Click here to listen to Joe Varnell discussing the implications of the federal governments court filing on the validity of same-sex marriages for foreign nationals.
"In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domicile — Florida and the United Kingdom. As a result, their marriage is not legally valid under Canadian law."
"It appears that Harper is true to his word, he will not impose a social agenda on Canada where it won't wash, but he will export it to other jurisdictions. Reopen debate, no. Export those views, yes."
Adovcacy News -Ottawa backpedals on legality of non-resident marriages
January 12, 2012
Ottawa backpedals on legality of non-resident marriages
By Kevin Bourassa and Joe Varnell
"Let freedom reign ... We are called the Civil Marriage Trail Project in memory of others who have crossed the border for freedom, equality and justice. We're remembering brothers and sisters from another era who crossed the border in an underground railroad trail. We're here in memory of other brothers and sisters who crossed the border during the Vietnam era. We're here like many others who have crossed your border for the beauty and sweet taste of equality and justice. Thank you for that taste. After we crossed your border, by train, by car, and by Greyhound bus, I have to tell you of the beautiful sight of the maple leaf flag. Your maple leaf is, for same-sex couples, what the statue of liberty and the liberty bell has meant for our ancestors. When we see that maple leaf we see equality for all. We see hope for all."
Brendan Fey, U.S Marriage Activist
We were planning to celebrate our eleventh wedding anniversary this Saturday with a little champagne and some welcome "us" time. Just the two of us relaxing and enjoying the welcome reality of getting to mark our anniversary like any other married couple in a country where same-sex marriage has become a non-issue.
Then we read the Globe and Mail.
"Ottawa does about face on same-sex marriage for non-Canadians"
With a mixture of both outrage and sadness, we learned that the federal government has filed documents in a court proceeding involving a couple who were married in Canada in 2005 and are now seeking a divorce. Under the law, there is no residency requirement to be married in Canada, but there is a 1 year residency requirement to obtain a divorce. Neither of the couple in this case is a resident and thus there is an issue. However the documents filed by the lawyer representing the federal justice ministry,currently under Minister Rob Nicholson (a long time opponent of same-sex marriage and equality), seemed to be straying from the residency issue when their submission contained the following argument:
"In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domicile - Florida and the United Kingdom. As a result, their marriage is not legally valid under Canadian Law"
This position strays somewhat from what is supposed to be the issue and has caused a great deal of confusion amongst the almost 5000 couples who came to Canada to get legally married in good faith. We wondered how marriage activist Brendan Fay, who travelled to Cananda from New York in 2004 to get married when it wasn't possible for him to marry at home, would feel?
We recall 2004, when Brendan and his American counter-parts had moved all of us to tears of pride when our visitors broke into a rendition of "O Canada" to celebrate the freedoms they found here. We doubted there would have been any singing today.
The Fear Factor
To be clear, even though some media are reporting that the Canadian Government has 'nullified' thousands of marriages performed for foreign nationals, it is not the reality. Even if many of the social conservatives scurrying along the corridors in Ottawa may wish it otherwise.
All that has happened is that the government has argued a position in documents filed in a single case and a legal argument, even one put forward by the Minister of Justice, is not the same as a change in law or even government policy. It is simply an opinion and historically, when governments in Canada have advanced opinions that run contrary to the fundamental Canadian value of equality, such opinions have consistently been rejected by our courts and the public at large. Foreign nationals married in Canadian should be dismayed, but not panicked.
Cool to Cruel
Canada has historically been seen as a world leader on social justice and human rights. A nation with universal health care, peace keepers and a strong sense of minority rights. Canada was an example to the world. As the Economist put it in 2003, "Canada [was] cool".
During the past several years however, the Conservatives have been working diligently on the international scene to change our image from cool to cruel. Prevented from advancing their social ideals domestically due to fear of political backlash, the socially conservative Conservatives have used international situations to signal their real feelings on controversial matters.
The Conservatives don't want to debate the hot button issue of abortion in Parliament, but they cut funding to groups in favour of abortion in the developing world. They cannot campaign against the rights of women, but they can cut funding to groups that advocate for it. They cannot stop domestic same-sex couples from marrying, but they can express disapproval of equal marriage by casting doubts on the validity of marriages of foreign nationals. The politics of prejudice are often petty.
Late in the day, a "clarification" was issued by the Ministry of Justice, explaining that what the government was working at was how to amend the divorce laws in Canada in order to deal with situations like the one that has prompted the court case. In a statement, Rob Nicholson said that the government was looking at options to clarify the law so that "marriages perfomed in Canada can be undone in Canada."
"I want to be clear", Nicholson went on, "that the government has no intention of reopening the debate on the definition of marriage."
It's curious. If that was truly the government's intent all along, then why try in any way to question the validity of anyone's marriage? Why not make it clear that need for residency was in question, rather than re-enforcing the prejudices of other jurisdictions that Canada is supposed to stand in contrast to by calling the validity of the marriages into question.
The real clarification required of Minister Nicholson was not what the government intended in its document or what it is fiddling with now, but rather a clear and unequivocal statement that the marriages of foreign nationals performed in Canada are legal valid marriages. Period.
Today has served as a good reminder that we must always be vigilant about guarding freedoms that we have worked so hard for and a good lesson for those who oppose equality that they will find it hard to move their agenda forward when their views are constantly stuck in reverse.