Same-sex divorce case legally straightforward, politically exploited

DH examines the legal issues surrounding Canada’s opposition to a lesbian couple’s divorce application and concludes that perhaps Harper isn’t out to destroy same-sex couples after all.

The recent outcry over Canada’s position opposing a divorce application by a same-sex couple is, while perhaps unsurprising, simply astounding from a legal perspective. Unfortunately, it seems the nuances of private international law have been overlooked as politicians (including interim Liberal leader Bob Rae – a trained lawyer!) rush to pounce on the opportunity to characterize this as a deliberate attempt by the Harper government to re-open the debate on the legality of same-sex marriages in Canada.

At the risk of betraying our political leanings, we at DoubleHearsay aren’t thrilled about having the Conservatives running a majority government. And we strongly support same-sex marriage, the full blown version rather than some watered down “civil union” consolation prize. Having considered the DOJ’s position and the existing laws regarding the recognition and enforcement of foreign marriages, however, we believe the current criticism leveled against the federal government to be entirely misplaced.

First, a bit of background to the divorce application itself. It is brought on behalf of an unidentified lesbian couple who married in 2005 and separated in 2009. Neither partner has ever lived in Canada. They are residents of Florida and the United Kingdom. They came to Ontario in 2005 to get married, presumably because as a same-sex couple they weren’t legally entitled to marry each other in their home jurisdictions.

To state the obvious, each state is free to set its own legal requirements for the validity of a marriage. These requirements can be broken down into two categories: essential validity requirements (e.g., who is entitled to marry whom) and formal validity requirements (e.g., what constitutes a legal marriage ceremony).

In Ontario, being a member of a same-sex couple is not a bar to the essential validity of one’s marriage. In Florida and the UK, it is. (Another example of a marriage that would be invalid based on essential validity rules is an incestuous relationship prohibited by the Marriage (Prohibited Degrees) Act, the law that says you can’t marry your sister or your grandmother.)

So if different states have different rules for what counts as a valid marriage, what happens to married couples seeking to have their marriages “recognized” in a foreign state? The answer to this is brought to you by private international law, which sets rules for when to defer to other countries’ marriage laws and when to dig in and apply one’s own laws.

In Canada, the general rule is that the formal validity of a marriage is determined by the law of the country in which the marriage took place (lex loci celebrationis). The rules for determining the essential validity of a marriage are a bit more complicated. The traditional rule in Canada is that, in order for a marriage to be essentially valid, each spouse must have been entitled to marry the other according to the law of each party’s country of residence before the marriage took place (the “dual domicile” approach to the lex loci domicilli rule).

Under the dual domicile rule, even though the formal validity of the unidentified lesbian couple’s marriage may not be in issue (given that they were married in Ontario, presumably according to the ceremonial requirements of Ontario), there can be no doubt that their marriage was “essentially” invalid based on the laws of their places of residence, namely Florida and the UK, since neither of those jurisdictions permit legal marriages between same-sex partners.

This is precisely what Sean Gaudet, counsel for the Attorney General of Canada, argued before the Ontario court where the lesbian couple had sought a divorce. That is, as a matter of Canadian law, the couple is not validly married in Canada and never had been.

To be clear, if the couple had been residents of Canada before they were married, the validity of their marriage would not be an issue. So the criticism that Canada is somehow changing its position on the validity of same-sex marriages is quite misplaced. The problem in this case isn’t Canada’s law on same-sex marriages; it’s the UK’s and Florida’s prohibition on same-sex marriages and the fact that this couple resided in those two jurisdictions before getting married in Canada.

In order to provide a “fix” to the current situation, Canada would actually have to change its private international law rules for the recognition of foreign marriages to something closer to “the law of Canada no matter what”. In the world of private international law, that kind of xenophobic approach offends the principles of international comity and is generally frowned upon. After all, it’s in Canadians’ interests to have other countries recognize Canadian law in certain circumstances, and for that to happen each country has to be seen as reasonable in its approach to private international law.

In addition to the “dual domicile” approach to the lex loci domicilli rule, there’s also a rarely applied approach that recognizes the law of the “intended matrimonial home” as governing the essential validity of a marriage, in cases where the intended location is different from where the couple actually resided before the marriage. By rarely applied, we note that Canadian courts have cautioned that this innovative approach would apply only in exceptional circumstances. In the case of the Florida/UK lesbian couple, this alternative approach wouldn’t be very helpful; there’s no evidence that either of them ever intended on staying in Canada after getting married.

The couple is also claiming that Ontario negligently misrepresented that the couple’s marriage in that province was legally valid. We have no idea what the couple were told when they applied for their marriage licences, but there’s little doubt that the domestic recognition of same-sex marriages in Canada spawned a lucrative wedding tourism industry at the expense of foreign same-sex couples looking to get hitched. Could more have been done to warn these foreign couples that there was no guarantee that their marriage would be recognized at home (much less in Canada, given its application of the lex loci domicilli rule)? Possibly. But at the risk of appearing unsympathetic, it seems to us that any couple that jet sets to a foreign country to take advantage of more favourable marriage laws knows that they’re on questionable legal footing as far as their marriage is concerned.

If this couple gets anywhere with their negligent misrepresentation claim, you can bet Las Vegas chapels will be doubling up on the waivers we imagine they get foreign couples to sign before tying the knot before their favourite Elvis impersonator.

UPDATE: For more discussion of comity and why it’s a good thing, click here. For a contrary view, see Macfarlane’s post in Macleans here.

66 Responses to “Same-sex divorce case legally straightforward, politically exploited”

  1. [...] home jurisdictions didn’t recognize the marriage (the lex loci celebrationis rule); [...]

  2. [...] Less than 24-hours after The Globe and Mail first broke the story, evidence was starting to emerge that we on the anti-Harper side had overreacted, basing our arguments on emotion and suspicions of a hidden agenda rather than the evidence.  Furthermore, the usual right-wing defenders of the Harper government were not the first to jump to his defense.  The information that this whole incident was an overreaction to a misunderstanding of the law came from pro-LGBT, anti-Harper websites.  Here’s one example. [...]

  3. SW says:

    So after reading all of this, I realize there seem to be a large number of potential problems dealing with peoples’ marriages and rights.

    If it is correct that you must be a resident of Canada to be able to legally be a partner in marriage when you marry another person in Canada, would that apply if the country of origin of the person you marry is not a resident of Canada? If Canadian law were to say yes, but the law from that person’s original country says no, which laws would take precedence? Also, if the laws of the original country state that a person born of that country cannot marry under certain circumstances, even if that person has become resident of the country they are married inprior to the marriage, which countries laws would now take precedence?

    Taking it a further step…if a person has come to Canada from a country where there are class and honour issues, resides in Canada, then marries or simply acts in ways that create class or honour dissension by the laws of the first country, assuming said laws do not recognize borders as mattering in cases of class and honour issues, can that person legally be mutilated or killed in Canada by family members, with said family members then exempt from Canadian laws with regards to those actions?

    I think a lot of thinking will need to be done upon all of these issues. Human rights, religious rights, internationally accepted legalities….all these things are starting to need to be considered. The extent of the effects are enormous.

    • DH says:

      SW, thanks for your thoughts on this.

      One thing you mentioned that I wanted to clarify:

      If it is correct that you must be a resident of Canada to be able to legally be a partner in marriage when you marry another person in Canada, would that apply if the country of origin of the person you marry is not a resident of Canada?

      You don’t have to be a resident of Canada to legally marry someone here. Anyone can participate in a marriage ceremony within Canada (provided they meet the locally developed rules for doing so), but the question here is whether that marriage will be recognized as valid within and outside of Canada afterwards. In order for the same-sex couple’s marriage to be essentially valid (with respect to its “same-sexedness”), they would have both had to have been residents of Canada or of any other jurisdiction in which same-sex marriages were legal.

      As for which law “takes precedence”, it’s essentially the law of whichever country/ies the partners lived in at the time of the marriage. If that country has what we in Canada view as “backwards” marriage laws, then traditionally we’d defer to those foreign laws on the theory that the partners have established themselves in the country (or countries) from where those laws emanate and so that’s the country (or countries) whose laws should be applied to their marriage.

  4. m Andrea says:

    It pains me greatly to notice that the legal system has nothing to do with either logic or justice most of the time.

    Judges nowadays are taking the position that their purpose on the bench is to remain silent when a rich person with a lawyer uses the law in an obvious incorrect way, even though that disadvantages poor people who cannot afford $350 an hour for a lawyer to protect their rights. What’s the point of even having a damn judge in that case? We might as well put a cardboard cut-out of Elmer Fudd on the bench and let the rich folks do whatever the hell they want.

    And then those bozo judges demand respect. For what, exactly? For pretending to be Elmer Fudd?

  5. m Andrea says:

    eh, sounds like a bunch of lawyers who (1) want more billable hours and (2) need to take a logic class.

    Canada was willing to let these foreigners have a marriage ceremony in Canada despite the fact that their home countries didn’t legally recognize the marriage. So logically there’s nothing stopping Canada from letting them have a divorce ceremony in Canada — except a bunch of lawyers who (1) want more billable hours and (2) need to take a logic class.

    • Derek says:

      I don’t think you understand the problem.

      The problem is that a same sex marriage (and consequently it’s divorce) is not recognized in many places outside of Canada. Because of that, the laws pertaining to said divorce are not applicable.

      So going back to the couple in question, not only can they not get their same sex marriage divorced in Florida, if they were to get it done in Canada the judgements pertaining to that divorce would not be enforcable in Florida.

      So sure, Canada could let these people come here, file for divorce and pay lawyers for more billable hours, but ultimately it wouldn’t actually accomplish anything.

      • Nathan says:

        “So going back to the couple in question, not only can they not get their same sex marriage divorced in Florida, if they were to get it done in Canada the judgements pertaining to that divorce would not be enforcable in Florida.”

        Though since the marriage would also not have been recognized in either Florida or the UK then they would also be not considered legally married in either jurisdiction and thus not able to gain legal or taxation benefits from such and would be legally entitle to marry in either jurisdiction (though for that marriage to occur it must be legal in that jurisdiction obviously), this would make recognition of the divorce irrelevant with regards to their interaction with the state and a divorce legally unnecessary [please note i am not suggesting that this means they should not have the right to dissolve their relationship].

        As i see this it all stems out of an ‘administrative’ error at the time when the marriage license was issued and the subsequent marriage certificate issued. As one party was resident of a country that did not recognize the marriage Canadian law does not recognize it (even presumably had one of the parties been Canadian/resident in Canada).

        I personally married here as a resident and citizen of one of the two countries this couple is from, to a resident citizen of Canada. If my country of residence (at that time) did not recognize our marriage then it too would presumably have been void by the same process [though i would be interested to know if it would then have become valid once i became resident in Canada], something i am genuinely thankful is not the case and i can only imagine the pain caused to individuals who had believed themselves legally married (at least within Canada, they will as like as not already have known this would not have made them ‘married’ in their country of residence/citizenship) who have subsequently discovered that this may not be the case.

    • John G says:

      Well, no, because if Canada did let them get divorced, that would be more work (and billable hours) for Canadian lawyers.

      However, the law could be changed to reduce or remove the residency requirement for an application for a divorce from a marriage performed in Canada, without regard to the essential validity of that marriage.

      OTOH since the esssential invalidity of the marriage by the law of the domicile applies in Canada too, the marriage is not valid here – which is what the federal lawyer said.

      There are lots of cases when we want personal law to be the law of domicile of the person, and where Canadians benefit from it in foreign countries. Throwing the whole concept overboard is risky. Carving out exceptions has to be done very carefully, since other countries can play the same game.

      • Khimberly says:

        ? ? ? ?? ?, ?? ?? ?? ? ?? ?? ?? ?? ? ?? ?? ? ??? ?? ?? ? ? ? ? ? ? ? ? ? ? ? ?? ? ? ? ? ?? ? ? ? ? ? ? ?? ?? ?? ?? .?? ?? ?? ? ? ?? ? ? ? ? ? ?? ? .//I was on long leave. I saw ur response only now. As u r not colobrtafme with English, here s my response in Tamil:??? ? ? ? ?? ?? ? ??? ?? ?? ? ?? ?? ?? ?? ? ? . ??? ? ? ? ?? ?? ? ? ? ?? ? ? . ??? ?? ?? ?? ?? ? ? – ?? ? ? ? ?? ?? ? ?? ; ?? ? ? ? ? ?? ? ? ?? ? ? ??? ? ?? ? ? ? ? ?? ? ?? !- ? ? ? ? ? ? ? ? ? ? ? ?? ? ? ? ??? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? . ?? ? ?? ? ?? ? ?? ? ?? ? ?? ? ? ??? ??? ? ? ? ?? ? ? ? ? ? ? ?? ? ? ? . ??? , ? ?? ? ? ? ? ? ?? ?? ? ? ??? ?? ?? ?? ?? ?? ? ? ?? ? ?? ?? ? ? ? , ??? ? ? ?? ? ? ?? ? ?? ? ? ?? . ?? ?? ?? ? ?? ? ? . ?? ? ??? ?? ?? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?? ? ?? ? ? ? ? ?? ? . ?? ? ? ? ? ? ? ??? ?? ? ? ??? ??? ? ?? ? ? ? ? ? ?? ??? ? . ? ? ??? ? ? ? ? ? ? ? ? ? ? ? ?? ?? ? ? ?? ? ?? ? ? ???? ?? ? ???? ? ? ? ? ? ? ? ?? ? ? ? ? ? ?? ? ? ???? ??? ?? ? ? ? ? ? ‘?? ? ? ? ? ? ?? ? ? ? ? ? ?? ‘ ?? ??? ? ? ?? ? ? ? ? ? ? ? ? ?? . ? ? ? ? ??? ? , ? ? ?? ? ?? ??? ? ? ?? ? ? ?? ? ? ? ? . ??? ? ?? ? ?? ? ? ? ?? ?? ? ? ?? ?? ? ? ?? ? ?? ?? ?? ? ? ? ? ? ? ?? ?? ? ? ?? ?? ?? ?? ? ? ? ? ? ? ? ?? ?? ? ? ?? ?? ? ? ?? ???? ?? ?? ! ?? ?? ?? ? ? ?? ?? ?? ? ?? ? ? ?? ??? ? ? ? ?? ? ? ? ? ? ? ? ? ? ??? ? ? ? ?? ?? ? ? ? ? ?? ? ? ? ? ??? ? ?? .

  6. Sharon says:

    I strongly support equal rights regardless of sexual orientation or identification, and I have worked for that cause.

    Regarding this case of a foreign state not recognizing a Canadian marriage, the bottom line is that Canada has no control over a foreign country/state’s laws. Every recognized state is soverign, and makes its own laws.

    I wish there was a way to have broad international human rights trump, both in law and in practical effect, any domestic legislation, but countries refuse to give up state soverignty.

    That is one reason why we are so lucky to live in Canada; our laws – although not perfect – have entrenched human rights. Many countries and states do not support human rights to the same extent as Canada.

    Diplomacy and the use of force can influence these laws, and I believe countries that recognize human rights should use their influence to improve conditions in other countries with a poor human rights record. I think Canada should use diplomacy to encourage other countries/states to recognize same sex marriage. I think that is what people should be asking the Harper government to do now.

    If you live outside of Canada, and your state/country does not recognize same sex marriage, and you dearly want to get married, your options are few. The safest legal bet is to move to a jurisdiction where same sex marriage is recognized. It is often not practical or possible, and it is not fair, but it is reality. I wish it was not the case.

    I hope the world evolves, and I hope that individual people actively work towards advancing and strengthening human rights, but until things change, you have to take care of your own interests the best that you can.

    I would strongly suggest consulting a lawyer before you get married in any foreign jurisdiction – regardless of sexual orientation – to make sure you understand the consequences and requirements. Spend less on the trappings of the wedding itself, and spend that money on informing yourself and protecting your own interests. Not very exciting, but smart!

    I also think that Canadian provinces and territories, and anyone profiting from the foreign same sex wedding industry, should post information on their websites warning people that their marriage in Canada may not be recognized in their home jurisdiction, and that they should consult a lawyer before spending the money to come here to get married. For those in the wedding industry, I think it is immoral to knowingly profit from misinformation. For those in government, I think it would be a public service to inform people travelling to Canada.

    • DH says:

      Sharon, thanks for your very thoughtful comment post. As a lawyer I may be biased but the suggestion for people to get legal advice is very sage indeed.

      As for your “wish” that international human rights law trump domestic law, the Canadian approach takes a decent stab at approaching that sort of a result. For example, as you may know, there’s a very strong presumption that Canadian laws are intended to comply with international treaties by which Canada is bound, which can give judges latitude to interpret Canadian laws to avoid conflicts. But you’re quite right about not wanting to give up sovereignty. I was surprised that even our Supreme Court of Canada was unwilling to foreclose the possibility that, in exceptional circumstances, deporting someone to a state where they faced a risk of torture (prohibited by international human rights law) wouldn’t necessarily offend the right to life, liberty and security of the person under section 7 of our Charter.

  7. NM says:

    Interesting, thanks. What if the law of the foreign country violates a fundamental right of Canadians? Isn’t that what is at issue here? If the SCC says laws prohibiting same sex marriage violate the charter, why would that not supersede any requirement apply international law.

    I guess the question that this raises for me is, whether the Charter protects foreigners on Canadian soil EXCEPT where international law conflicts with the Charter. In those cases, international law trumps?

    • DH says:

      NM, I think to the answer to your last question depends in part, firstly, on whether there is a real and substantial connection between the “foreigners” and Canada other than their presence on Canadian soil and the nature of the law being applied to them, and secondly on whether the alleged Charter conflict amounts to something that much of the global community would agree is manifestly wrong. I try to address this second point in my most recent article on the site.

  8. NM says:

    I have read that common law countries do tend to require validity by both sets of personal laws: the so-called “dual domicile test”, HOWEVER they do so, as long as neither law offends against the public policy of the lex fori.

    Isn’t this how a country controls the amount of unpleasantness it needs to tolerate? It would, presumably, give Canada wiggle room when it finds itself faced with the prospect of acting on another country’s overtly racist laws (ex South Africa’s Apartheid restricitions on marriage). OR in this case, another country’s overtly discriminatory laws.

    Canada could have done this. Why didn’t they? Was that simply the strategic choice of one JoD lawyer who did not see it raising any red flags and so did not think to raise it as a possible issue to any of his superiors?

    • DH says:

      The public policy exception is much, much narrower than its name might suggest. I’ve been looking for examples of it having been applied in common law jurisdictions.

      The Civil Code of Quebec’s statement of the public policy exception provides what I think’s a pretty helpful description of what’s covered: “The provisions of the law of a foreign country do not apply if their application would be manifestly inconsistent with public order as understood in international relations.” That language is consistent with the Hague Conventions.

      An oft-cited example of the public policy exception that arose in the recognition context is the 1941 decree by Nazi government depriving Jewish emigres of their German nationality, which in turn led to the confiscation of their property. The UK House of Lords had no doubt that a law of this nature was “so grave an infringement of human rights that the courts of this country ought to refuse to recognize it as a law at all”.

      As strongly as Canadians support same-sex marriage (although, as I pause to think about it, I shudder at the thought that it might not actually survive a straw poll), I doubt we can confidently say that the law of another country that doesn’t yet recognize SSM is hardly deserving of being recognized as a law at all.

  9. Jeremy says:

    Not to be a pedant, but the Marriage (Prohibited Degrees) Act says you CAN marry your cousin (but not your sister).

  10. Eric says:

    What about interracial, interfaith, or even intercaste marriages? Are these also not allowed in Canada if the parties are domiciled in countries where these kinds marriages are prohibited?

    I grasp that there is a technical legal case laid out by the linked post, especially regarding the essential reciprocity of having Canada recognize the marriage laws of other states. But the logical conclusion of doing so is prohibiting a whole host of other marriages based on frankly parochial and racist marriage laws from other countries. Do we really want to say a couple of one black person and one white person cannot be legally married in Canada because we want to respect their countries’ laws? What happened to a strong Canada, willing to stand by its principles, even if its unpopular?

  11. ah123 says:

    So if I understand this correctly: you are suggesting that the “fix” for this situation – namely to change private international law rules on foreign marriages – would offend the principles of international comity regardless of the fact that it trumps our Charter, and therefore should not be pursued? And because Canada wants to be a good “international citizen” we ought not to rock the boat even though it might extend this very exclusion to many marital pairings that are impermissible in other countries? Wouldn’t it be more in line with our values and principles, as well as easier, to just change the residency requirements for divorce in Canada and allow this, and other, couples to deal with their Canadian marriage and dissolution issues here, and let foreign jurisdictions decide whether they recognize a Canadian same-sex marriage (like in Israel and Russia)? Laws change and evolve over time. I’m not very convinced by the position that just because something is a custom, even though it violates equality principles, should be left alone.

    • Josh says:

      The Charter protects Canadian citizens, if it were illegal to own alcohol in another country and somebody visits Canada, buys booze, then brings it back to their home country, they wouldn’t be protected under Canada’s Charter Rights! This is a pretty black and white issue… would we allow a Canadian citizen arrested for murder in Texas get the death penalty? No way in hell, so enough with the double standards.

    • DH says:

      ah123, the residency requirement for the divorce is only of two barriers to this couple’s divorce application (the other being that their marriage itself is not valid.) As for you whether Canada should rock the boat on the comity front, I’ve tried to expand on my thoughts on that issue in my most recent article on this site.

  12. [...] it at Double Hearsay. © Copyright Navigator Mobile 2012. All rights [...]

  13. Wendy says:

    Well, this does lend some clarity to the basic situation, at least. Interesting how quickly the facts (such as they are) get misinterpreted in the media. I am very glad at least to find out that this doesn’t mean the government is going to reopen the gay marriage issue or make illegal the marriages which have already taken place.

  14. Tyler Dellow says:

    I went to law school with this guy. The person saying “Your language belies your profession of neutrality” is nuts – he’s very pro-gay marriage.

  15. Eleanor says:

    This article is consistent with what I learned in law school 25 years ago. The marriage of a same-sex a couple domiciled in Canada when they married and who married in Canada will be recognized as valid according to conflict of laws rules.

  16. C2 says:

    Your language belies your profession of neutrality.

    It is very possible for the government to not direct official attention to this issue and allow normal granting of the request. Foreign jurisdictions, if they so wished, could very have brought this issue forward.

    However, we have ideologies getting involved in decisions in this country. This is just another case of it.

    • Patrick says:

      There was no official attention to this issue: the couple tried to get divorced in Canada; they can’t because they don’t live in Canada; they complained that this was discriminatory because they aren’t allowed to divorce in their home jurisdictions; the gov’t lawyer tried to help out by suggesting that their marriage wasn’t valid (so they could have an annulment if they can’t have a divorce); and then the media went ape by spinning it into a sexual orientation issue. It’s not.

      The Maltese aren’t allowed to divorce either, gay or straight. We don’t allow them to come here to get married, live in Malta, and then come back here to get divorced, because that’s not how marriage and divorce law works. You have to have valid marriages and divorces in the country in which you live- it doesn’t matter if some foreign country (Canada) thinks it’s alright.

      One interesting question arise though: why can’t you get divorced in the country in which you are married? In contract, you can choose which country’s laws apply to dispute resolution (when you enter into the contract, not after the fact), why not in marriage?

      • CB says:

        I would call the “help” from the government lawyer Official Attention. Considering that the couples lawyer “nearly fell off her chair” when she received the government submission, I’m not sure it was particularly helpful. This, especially considering that they had to realize they were flipping the bird to thousands of couples who had come here to wed, and the fact that they were opening the provinces up to lawsuits for performing invalid marriages. Apparently the government lawyers also intervened in the divorce of a resident couple who had been wed in a UK Civil Union, arguing that the union did not equal marriage – so there’s a pattern here.

        In all fairness to Harper, statements from the government today would indicate that they aren’t interested in having a horse in this race, and will be looking for ways to accommodate divorces for our tourists.

        • PT says:

          CB : in fairness to the gov’t lawyer, wasn’t it pretty much the pro-gay marriage side of the debate that was most strongly in support of the idea that a civil union was not the same as marriage?

  17. CB says:

    It seems to me that this is an interpretation of the law by the government, and that a different interpretation could have been presented to the court if they so desired. In other words – this was the interpretation that pleased the government.

    It seems quite a leap to say that a contractual process that has been entered into in good faith by all involved is suddenly null and void. It also seems clear to that the court is most likely to determine that in applying the dual domicile test the US law would offend the pubic policy of Canada (discrimination based on sexual orientation). Am I out of line here, or is there a reason why the government couldn’t have taken this position themselves?

  18. Ione says:

    What comity or reciprocity is there in international same-sex marriage law? A same-sex Canadian couple can’t have a destination wedding in the UK or Florida, despite having capacity to marry in their home domicile.

    As far as “wedding tourism” goes, I don’t see the benefit of Canada disregarding the Charter in favour of the discriminatory laws of other countries. There is no pressing need for us to marry non-residents, so if we aren’t going to do so in a manner that respects equality, why do so at all?

    Even more concerning is that a strict application of the dual domicile rule would invalidate same-sex marriages where one or both parties weren’t resident in Canada (or another SSM country) prior to the marriage, even if both spouses currently reside in Canada. Even if this appallingly unjust situation the case, and it isn’t saved by the Charter, it would take a bloody cold decision to casually assert so in Court without trying to help (or at the very least, properly notify) the affected parties.

  19. Lucas says:

    Fair enough. But if we’re going to take the position that international comity outweighs Charter rights, then we’re bound to uphold a quite a bit of ugliness:

    Henceforth, no Saudi woman in Canada shall marry any non-Arab man (without, of course, a dispensation from the Saudi king.) It just ain’t done.
    Marriages here between Egyptians and Israeli Jews are off. Everyone knows that, in Canada as in Egypt, that’s just a front for espionage. And whether you’re in Kamloops or Kuala Lumpur, don’t go trying to marry a Muslim Malaysian if you’re of a different religion. Tsk tsk. If you’ve made the mistake of marrying a Japanese woman within six months of her divorce, it doesn’t count here or in Japan. (If, on the other hand, you’ve tied the knot with a Japanese man who divorced within the last half year, breathe easy. Japanese/Canadian law says your marriage is in the clear, equal protection by gender under the Charter be damned. Comity, you know.) And (though I may be wrong about this last one), it seems to me that Jewish Israeli-Canadians married here by a non-Orthodox rabbi are effed as well.

    Of course, none of this is actually a problem, unless you’re actually serious about enforcing comity as a legal principle that overrides Charter rights. If, on the other hand, this is all just a means of holding same-sex marriages to one standard and straight marriages to another, we’re probably fine.

    • DH says:

      Yes, accepting a bit of what we consider ugligness is part and parcel of international comity. Consider, though, that one country’s ugliness is another country’s standard practice.

      Most choice of law rules are tied to the jurisdiction with which the parties have most concretely associated themselves, either through their residence, conduct or freedom of contract. Linking marriage validity laws to place of residence (existing or intended) makes good sense. If people don’t like the marriage laws in their own country and don’t see any hope of reform from within, they can consider voting with their feet and moving somewhere else.

      • Lucas says:

        I understand your point, and I don’t think that we should simply disregard comity in any case where ‘Canadian’ values aren’t in synch with those of another country’s, but it seems to me that making comity the be-all-and-end-all standard against which problems of this sort are judged amounts to an abdication of Charter protections. That approach implies potentially quite a lot more than tolerating the odd unfortunate marriage case. This is particularly evident in the instance of SSM, where hundreds, if not thousands of couples were given to understand that they were married–indeed, it doesn’t take much googling to find instances of foreign couples who came to Canada to get married only after seeing promotions encouraging them to do just that, none of which made mention of the fact that the marriages on offer would be invalid if said couples were unfortunate enough to live in, say, Florida.

        Given that Charter rights regarding marriage apply as fully to non-citizens as to Canadian nationals, I think there’s a strong case to be made here that considerations of comity are subordinate to those of what’s now regarded as a fundamental individual freedom. Emmett Macfarlane puts it better than I could, in a piece I urge anyone here to read in full ( http://www2.macleans.ca/2012/01/12/are-some-marriages-are-more-equal-than-others/ ): “The point is that the Charter applies here. Respect for the laws of other jurisdictions has limits. Either we recognize foreign marriages or we don’t. We cannot make unconstitutional distinctions based on the laws of other jurisdictions.”

        Last, I appreciate the obvious knowledge and familiarity with relevant legal precedent you’ve demonstrated here, but I can’t let this go without taking issue with your closing thought. The idea that, say, a Saudi woman who objects to her country’s marriage laws should simply ‘vote with her feet’ strikes me as pretty glib, even by the standards of internet comments’ boards, and not in keeping with the nuance of the rest of your post. I don’t know that we need to throw our doors open to the oppressed of the world, but on an issue as fundamental as this one, I’m not convinced that the principle of comity is sufficiently binding to warrant disregarding the Charter of our own country.

        • DH says:

          Lucas, I’ve been thinking a fair bit about Macfarlane’s suggestion that the Charter dictates a different result here. My initial reaction is that, while Charter values necessarily inform the application of the common law private international law rules recognizing foreign marriage laws, I don’t see that application as running afoul of the section 15 equality guarantee. I hope to work my way through that analysis more thoroughly and post a more fulsome response in due course.

          As for my closing thought about Saudi marriage laws, I’m sorry if my comments came across as “glib”. Obviously if she’s being mistreated or tortured in the sense that many of us perhaps assume is the case for Arab women, there are other (albeit imperfect) mechanisms for trying to address that (e.g., international human rights protections, refugee protection, etc.). In your example your focus was on her opposition to her state’s marriage laws, so my suggestion that she “vote with her feet” was based on the marriage law issue being for her the only one of fundamental importance. If that were the case, setting down roots (and paying taxes, becoming politically active, subjecting yourself to potential conscription, etc.) in another country whose laws are more closely aligned with her views is, I believe, the only non-hypocritical thing to do.

          • Paperchaser says:

            The example of the Saudi woman “voting with her feet” so as to be able to marry the man of her choice wasn’t glib so much as sad. I’m not aware of any Saudi women who have been granted refugee status in Canada so as to be allowed to marry the man of their choice (that’s not to say there haven’t been any; I’m just not aware of them). FWIW, there have been Saudi homosexuals who have been granted refugee status in Canada because of the legal and physical dangers their sexuality posed, and of course it’s right that they obtained that refugee status.

            In any case we (not to mention a lot other commentators who have been banging on about the Saudi marriage laws) would do well to bear in mind that the legal and social situation of a woman living in Saudi is not on the same spectrum as same-sex couples living in the US.

            In that vein, the reason Dan Savage could ask his rhetorical question about a Jewish man and a Saudi woman without any backtack is that the odds of a Saudi woman and a Jewish man being resident in Saudi, taking a trip to get married in Canada, and then continuing to be resident together in Saudi are so low that my guess is it has never actually happened. If it had, we would be back into the gray areas we see in this case, which is one of the reasons – and not the most important reason – it’s probably never happened.

            My guess is also that people who knew their lives depended on it – which is not the case for same-sex couples living in the States and getting married in Canada – would invariably take the time to check the fine print themselves before signing any contracts, and choose their place of residence with equal care. And my emotional reaction is that anybody who chooses to sign something as serious and life-changing as a marriage contract should do their own homework first.

    • Patrick says:

      If you live in Canada, you don’t have to worry about any of this. If you don’t live in Canada, you probably shouldn’t be trying to rely on Canadian law to protect your rights

      • Ione says:

        A strict application of the dual domicile rule would void same-sex marriages where one or both parties wasn’t resident in Canada before the marriage, even if they are now.

        • DH says:

          That’s correct. If formal legal recognition, rather than symbolism, is what’s sought, they’d have to (re-)marry after becoming resident in Canada.

          • Jeremy says:

            If someone’s residency were sponsored by their (putative) spouse, and their marriage was invalidated, would their residency also be threatened?

    • Patrick says:

      Also, this rule isn’t entirely misplaced: imagine a Canadian went to Afghanistan, acquired four child wives, and then tried to get those marriages validated in Canada. I’m pretty sure no one wants that marriage validated because it violates Canadian law: the law of the couple’s countr(ies) of residence are very important, not just the law of the couple’s country of marriage ceremony.

      • Ione says:

        I think the closer parallel would be someone visiting here with four child brides for the wedding ceremony, then returning home. Would we apply the dual (quintuple?) domicile rule to decide that they had capacity to marry in their home jurisdiction, and happily go ahead with the ceremony for them? Of course not.

    • While I agree with your outrage, Lucas, all of those off-putting situations only become issues if the people in question have travelled to Canada for the express purpose of marrying.

      So according to this interpretation of international law, if that Saudi woman takes a trip to Montreal to wed a non-Arab man without royal dispensation, then immediately heads back overseas, she would not be legally married.

      Ditto the recently divorced Japanese woman who immediately gets married during her first few weeks in Vancouver, the Egyptian who marries an Israeli Jew during a weekend in Windsor, and the gay couple who’ve never set foot in Moose Jaw, but make the trip to hold hands in the chapel.

      At least that’s my understanding.

      And let’s turn this around – if a marriage to a minor is arranged and forced upon the child in another place, would that union be upheld here in Canada if put to a legal test?

  20. DH says:

    Update: Simon Fodden at Slaw.ca has a helpful analysis of his own available at http://www.slaw.ca/2012/01/12/same-sex-divorce-and-conflict-of-laws/.

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