Same-sex divorce: in defence of comity and lex loci domicilli

DH’s response to Emmett Macfarlane’s and others’ proposal that Canadian law should override the law of domicile to permit foreign same-sex couples to divorce in Canada.

In today’s follow up to yesterday’s attempt at explaining why the recently publicized Ontario same-sex divorce case isn’t as apocalyptic as politicians and some media commentators have suggested, I will attempt to counter two thought-provoking arguments arising from this conflicts-of-laws imbroglio:

  1. If Canada’s “dual domicile” rules for recognizing the essential validity of a marriage deny the recognition of same-sex marriages in favour of international comity, those rules should be changed to reflect Canada’s position on same-sex marriage regardless of foreign law.
  2. The Charter of Rights and Freedoms should override principles of international comity to recognize same sex marriages otherwise invalid because of foreign laws.

In response to Macfarlane

Emmett Macfarlane, a political scientist at UVic, posted an article on yesterday (“Are some marriages more equal than others”) in which he helpfully distils the issues arising in the same-sex divorce case as being a battle “that pits established equality rights against the intricacies of Canadian family law and principles of international comity…”. Acknowledging that marriages performed in Canada involving non-residents “tend to be governed by the rules of their home jurisdictions”, his central point is that the Charter is implicated here and applies to everyone.

As a consequence, he submits “recognizing the marriages of foreign heterosexuals but not foreign gays and lesbians is a gross infringement of equality rights. […] 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 decisions based on the laws of other jurisdictions.”

(Similar views were expressed in a Globe & Mail editorial, “’Law of domicile’ should have no veto on the Constitution”).

As I will discuss further below, I disagree that the approach (originally) advanced on behalf of the Attorney General of Canada infringes the equality guarantees under section 15 of the Charter. For the sake of argument on the basic point about comity, let’s assume first that there’s no Charter infringement even though by the end of this article you may (still) disagree.

International comity and our lines we draw in the sand

When Macfarlane says that respect for the laws of other jurisdictions has limits, he is bang on. The common law is really good at leaving room for exceptions. When it comes to the recognition and enforcement of foreign laws (including judgments of foreign courts), there are things some jurisdictions simply won’t do.

(1)   Penal laws

States generally will not enforce the penal laws of other states, which have been defined as “suits in favour of the state for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue or other municipal laws, and to all judgments for such penalties.” In other words, the court of one country can’t issue a judgment requiring someone to pay a fine to that country’s government and expect a Canadian court to enforce that judgment by, for example, freezing the person’s assets located in Canada.

(2)   Revenue laws

Same goes for revenue or tax laws. If a state wants to collect on its taxes, it needs to do so within its own borders or negotiate a tax treaty with its international neighbours that extends its reach abroad.

A judgment that was obtained in a manner that offends “natural justice” is also at risk of being disregarded abroad.

(3)   Natural justice

Breaches of natural justice aren’t your garden variety complaints with the judicial process, though; these are fundamental deficiencies with the process such that the outcome can’t possibly be recognized as having been fairly reached. An example of this would be obtaining a court judgment against someone who never had any notice whatsoever of the court proceeding that led to the judgment.

(4)   Public policy – not the nebulous “catch all” you might think

And then, of course, there’s the ultimate discretion not to apply foreign laws on grounds of public policy. Before you get too excited, this doesn’t mean foreign laws get disregarded whenever there’s a disagreement with the court doing the deciding (or the lex fori). After all, if that were the case, what would be the point of pretending to defer to the foreign law in the first place?

The Quebec Civil Code describes the public policy exception as being triggered when a foreign law’s application “would be manifestly inconsistent with public order as understood in international relations.” Mirroring language found in the Hague Conventions, this statement of the public policy/public order exception’s scope makes clear that the public policy standard to be applied isn’t a local standard but one that has international dimensions.

A leading example of the public policy exception being applied is the 1941 decree of the National Socialist (Nazi) government of Germany depriving Jewish émigrés of their German nationality and, consequentially, leading to the confiscation of their property. The UK House of Lords said that such a racially discriminatory and confiscatory law of this sort was so grave an infringement of human rights that the UK courts ought to refuse to recognize it as a law at all.

A more recent example was a case heard by the UK House of Lords in which it was called upon to enforce an Iraqi decree that essentially confiscated ten aircraft owned by a Kuwaiti airline and parked at a Kuwaiti airport while Kuwait had been invaded by Iraq. Using the machinery of the state, the Iraqi government passed a resolution that purported to dissolve the Kuwaiti airline and transfer its property to an Iraqi airline.

By the time the case made its way to the UK courts, the global community had affirmed that Iraq’s invasion of Kuwait was in violation of international law and several UN Security Council resolutions. Even though Iraq later repealed its confiscatory decree, the applicable choice of law rules at the time meant that the Kuwaiti airline had to show the “theft” of the aircraft was illegal in Iraq at the time of the theft. In refusing to give effect to the Iraqi decree that stood in the way of this, the UK Court said this:

“I have already noted that Iraq’s invasion of Kuwait and seizure of its assets were a gross violation of established rules of international law of fundamental importance. A breach of international law of this seriousness is a matter of deep concern to the world-wide community of nations. … Enforcement or recognition of this law would be manifestly contrary to the public policy of English law. … Further, it would sit uneasily with the almost universal condemnation of Iraq’s behaviour and with the military action, in which this country participated, taken against Iraq to compel its withdrawal from Kuwait.”

These examples strongly suggest that there ought to be something approaching global consensus on the repugnancy of a foreign law before invoking the exception. Last time we checked, Canada (unfortunately) isn’t part of a very large club when it comes to recognizing same-sex marriages.

Isn’t the equality rights of same-sex couples of fundamental importance?

To those who argue that substantive equality for a same-sex couple is of foundational importance, and that foreign laws denying that equality are as wrongheaded as the Nazi confiscatory decree of 1941 or Iraq’s self-serving resolution of 1990, I tend to agree. But it remains a leap in my view to say that the global view on same-sex marriage – even involving as it does for us a question of equality rights – is such that any foreign law that don’t align with ours is hardly deserving of being a law at all or would cause grave concern to the worldwide community of nations. These aren’t, after all, laws promulgated by a dictator in North Korea, but by democratically accountable governments in Florida and Mother England.

Even though I’m a strong support of same-sex marriages, I think it would be overstating things to suggest that the denial of their recognition in these circumstances would be found to be “morally repugnant” to a significant majority of Canadians in the way I would expect, say, torture to “shock the conscience” of Canadians generally. By this I should not be taken to mean that recognizing same-sex marriage isn’t “the right thing to do”, but rather that we shouldn’t rush to judge the sanity of other nations when, like it or not, there’s hardly a unanimous view on this issue within our own borders.

So let’s be leaders, not followers!

Whether a majority of Canadians agree with it or not, the law of our land is that Canadian same-sex couples have the same right to marry as heterosexual couples and that right is constitutionally entrenched. So what’s next? Even acknowledging that Canada’s a bit of a lone wolf on the same-sex marriage issue, there’s still the urge to show some international leadership by “exporting” Canadian values in the form of a divorce order for any same-sex couple seeking one.

To do this, Canada would need to change its private international law rules (which are a matter of provincial law under our division of powers) such that the validity of marriages was determined by reference to something other than the law of domicile – at least when it came to same-sex couples. No matter how you formulate such a rule, you necessarily assign priority to Canadian values and beliefs ahead of any foreign or even near-global standard, and you do so in respect to individuals whose connection to Canada is based only on convenience. This, I suggest, would be a wholesale rejection of the “give and take” balance struck by the cooperative spirit that underlies our rules for recognition and enforcement of foreign laws.

What about the Charter?

The dissatisfaction with the result yielded by existing laws has many looking for an exceptional solution. Many, including Macfarlane, have cited the Charter as potential salvation. After all, the Supreme Court of Canada seemed to take as a given in the Same-Sex Marriage Reference that the extension of the right to civil marriage to same-sex couples was in furtherance of the Charter’s equality guarantee. (The Halpern decision out of the Ontario Court of Appeal expressly concluded that the common law definition of marriage that excluded same-sex relationship was contrary to section 15.)  But does this mean that recognizing a foreign law that precludes same-sex marriages is also a violation of the Charter’s equality guarantee? I’m not so sure.

A section 15 analysis isn’t as straightforward as one might think. For starters, not all differential treatment is prohibited by it. In order to run afoul of the Charter, the differential treatment must result from a formal distinction between the claimant and others on the basis of an enumerated or analogous ground, which results in impermissible discrimination.

The equality guarantee is a comparative concept. As such, the courts identify a relevant “comparator group” to determine whether the claimants are the subject of differential treatment on a prohibited ground.

At first blush, the proper comparator group would seem to be foreign heterosexual couples seeking recognition in Canada. After all, if the Florida/UK couple had been heterosexual, Canada would have no trouble recognizing their marriage as valid in the same circumstances.

Defining the comparator group this way, I argue, doesn’t get us very far. This is because the root of the Florida/UK couple’s difficulty isn’t just that they’re a same-sex couple, but that they’re from Florida and the UK. Put another way, if the exact same couple had been domiciled in Argentina or Iceland – where same-sex marriages are legal — before coming here to get married, we’d recognize their marriage as valid in Canada.

The fact remains that their homosexuality at least contributes to the differential treatment they’re facing now in Canada. This doesn’t mean, however, that Canada is discriminating against them on the basis of their sexual orientation. Assuming for a moment (because I haven’t checked) that Florida and the UK have laws similar to Canada’s which prohibits marriages between siblings, we would not have recognized as valid the marriage of a heterosexual brother-and-sister couple either. So, I ask, on what basis does our “differential treatment” truly arise?

In any event, refusing to recognizing Florida/UK marriage law on Charter grounds is not really very different from saying you’re going to refuse to recognize foreign law whenever it conflicts with Canadian law. To be sure, the Charter by its constitutional status isn’t just any ordinary Canadian law that could give rise to a conflict. Such conflicts would by definition be serious indeed. But even a conflict with the Charter isn’t necessarily going to give rise to a repugnancy so severe it would shock the conscience of the global community. To the outside world, even qualifying our conflicts of law rules to favour Canadian law over foreign law only on “really important Charter issues” could reasonably be interpreted as a rejection of an international baseline that has allowed us to play well together in the world’s sandbox for a decently long time.

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7 Responses to “Same-sex divorce: in defence of comity and lex loci domicilli”

  1. David says:

    I just have a few questions regarding the logic of conforming to law of the domicile.

    You mentioned that an exception of public law is necessary only if the public order is violated as it is understood in international relations. I don’t think it’s a case of Canada rejecting foreign laws in favor of the Charter of Rights in this vein. I think it’s a case of Canada having the independence to enforce its own laws where necessary — not “no matter what”, just when it’s needed.

    Thus, if there isn’t a global consensus on the validity of same-sex unions, why should Canada necessarily conform to the laws of other jurisdictions in light of this? I argue that this fact alone is a basis for Canada to reject foreign law in favor of the Charter of Rights. The fact that there is no global standard towards same-sex marriage renders any hypothetical priority assigned to Canadian law meaningless.

    It would be foolish for another jurisdiction to refuse recognition of a Canadian law on such a small issue. I don’t think this is a reliable indicator of Canada’s refusal to co-operate with other countries on larger issues. We get along fine with other countries, and this is shown by the things that truly matter in respect to the international sphere — trade, peacekeeping, diplomacy, and so forth.

    So why is assigning priority to Canadian law in these circumstances a necessary violation of the “give and take” attitude that we foster with the global community?

    I think the issue is regards the law itself, not the jurisdiction promulgating that law. A couple getting married in Canada should know that their marriage won’t be recognized in Texas, if that’s their place of residence and they intend to move back there — so we should afford them the convenience of marital benefits here. Why take it one step further and instead annul their marriage here, as a result of that?

    Also, the consanguinity and same-sex couple comparator groups are not comparable examples.

    There is differential treatment in opposition to the equal application of the Charter in the case of the same-sex couple because a foreign couple’s marriage is invalidated whilst a resident same-sex couple’s union would remain valid. This is discrimination on a prohibited ground (country/jurisdiction of origin). Their marital union is annulled in favor of lex loci-domicilli. In the case of consanguinity, both jurisdictions prohibit that sort of union so there would be no case under which the Charter would be triggered — there is no discrimination there.

    As for your question, “On what basis does our “differential treatment” truly arise?” This has already been answered, by you. Section 15 of the Charter is triggered when differential treatment arises on a prohibited ground.

    I argue that denying marital rights to a foreign couple because their jurisdiction of residence doesn’t recognize that form of union is not discrimination on the basis of sexual orientation, but country/jurisdiction of origin.

    Thus, the Charter should be applied accordingly to treat these individuals equally before the law in light of the fact that denying them these rights is necessarily harmful, since the claimant cannot be served equally in that regard in either Canada or his country of origin.

  2. Joy says:

    Not to mention that the word “convenience” in the case of both spouses being non-Canadian, though it may be a term of art, is really a euphemism for a grim and desperate necessity.

    • DH says:

      Joy, not sure how travelling to Canada (as opposed to claiming refugee status in Canada) reflects a “grim and desperate necessity” for anyone. But perhaps I’m missing something here.

  3. Joy says:

    If reliance on the law of domicile to determine essential validity might undermine a same-sex couple’s plan for a foreign-born spouse to immigrate to Canada on the sponsorship of the Canadian-born spouse, then you cannot say that changing that rule is done “in respect to individuals whose connection to Canada is based only on convenience.”

    • DH says:

      If the same-sex couple had always planned to immigrate to Canada, then I think there’d be room to cut them some slack by applying the “law of the intended matrimonial home”. In any event, for immigration purposes my understanding is that a sponsoring spouse doesn’t have to be “legally married” in order to sponsor someone, in which case it would be enough that the partners are in a committed relationship notwithstanding that one of their home countries doesn’t entitle them to be married to someone of the same sex. I could be wrong in my understanding of this, though.

  4. cmathen says:

    Interesting post. Two comments:

    1. The point about provincial jurisdiction re: choice of law rules seems to come into conflict with Parliament’s jurisdiction over Marriage and Divorce to the extent that Parliament wished to expand the category of marriages recognized as valid in Canada. Are you suggesting that the federal government’s plan to amend the Civil Marriage Act to overcome the conflicts rules would be ultra vires Parliament? I have difficulty imagining any court denying Parliament that power.

    2. Your section 15 analysis seems to misstate the nature of the differential impact. The application of private international law rules in this case means that recognition, in Canada, is withheld because of a (foreign) law that discriminates on the basis of sexual orientation. The impact then is to deny recognition on the basis of sexual orientation. Under current doctrine, so long as the person is present within Canada, section 15 is triggered. it is the specific interaction with an analogous ground that is the problem. The fact that the foreign law may prohibit marriages on other grounds does not mitigate the differential impact on the basis of sexual orientation. The impact is to be assessed with regard to each ground insofar as that ground is linked to the denial of recognition. If the law discriminates on the basis of race, the use of that law to deny recognition to a marriage in Canada would face a similar section 15 challenge. A denial based on consanguinity would have to be evaluated on its own merits (and would be very unlikely to be found discriminatory). Of course, a section 1 argument might be possible, though I have my doubts that any government would have the stomach to make it.

    • DH says:

      1. It was my understanding that choice of law rules have been held to be within provincial jurisdiction in the past as a matter of property and civil rights within the province. But since being called on this, I haven’t yet found any cases that specifically state this in respect of choice of law rules for marriage. For what it’s worth, the Quebec Civil Code provides specifically for this (there may be statutes from common law provinces as well, I’d have to look) and there hasn’t been a finding that it’s ultra vires the Quebec legislature.

      I certainly agree that Parliament has jurisdiction to legislate with respect to marriage (other than solemnization requirements, which are expressly within provincial jurisdiction) and divorce of Canadian residents under the CMA, but I don’t think it’s obvious that the same statute can legislate in respect of the marriage of foreign couples to which Canada does not otherwise have a real and substantial connection.

      2. You make a compelling point about the source of the differential impact. I’m going to have to chew on that one for a while.

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