The law behind the same-sex divorce controversy

A Florida lesbian couple married in Canada is at the centre of controversy after the government told them they were ineligible to get a divorce in Canada.
Same-sex couples from other countries who were married in Canada may not be able to get divorced here, at least according to current Canadian law. (Peter Jones/Reuters )

A same-sex couple from Florida that was married in Canada in 2004 but has since split is at the centre of controversy after a submission from the federal government said the women would be unable to get divorced in Canada.

What happened?

In 2005, an unidentified lesbian couple from Florida came to Ontario to get married, as Canada is one of the few jurisdictions in the world where same-sex marriages are performed.

In 2009, they split up — they now live in Florida and the United Kingdom, respectively.

Both women want a divorce, but are unable to get one. Because the state of Florida does not recognize same-sex marriage, and the U.K., which grants civil partnerships to same-sex partners, does not recognize the Canadian marriage, the couple went to an Ontario court last June seeking a Canadian divorce.

So what’s the problem?

The federal Divorce Act will not grant a divorce if a couple has been in Canada for less than a year.

The Florida couple knew this, and in their submission to the Ontario court, they argue that the law is unconstitutional because it is discriminatory to same-sex couples, who can only get married in select jurisdictions around the world (including Spain, the Netherlands and U.S. states like Massachusetts and New York).

A lawyer for the federal Justice Department submitted a counter-argument stating that the marriage wasn't valid in the first place because a) the women weren't Canadian residents and b) their marriage isn’t recognized where they live. The opinion was put forth in June, but the documents were only released on Jan. 12.

How strong is this argument?

Andrew Feldstein, a Toronto lawyer specializing in family law, told CBC News Network that there are two tests of a valid marriage.

One is "essential validity," which means that the two individuals give consent to and can consummate the marriage.

The second test is "formal validity," which confirms that the nuptials were legal in the jurisdiction in which they were performed.

The Florida couple's marriage passes these tests, says Feldstein, and thus should be considered valid.

What is the government proposing to do next?

When asked about it on Jan. 12, Prime Minister Stephen Harper said he was unaware that the Justice Department argument had been put forth.

He said Canada recognizes same-sex marriage and that the federal government "is not going to reopen that issue."

Later in the day, Justice Minister Rob Nicholson said in a statement to CBC that he would be "looking at options to clarify the law so that marriages performed in Canada can be undone in Canada."

How many same-sex couples from other countries have been married in Canada?

Approximately 5,000 non-resident couples have been married in Canada.

Shouldn't couples be able to get divorced where it's most convenient?

"In principle, you should get divorced in the place where you live," Karen Busby, a law professor at the University of Manitoba, told the CBC Toronto radio show Here and Now.

That's because divorce isn't merely a symbolic status, but often involves other issues, like child custody, support and the division of assets.

"Generally, you can’t get a divorce until you've finalized all of those other issues, particularly the child-related issues," Busby said.

"And the other thing is, we don’t want people forum-shopping. Say somebody wants to avoid Canada's property-division laws — we don’t want them to be able to go to [another] jurisdiction and seek their divorce in that place."