Evan Wolfson, president of a New-York-based gay rights group, Freedom to Marry, said the federal position will be a major embarrassment for Canada internationally. He said it is too early to predict what effects the move may have on child custody, spousal support or asset division for estranged same-sex couples who were married in Canada.
“One of the benefits that marriage gives to families is security and clarity,” Mr. Wolfson said. “They don’t have to deal with a tangle of uncertainty. If the Canadian government is serious about trying to cast doubt on people’s marriages, it not only insults their dignity and hurts them personally, but it raises all sorts of complex legal and economic questions for everyone who deals with them – employers, businesses, banks, and on and on.”
Beyond the financial implications, Ms. McCarthy said, same-sex couples have looked to marriage to provide a sense of belonging and inclusion in the community. “They returned home with marriage certificates that they got on their wedding day showing everybody they were legally married,” she said. “They gave them to their employers, their benefits people and all kinds of other third parties. And Canada participated in that.”
Their divorce application will be considered next month by an Ontario Superior Court judge. They are asking the judge to either craft an exemption allowing them to divorce or to strike down any legislative provision that has the effect of preventing them from doing so.
“At no time were they advised by either the provincial or federal governments that their marriage was not valid,” the application states. “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.”
The couple’s application says they believed Canada would afford them the respect of ending their marriage legally. “Without this, they cannot move on from this chapter in their lives,” it says. “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.”
Ms. McCarthy said California, which recently faced a similar problem, passed a law recognizing the validity of same-sex marriages involving non-residents so they could obtain divorces. “That’s exactly what we could do here,” she said. “But it requires legislative action, and that is not something that has happened with great speed in relation to gays and lesbians in the past.”
In an e-mail Tuesday, Mr. Gaudet said he forwarded a request for an interview to his superiors. His department provided no further response.
With a report from Oliver Moore in Halifax
