I have met and heard the tragic stories of many parents. PA is a function, by and large, of a custodial ex-partner, although some alienation can start while the couple is still together.

This blog is a story of experiences and observations of dysfunctional Family Law (FLAW), an arena pitting parent against parent, with children as the prize. Due to the gender bias in Family Law, that I have observed, this Blog has evolved from a focus solely on PA to one of the broader Family/Children's Rights area and the impact of Feminist mythology on Canadian Jurisprudence and the Divorce Industry.

Monday, April 30, 2012

Justice Minister Nicholson gets upended by Same Sex Divorce TouristsNocholson

By Cristin Schmitz    January 27 2012 issue

A Charter challenge aiming to pave the way for foreign domiciled same-sex couples who married here to obtain Canadian divorces has opened up a can of legal worms, says a family law expert.

However, the federal government’s rapid about-face on Jan. 13 in L. and M. v. A.G. Canada and A.G. Ontario also illustrates that, sometimes, the court of public opinion is the highest court in the land.

“Not all cases have to be fought out in the courtroom,” remarked Toronto family law practitioner Martha McCarthy, who represents a married lesbian couple who live abroad and have filed jointly for divorce in Canada.

“I think that Kirk Makin’s article [about the case in The Globe and Mail Jan. 12] was instrumental in changing the government policy and therefore, hopefully, leading to a total resolution of my [clients’] case.”

She said she was contacted by the newspaper, and not the other way around. “There was not some deep strategy in my office about that — ​that’s not how it happened. My reaction when the [federal Crown’s] pleading was served was: ‘This is a horrible mistake and, if and when the press gets a hold of this, this is not going to go well for the government.’ ”

L. and M. were married in Toronto in 2005. They turned to Ontario’s Superior Court last year to dissolve their union because they reside separately in Britain and Florida, where they can’t divorce because neither jurisdiction recognizes their marriage.

As part of their test case, the pair is seeking a constitutional exemption from the one-year Canadian residency requirement in the Divorce Act because they claim it imposes undue hardship on them and violates their Charter sections 7 and 15 rights to liberty and equality.

They were shocked, however, when the federal government responded to their application by stating that the Ontario court couldn’t divorce them because they were never really married in the first place. If true, this would also apply to the thousands of foreign same-sex partners who have flocked to Canada to marry.

McCarthy condemns as “unsavoury and inflammatory” the argument that other experts have said is consistent with well-established principles of private international law. The federal Crown argued that same-sex couples who married in Canada, but who are domiciled in places where same-sex marriage is not legally recognized, “are not legally married under Canadian law.”

Its legal position prompted headlines, and outraged reactions from gays and lesbians, around the world.

Within hours of the story’s publication, Justice Minister Rob Nicholson began backpedaling. He went further the next day, stating: “We want to make it very clear that, in our government’s view, these marriages should be valid.”

He went on to vow that “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. This will apply to all marriages performed in Canada.”

Nicholson’s spokeswoman, Julie Vaux, told The Lawyers Weekly that the minister “will be looking at options to clarify the law so marriages performed in Canada can be undone in Canada.”

She declined to disclose specifics. The Department of Justice lawyer who represented the Crown in L. and M., Sean Gaudet, was not authorized to comment.

However, McCarthy told The Lawyers Weekly she received correspondence from Gaudet on Jan. 17, asking her clients to wait for the enactment of the pledged legislative reforms. She said her sense is that the amendments will be unveiled soon after the House of Commons resumes sitting on Jan. 30.

“If that’s not the way it goes, I am going to want to have some discussions [with the attorney general’s counsel], because I don’t think my clients should wait a long time,” she said. “I have had discussion with senior members of Cabinet and have been assured that they intend to resolve my matter, in addition to the greater legal issue, on an amicable and expedited basis.”

McCarthy said a settlement might involve a consent order constitutionally exempting her clients from the one-year residency requirement, as well as withdrawal of the government’s answer that contains the “offensive argument.”

Based on Nicholson’s public comment that the impugned marriages “will be recognized in Canada,” a legislative fix would likely address the feds’ argument in L. and M. that “the Superior Court has no jurisdiction to grant a divorce to the joint applicants because they are not legally married under Canadian law.”

As the government explained in its answer to L. and M.’s application, under private international law “in order for a marriage to be legally valid under Canadian law, the parties to the marriage must satisfy both the requirements of the law of the place where the marriage is celebrated (the lex loci celebrationis) with regard to the formal requirements, and the requirements of the law of domicile of the couple with regard to their legal capacity to marry one another. In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domicile — ​Florida and the United Kingdom. As a result, their marriage is not legally valid under Canadian law.”

A leading divorce authority, Julien Payne of Ottawa, told The Lawyers Weekly that, notwithstanding the public controversy, the Crown’s argument is “certainly consistent with the general rules” of private international law. “What the Department of Justice said is not novel. It’s not a creation of their imagination It reflects the law as it’s understood by basically everybody who writes in the field. That’s not to say those rules can’t be changed, although any change is going to generate problems of one kind or another.”

The problem of divorce for non-resident same-sex couples could have been dealt with when the Civil Marriage Act was passed in 2005, he suggested.

He said the problems would not have arisen in the first place if Canada had confined its recognition of same-sex marriages to persons domiciled in Canada.

Payne also suggested “it might be somewhat problematic” to create a special rule under the Divorce Act exempting same-sex married couples, but not opposite-sex couples, from the one-year residency requirement. Moreover, eliminating the residency requirement  could create a divorce haven for foreigners, Payne said.

McCarthy said she doesn’t anticipate that. “I think the amendments that we are talking about are about the dissolution of the marriage. I think it’s pretty simple to draft an amendment, or an additional provision, for the Civil Marriage Act that just allows for dissolution, but doesn’t specifically allow for corollary relief. Nobody is suggesting that this is going to be [opening the door to] bitter divorces involving custody disputes and property in other countries.”


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