The federal Justice Department insisted in a lesbian divorce case this week that Canada accept the discrimination of other jurisdictions. If foreign gays and lesbians who received marriage licences in this country could not be married back home, they are not legally married, the Justice Department said.
It is an untenable, mechanistic argument – that the "law of domicile," in effect, defeats the Canadian Constitution. Impossible. And unjust. And it is good to hear Justice Minister Rob Nicholson promise to fix this injustice.
The case involves a woman from Florida and one from the United Kingdom. They could not be married in either jurisdiction. Ontario granted them a marriage licence in 2005. Yet Canada said in a Toronto court that they can't divorce, because no marriage exists between them.
Thousands of years of laws and traditions did not stop this country's courts, and ultimately its federal Parliament, from legalizing gay marriage. What is the "law of domicile" (the legal capacity to marry in the place where one lives) next to the mighty and seemingly timeless law of man and woman in matrimony? Yet that law – of marriage reserved for man and woman – fell in Canada.
The higher law, of equality and human dignity, as protected by the Charter of Rights and Freedoms, has changed the basic rules of marriage in Canada. Marriage presupposes a right to divorce, so couples may move on with their lives. And there are sound policy reasons for extending those rights to those from foreign jurisdictions who got married in Canada – to protect the interests of any children involved, for instance. It would also be the just thing to do to continue allowing gay marriage of foreign visitors, and to facilitate divorce, where necessary, by waiving one-year residency requirements in Canada.
The Justice Department has an obligation to fix the anomalous situation facing many of the 5,000 gay couples who came to Canada to marry.
It is more than an anomaly – it's a humiliation, for the couples and the jurisdictions, such as Ontario, that welcomed them here, accepted their tourist dollars and gave them the marriage licences.
This country legalized gay marriage to end exclusion – without ifs, ands or anomalies. Within Canadian borders, all rules on marriage and divorce should start from the premise of inclusion.