Same-sex divorce available soon to non-residents in Canada

The same-sex divorce bill that languished around Parliament for more than a year without being debated passed the House of Commons and now the Senate after the government and NDP finally reached an agreement.

Civil marriage bill introduced in early 2012 finally passed in Commons deal last week

Supporters of same-sex marriage rally on Parliament Hill in 2006. A bill to close a legal loophole that prevented non-residents of Canada who got married here from getting a divorce has been passed by the House of Commons and the Senate. (Jonathan Hayward/Canadian Press)

More than a year after it was introduced and with not a word of debate in the House of Commons, the bill allowing same-sex couples married in Canada to get a divorce has sailed through Parliament.

Bill C-32, the civil marriage of non-residents act, passed third reading in the Senate last Friday. The bill allows for people married in Canada because same-sex marriage isn't allowed where they live, to get a divorce from a Canadian court.

The bill creates a process for divorce specific to people who don't reside in Canada. It arose because of a lesbian couple who tied the knot in Canada and wanted a divorce but their marriage wasn't recognized in their home jurisdictions of Florida and London, England.

Canada's Divorce Act includes a one-year residency requirement and the women challenged that in court and sought an exemption. The case exposed a loophole in the Civil Marriage Act, the law that made same-sex marriage legal in Canada, and prompted a lot of confusion because of how Crown attorneys argued the case. They said the women couldn't get divorced in Canada because they weren't legally married in Canada in the first place and their marriage wasn't valid.

The federal government clarified its position, however, and said it had no intention to re-open the same-sex marriage debate and that it would introduce legislation to fix the "anomaly" in the law so that the marriages are legally valid and can legally be dissolved.

The bill was first introduced in the House of Commons in February 2012. Little was heard about it again until last week when it was included among a package of bills that all parties agreed to pass before the summer break.

Instead of following the normal process for a bill where it is debated and voted on at various stages and studied by MPs on a committee, C-32 was declared passed at all stages in the Commons and it moved on to the Senate where it was also dealt with quickly. It landed in the Senate Wednesday and was passed Friday.

But until last week the bill had languished for more than 15 months and when Justice Minister Rob Nicholson's office was asked why, his press secretary said it was the NDP's fault.

"Over the past year, the government House leader [Peter Van Loan] has sought several times to obtain unanimous consent from opposition parties to pass this legislation expeditiously. But the NDP has steadily refused to give its consent. The NDP is set on revisiting the same-sex marriage debate, which was settled by Parliament in 2005, and again in 2006," Julie Di Mambro wrote in an email, speaking on behalf of Nicholson.

She said there was "no reason" why the NDP shouldn't have given its consent.

The NDP, however, says it wasn't trying to block the bill, it was trying to fix a flaw.

"It remains a mystery why the government took so long to bring this bill forward," the NDP's lesbian, gay, bisexual and transgender issues critic Randall Garrison said in a statement. "We in the NDP never threatened to delay or defeat the legislation, but we always said we thought it could be improved."

The government did in the end agree to an amendment proposed by the NDP dealing with court documentation and that's how it was finally passed as Parliament wrapped up for the summer.

"We were happy to work with the government to build the best legislation possible for same-sex couples married in Canada.  This was never an issue of partisanship but rather an issue of equality," Garrison said.

C-32 still has to get royal assent before becoming law. 


Meagan Fitzpatrick is a multiplatform reporter with CBC News in Toronto. She joined the CBC in 2011 and previously worked in the Parliament Hill and Washington bureaus. She has also reported for the CBC from Hong Kong. Meagan started her career as a print reporter in Ottawa.