Canada has to update its civil marriage law to recognize gay unions for couples who live outside the country, Justice Minister Rob Nicholson said Friday.
The case arose out of a court filing where a federal lawyer said Canada couldn't grant a lesbian couple a divorce because they were never married in the first place. One woman lives in England and one in Florida. Neither jurisdiction recognizes same-sex marriage.
The Department of Justice lawyer also argued Canada can't grant the women a divorce because they must be residents to get a divorce. The Divorce Act applies to anyone who wants a divorce in Canada. There's right now no way for non-residents, gay or straight, to get divorced in Canada.
"I want to make it very clear that, in our government’s view, these marriages should be valid. We will change the Civil Marriage Act so that any marriages performed in Canada that aren't recognized in the couple's home jurisdiction will be recognized in Canada," he said in a statement.
"This will apply to all marriages performed in Canada. We have been clear that we have no desire to reopen this issue – both myself and the prime minister consider this debate to be closed."
But the marriage law already applies to all marriages performed in Canada, according to Kathleen Lahey, a lawyer who represented before the Supreme Court of Canada one of the couples fighting to be married.
Lahey, who also appeared in front of a parliamentary committee when the government was drafting the law, says there's nothing in the Civil Marriage Act that needs to be changed to make it apply to non-residents.
"Plain and simple, it is totally valid here. It’s a quite tragic attempt, really, to attack overseas same-sex marriages sort of from the side."
Nicholson says the law was badly drafted by the previous government.
"This is a legislative gap left by the Liberal government of the day when the law was changed in 2005. The confusion and pain resulting from this gap is completely unfair to those who are affected," he said.
'There is no legislative gap'
Lahey says this area of domestic law is based on a 19th century decision known as Connolly that established Canada early on as one of the least discriminatory countries in terms of marriage law.
The specific contention under private international law used by the federal lawyer has never been used before in Canada to invalidate marriage, Lahey said, and would throw out more than 100 years of marriage law.
"My very clear position is that there is nothing wrong with the marriage act and there’s nothing that can be done to so-called fix the marriage act because there is no legislative gap in the marriage act."
Interim Liberal Leader Bob Rae rejected Nicholson's contention that it was the fault of the previous government. He also questioned whether a legal gap really exists, comparing it to the example of a South African couple in the 1960s.
Had a black South African man wanted to marry a white South African woman, it wouldn't have been recognized in South Africa in that era, Rae said.
"Are we seriously saying that we wouldn't recognize the legality of that marriage because that marriage would not have been seen as being legal in South Africa?" Rae said.
"That position is preposterous. The only gap is the gap between the heads of Conservative cabinet ministers, who have failed to live up to the best and finest traditions of Canada with respect to our traditions of tolerance."
"Their position is frankly ludicrous."