Mercedes Allen

Will Canada Nullify Non-Canadian Same-Sex Marriages?

Filed By Mercedes Allen | January 12, 2012 7:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Canada, marriage, marriage equality, same-sex marriage, Stephen Harper

During the March 2011 federal election, Prime Minister Stephen Harper had vowed not to reopen the abortion and same-sex marriage debates. That was good enough for some Canadians, who elected the neo-liberal Conservatives to their first full majority government last year.

While Harper reiterated his pledge not to reopen the debate on same-sex marriage yesterday, a government lawyer entered a submission in a divorce case involving a couple from Florida and the United Kingdom stating that a same-sex marriage performed in Canada is not a legal marriage if the couple does not live in Canada. It's estimated that over 5,000 marriages have been performed for non-Canadian couples since 2004, when marriage equality was attained.

[Martha] McCarthy told Toronto host Matt Galloway on CBC Radio's Metro Morning that the government lawyer's argument in this case came as a shock.

"[I was] very surprised... Fell off my chair surprised," said McCarthy, a prominent Toronto lawyer with a long history of involvement in same-sex marriage cases.

Former Toronto Mayor David Miller isn't buying Harper's contention that he's unfamiliar with the case:

"I ran a major government - the sixth largest government in Canada - and I can tell you that this kind of decision would not happen without the Prime Minister being briefed," Mr. Miller said.

The Globe and Mail also interviewed a couple who could be affected by the move, and noted:

While same-sex marriages are not legal in Virginia or in North Carolina, where the couple lived previously, Ms. Heggemeier said they have been able nonetheless to use their Canadian marriage certificate to obtain spousal benefits from employers and be recognized as a couple by their doctor.

In December, a Conservative backbencher also voiced an intention to reopen the abortion debate. But even without reopening any discussion, significant strides occurred in 2011 to chart a path which mirrors the anti-abortion movement upswing in the United States. This leads one to wonder if the promises are more about ensuring that there's no debate, rather than promises not to act on these issues.

At this point, the opinion filed remains only a legal opinion - albeit from the Department of Justice - and has not been ruled on in a court of law.

Today, Lambda Legal, the National Center for Lesbian Rights, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, and Freedom to Marry released a joint statement regarding the news:

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.


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.

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