile and intended matrimonial home doctrines. But I wouldn't argue that on its own, because the contrary argument is too easy: s.4 sets the Canadian standard for essential validity, but does not change the interjurisdictional analysis of essential validity - i.e. it does not prevent the essential validity standards of the U.K. and Florida from being applied in the present case.
No, I think an argument based on s.4 alone is quite weak. However, read in context of the Act as a whole, and in concert with the Charter jurisprudence, we end up in a very different place.
Unlike the U.S. Bill of Rights, the Canadian Charter is not limited to domestic effect. It goes without saying that other governments are not subject to the laws of Canada and therefore the Charter doesn't affect them, but the Canadian government continues to be subject to the Charter even in extra-jurisdictional contexts.
Thus, if Canadian investigators go overseas to investigate a crime in another jurisdiction, cooperating with domestic police because of Canadian interests in the crime, our people are still held to a Canadian standard of conduct. No arbitrary detention, no arbitrary search and seizure, etc., even though these practices may be accepted by the host state. Why? Because we regard the Charter as being universal. We think everybody has these rights, not just Canadians or people on Canadian soil, and therefore we will honour these rights everywhere, even if other nations do not.
So when the Civil Marriage Act says that a marriage can't be voided simply because it's a same sex marriage, as a necessary consequence of Charter considerations, we can't start saying to visiting same sex couples, "This doesn't apply to you because you don't live here". It's a Charter right, not subject to common law doctrines like the dual domicile rule.
So...if they're married after all...how do they get divorced?
I'm very sympathetic to this couple. I strongly believe that Canada should and must recognize their marriage. But the couple goes on to argue that, by extending to them the opportunity to marry, Canada is also obligated to provide a mechanism for divorce.
As sympathetic as I am to them, and without intending to sound callous, my response to that proposition is this: That wasn't in the brochure.
The divorce quandry was foreseeable from the start. I'll grant that the possibility of difficulty divorcing probably never occurred to this couple before getting married...or if it did, it probably didn't worry them, for the same reasons that many otherwise rational people don't bother signing 'pre-nups': They really think marriage is forever, despite what the statistics say.
Canadian divorce law is a fairly complicated structure involving federal and provincial statutes, permitting the courts to deal with child custody and support, equalization of property, and spousal support. But you can't just come to Canada to get a divorce - there are residency requirements. So, while it's perfectly fine for a couple to visit Niagara for a weekend and get married, they would have to live here for a year before they could get divorced. This is the law in Canada.
The bottom line is that Canada never advertised same sex divorces. We never promised them, expressly or impliedly, and divorce tourism was never a possibility. We permitted the solemnization of a union which was purported to be forever...how is there an implied promise in that of an exit strategy?
Now, if we did present a mechanism for divorce tourism, how would we deal with child custody, support, and equalization issues? Would people with no real connection to Canada suddenly have the benefit of Ontario law, and be able to use our court resources just because they got married here? Or would our Courts be put into the unenviable position of interpreting other jurisdictions' matrimonial laws - or worse, of extrapolating what the other jurisdictions' laws would do if same sex marriage were recognized there? It's completely implausible. We simply cannot go down that road, granting divorces, splitting up economic units with relationships entirely governed by the laws of another jurisdiction.
I will grant that the quandry presents a very compelling moral argument: They have nowhere else to go. It really is a mess. But that, in and of itself, is not a reason for an Ontario court to take jurisdiction over the matter.
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