The federal government is moving to close a legal loophole that could have undermined the marriages of thousands of gay couples from around the world who have wed in Canada.
The Conservatives are expected to detail changes to the Civil Marriage Act on Friday, prompted by a high-profile court case involving two women seeking a divorce in Ontario.
The women, who can’t be named under a court order, were married in Toronto in 2005.
A legal brief filed by the federal government in the case argued that even though the two were wed in Canada, they couldn’t be considered legally married because their marriage wasn't recognized in their Florida or United Kingdom homes.
“In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domiciles – Florida and the United Kingdom,” federal lawyer Sean Gaudet stated. “As a result, their marriage is not legally valid under Canadian law.”
Mr. Gaudet also stated that couples who came to Canada to be married must live in the country for at least a year before they can obtain a divorce.
News of the court case sparked an outcry among gay and lesbian advocacy groups and opposition politicians, who accused the Conservatives of trying to rewrite the rules on same-sex marriage to suit their own agenda.
The Harper government moved quickly to quell the controversy, promising it had no intention of revisiting the debate on the definition of marriage. Justice Minister Rob Nicholson told reporters last month that he would look at options for clarifying the law, adding it was a “legislative gap” that caused the uproar.
“The confusion and pain resulting from this gap is completely unfair to those who are affected,” Mr. Nicholson said at the time. “I want to make it clear that, in the government's view, those marriages are valid.”
Same-sex marriage was effectively legalized in Canada by the courts in 2004. One year later, the Liberal government of then prime minister Paul Martin enshrined it in law.
Some Conservatives blamed the Liberals for failing to address the requirement that one spouse must live in the country for at least a year before filing for divorce in Canada. The Liberals said the issue didn’t stand out as a concern at the time, and that the Harper government had plenty of time to change it.
"What probably happened was that at the time the same-sex-marriage legislation was being passed, people were focusing on the positive and not the negative," Grant Gold, a Toronto family lawyer, said last month. "The euphoria of the moment might have taken over."
Some lawyers have warned of a possible run on divorce courts if the one-year residency requirement – which applies to both heterosexual and same-sex couples – were eliminated.
More than a third of the approximately 15,000 same-sex weddings that have taken place in Canada have involved couples from the United States or other countries.
The lawyer for the two women whose case sparked the controversy said last month that a senior official called to say the government would withdraw its objection to her client’s divorce.
Julie Di Mambro, a spokeswoman for Mr. Nicholson, said the situation raised by the case was an anomaly in civil marriage law and the legal changes will fix it.
The Canadian Press and Staff
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