The Harper government has moved to defuse a growing controversy over same-sex marriage with a promise to make legal changes to ensure that non-residents married in Canada can obtain divorces.
Justice Minister Rob Nicholson said that the same-sex marriage that ignited the controversy cannot legally be dissolved, but his department will search for a solution.
“I will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada,” Mr. Nicholson said.
The move came after The Globe and Mail revealed that the Justice Department had taken a legal position that same-sex marriages involving non-residents are invalid – and cannot be dissolved – unless they are recognized as legitimate in the couple’s home country. That quickly sparked confusion at home and abroad from activists and couples who married in Canada.
Political opponents and gay activists feared the move signalled a reopening of the issue that would potentially cast the legality of same-sex marriage in doubt. However, Prime Minister Stephen Harper insisted Thursday afternoon that he would not do so.
“We're not going to reopen that particular issue,” Mr. Harper told reporters at a shipbuilding event in North Vancouver on Thursday afternoon, declining to elaborate beyond mentioning the release of Mr. Nicholson's statement.
“This is a complicated case and the Minister of Justice, I think, has put out a statement clarifying the government's position on that.”
While Mr. Nicholson’s announcement alleviated some concerns, it left one central question unanswered: Does the government consider marriages involving same-sex non-residents to be legal, or not?
A lawyer for the lesbian partners in the Toronto case, Martha McCarthy, praised the government for attempting to rectify the problem, but she said it must go further.
“They should make a public statement in which they clarify that these Canadian marriages are still valid and legal,” Ms. McCarthy said.
The federal position in her case is based on two central propositions. First, couples who came to Canada to be married must live in the country for at least a year before they can obtain a divorce. Second, same-sex marriages are legal in Canada only if they are also legal in the couple’s home country of state.
Legal experts and politicians are seriously at odds over how residency requirements ought to apply to foreigners who were not warned that they might be unable to divorce.
Gay activists warned Thursday that their formidable lobby will mobilize to fight any attempt by the Harper government to push back hard-won rights.
“Have thousands of same-sex couples been misled by Canadian officials for nearly eight years?” said Helen Kennedy, executive director of the gay rights group, Egale Canada.
It also emerged that the Toronto case was the second time in the past year that Justice Department lawyers have intervened to raise obstacles in a same-sex divorce case.
Several months ago, it launched a legal intervention in the case of a Canadian man, Wayne Hincks, and his partner, who had obtained the status of a civil partnership in Britain.
The Crown contended that a civil partnership obtained in Britain is not equal to marriage under Canada’s Divorce Act – notwithstanding the fact that Britain considers a civil partnership tantamount to marriage.
Mr. Hincks said in an interview that the federal intervention has doubled his legal costs and added to the emotional trauma of his divorce. “I have been left to fight a very expensive battle that mostly has been to defend my position against an intervention by the Attorney-General of Canada,” he said.
Mr. Harper appeared caught off-guard earlier Thursday, when a press conference he had scheduled in Halifax was hijacked by questions about the same-sex controversy.
A government source, speaking on condition of anonymity, said that the Prime Minister’s Office cannot always effectively control how departments proceed on files. “There are many times where Department of Justice lawyers ... don’t do anything like what the government wants them to do,” the source said.
Dean Del Mastro, the parliamentary secretary to the Prime Minister, insisted that the Conservatives consider the issue of gay marriage closed. “There’s been absolutely no discussion within our party about this at all,” he said.
However, skepticism about the government’s motives continued to run rampant.
Former prime minister Paul Martin, who brought in the law allowing gay and lesbian couples to legally marry, said the government’s position in the Toronto divorce case is “absolutely ridiculous.”
“We validated those marriages and you cannot retroactively invalidate marriages that you validated,” Mr. Martin said in an interview.
Vancouver Mayor Gregor Robertson warned that human rights begin to erode when policy shifts take place in backrooms and obscure courtrooms rather than in highly visible legislation.
“The current position of the Justice Department is embarrassing, it's flat-out wrong and needs to change,” Mr. Robertson said.
Former Toronto mayor David Miller said any move that called into question same-sex marriage legalities would embarrass Canada in front of the world by upsetting the lives of couples who flocked to the city for marriages they had been denied in their home countries.
“I was so proud to be the mayor of a city that had the first same-sex marriages. It made a strong statement that everybody is welcome in our country,” Mr. Miller said.
Same-sex marriage was effectively legalized by the courts in 2004. A year later, the Liberal government of Mr. Martin passed a bill enshrining it in law.
More than 5,000 of the approximately 15,000 same-sex marriages that have taken place since then involved couples from the United States or other countries.
The couple in the Toronto divorce case – one of whom lives in Florida and the other in Britain – were wed in Toronto in 2005.
With reports from Steven Chase, Karen Howlett, Sunny Dhillon, Jane Taber and Ian Bailey