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UPDATE: Minister to change law to allow foreign same-sex divorces

Foreign same-sex couples wed in Canada discover their marriages may not be valid

Washington State resident David Serkin-Poole, who married his husband, Michael, in Toronto in 2009, is now concerned his marriage is not valid. Credit: Courtesy of Serkin-Poole

UPDATE JAN 13: Federal Justice Minister Rob Nicholson has announced that all same-sex marriages performed in Canada, even those of non-residents whose Canadian marriage is not recognized at home, will be considered valid in Canada and that the government will introduce legislation to ensure clarity on that point. New legislation will also allow couples affected by the current legal ambiguity to attain divorces in Canada if they so choose. 

The Globe and Mail reports that Nicholson made the announcement in a speech at  the Canadian Club on Jan 13.

Jan 12: American David Serkin-Poole, who got married in Toronto in 2009, is worried he may no longer be legally married now that the federal government has declared thousands of same-sex marriages invalid.

In Washington State, where Serkin-Poole lives with his husband, Michael, and their three adopted children, same-sex marriage is not legal. The couple travelled to Toronto so they could wed legally. 

“I love Canada, but this is concerning,” he says. “This is news to me. I am in the midst of applying for dual Canadian citizenship. Does that change things? It didn’t even occur to me to ask if there are any circumstances under which this marriage could be nullified.

“Our marriage cost money, time. I’m a little pissed.”

Like thousands of other same-sex couples that have flocked to Canada to tie the knot, Serkin-Poole is now left with many unanswered questions and “what if” scenarios after recent reports that the federal government was not recognizing some same-sex marriages.

“So our marriage is no longer valid in Canada? It was never valid in Washington. But this news is disappointing. I figured Canada had this whole thing figured out,” he says. 
A Jan 12 report documented the story of a lesbian couple from Florida and the United Kingdom who got married in Canada in 2005. They have since been told they could not file for a divorce because they were never married in the first place. Their lawyer, Martha McCarthy, could not be reached for comment.

As a result, the federal Conservative government has served notice to thousands of same-sex couples that had marriage ceremonies in Canada since 2004: they are not legally married.

But Toronto lawyer Brenda Cossman says this shouldn’t come as a shock to couples. Canadian divorce law hasn’t changed.

“To get a divorce in Canada, under the divorce act, you must live in Canada for a year,” she says. “There is a one-year residency requirement, which applies to everybody. There’s no residency requirement to get married, but there is a residency requirement to get a divorce.

“I have been yelling about this since 2003 when Americans started to travel to Canada to get married. I remember thinking, ‘Don’t do it!,'” says Cossman. “Really, those couples should have done their due diligence before they came here to get married. They should have asked if they can take their marriage over the border . . . Canada isn’t changing anything. This has always been the legal risk.”

Canadian laws state that a marriage is considered legally valid depending on the law where the couple lives, not where they got married, she says. “So if they are going back to Massachusetts, it’s fine. If it’s Texas, for example, it’s not fine, which is a big problem right now in the States. It’s a mess.”

Prime Minister Stephen Harper assured reporters Jan 12 that he has no plans to roll back same-sex marriage rights in Canada.

“It appears like they are reopening same-sex marriage when the government promised they were not going to,” says Cossman. “I don’t think they will. This will not affect the marriage rights of Canadians. This affects anyone who isn’t Canadian. This was bound to happen.”

Cossman says McCarthy plans to challenge the one-year residency requirement for divorce in Canada, which would affect all couples – straight or gay.

“It looks like Martha will try to challenge the constitutionality of the one-year residency rule,” Cossman says.

Watch more from Cossman in a Jan 12 CTV interview here.

With so many people potentially affected, and so many unanswered questions, news of the story quickly spread on social media.

Public outrage prompted Justice Minister Rob Nicholson, in an interview with The Globe and Mail, to promise to begin “looking at options to clarify the law so that marriages performed in Canada can be undone in Canada.”

Even former Toronto mayor David Miller weighed in, saying the Harper government is being “sneaky and underhanded,” embarrassing Canada in front of the world by upsetting the lives of same-sex couples.

Cossman agrees. “This could affect our tourist industry. It will for sure affect Canada’s image as an LGBT haven. Is that part of [Stephen] Harper’s motivation, to tell the world to stop coming here to get married?”

Other countries that have legalized same-sex marriage currently include The Netherlands, Spain, Belgium, Sweden, Norway and South Africa.

Xtra first broke the story in October after a Canadian gay couple was denied a divorce because they had been married in a civil union in the UK. The couple was informed that the civil partnership wasn’t equivalent to a civil marriage under Canadian law.

Liberal justice critic Irwin Cotler, who was justice minister when changes to the Civil Marriage Act were made to allow same-sex marriage across the country, told Xtra the government should not be intervening in the case.

“We should support the intent and the effect of the Civil Marriage Act, which was to provide equal access to gays and lesbians to civil marriage, and this approach by the government of Canada in the manner of its intervention effectively undermines that,” Cotler said at the time.

Through a series of court cases beginning in 2003, same-sex marriage gradually became legal in nine of the country’s 13 provinces and territories. In 2005, the Canadian Parliament passed legislation making same-sex marriage legal nationwide.

A CBC survey conducted three months before the law changed found that 52 percent of Canadians opposed the legislation. But one month after passage of the law, 55 percent favoured keeping it. 

In 2006, lawmakers defeated an effort by the Harper government to reopen the same-sex marriage debate, leaving the law unchanged.
Challenging Divorce Laws in Canada