TORONTO — A legal loophole that could have undermined thousands of same-sex marriages will be remedied to ensure gay couples from abroad who marry in Canada will have their unions recognized here, the federal justice minister said Friday.
Rob Nicholson acknowledged the confusion surrounding the issue has upset many couples and stressed it’s the government’s view that 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,” Nicholson said Friday during a speech to the Canadian Club of Toronto.
Doubts were raised about the validity of thousands of marriages conducted in Canada for same-sex couples from the United States and elsewhere following a federal twist in a Charter of Rights case launched in Ontario by two foreign women seeking a divorce.
A legal brief filed by federal lawyers denies the women are even legally married. It argues neither woman was legally able to marry a person of the same sex under the laws of Florida or the United Kingdom. “As a result, their marriage is not legally valid under Canadian law.”
Critics accused Prime Minister Stephen Harper’s Conservative government of seeking to rewrite the rules on gay marriage to suit its right-wing agenda.
In announcing the government would change the law, Nicholson said Friday that “the confusion and pain resulting from this gap … is completely unfair to those affected.”
Liberal Leader Bob Rae, speaking to reporters at the party’s policy convention in Ottawa, responded to Nicholson by lamenting, “Oh please, give me a break.”
“These guys specialize in trying to turn the tables,” Rae said of the Harper Conservatives.
“The only gap is the gap between the heads of Conservative cabinet ministers who have failed to live up the best and finest traditions of Canada with respect to our positions of tolerance,” Rae added.
Randall Garrison, the NDP’s critic for gay and lesbian issues, said Ottawa has repeatedly tried to use a loophole in the legislation to erode those rights “through the back door.”
“They got caught and I think they were frankly quite surprised by the reaction, and so they’ve rolled back their position today,” he said.
Robert Leckey, a family law professor at McGill University in Montreal and president of Egale Canada, called the minister’s announcement “a positive step.”
“I’m looking forward to seeing him act on the things he said,” he said.
At the same time, “a little work will need to be done to make sure that what is done this time is done right,” he added.
The couple seeking a divorce, identified in court records only by initials to protect their privacy, were married in Toronto in December 2005 and separated two years ago. One lives in Clearwater, Fla., the other in London, England.
Their marriage is not recognized either in Florida or the United Kingdom. As a result, they are unable to obtain a divorce in their home cities.
The couple also faced a barrier to divorce in Ontario — a requirement that at least one of them live in the province for a year or more. They have launched a constitutional challenge of that provision in the Ontario Superior Court of Justice.
In 2005, the Liberal government passed legislation recognizing same-sex marriage after several courts across the country had declared the practice legal. An estimated 5,000 of the 15,000 or so gay marriages performed in Canada have involved foreigners, mostly American couples.