Is Canada Rethinking Its Approach To Gay Marriage?

Canada’s prime minister has denied his government is changing its position on same-sex marriage.

Stephen Harper made the comment after media reports regarding a divorce case in Toronto.

The case involves two women, one from Florida, the other from Britain, who got married in Canada which legalized same-sex marriages in 2005.

A lawyer, representing Canada’s federal government in the case, is arguing that the women’s marriage in Canada is not valid because same-sex marriage isn’t legal in either Florida or Britain.

Martha McCarthy is the Toronto lawyer who represents the two women.

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Marco Werman: Canada’s prime minister today denied his government is changing its position on same sex marriage. Stephen Harper made the comment after media reported a divorce case in Toronto. The case involved two women, one from Florida, the other from Britain, who got married in Canada, which legalized same sex marriages in 2005. A lawyer representing Canada’s federal government in the case is arguing that the women’s marriage in Canada is not valid because same sex marriage isn’t legal in either Florida or Britain. Attorney Martha McCarthy represents the two women. She was also involved in the push to make same sex marriage legal in Canada. McCarthy says that the divorce case in Ontario could affect thousands of Americans.

Martha McCarthy: If the government succeeds with this argument it puts into doubt the validity of the marriages of any same sex nonresident who came to Canada to be married from a jurisdiction that did not recognize the validity of same sex marriage.

Werman: So in other words, if these women who were from the state of Massachusetts where same sex marriage is legal there wouldn’t be a problem with this.

McCarthy: Right, if they came with Massachusetts after Mass. passed equal legislation then you’re right, according to their argument, that would be a valid marriage. The whole thing is like a law school exam because what if one is from Mass. and one is from Texas, and one is from Ontario and one is from New York? I’ve been inundated by emails today from individuals who have questions. And one person emailed me and said we’re from New York; at the time that we got married New York didn’t recognize the validity of equal marriage…

Werman: And now they do.

McCarthy: We came to Ontario, we got married, we’ve now moved to Ontario, do you think our marriage is valid?

Werman: Yeah, lots of questions.

McCarthy: It’s just ridiculous.

Werman: Let me ask you this, Ms. McCarthy, is a marriage certificate in Canada, for gay and lesbian couples, is it the exact same document as it is for heterosexual couples?

McCarthy: Yes, it is.

Werman: So how is Canada’s federal lawyer able to slide in the proviso after same sex marriage was enshrined into law in 2005?

McCarthy: Well, there’s some old case about the validity of marriages for purposes of annulment, 30 year old case that talks about the validity of marriage being dependent in part on the law of the domicile.

Werman: So what you’re saying is Canada’s marriage laws do not have a residency requirement, but that federal divorce laws do.

McCarthy: That’s exactly right. There is a one-year residency requirement for divorce, but no residency requirement for marriage.

Werman: So that makes this case especially complicated.

McCarthy: It’s why, the current estimates are that perhaps 15,000 same sex marriages have been solemnized since June of 2003, when equal marriage began in Canada. And as many as one third of those have been Americans.

Werman: I have to ask you this, if you know that your Canadian marriage license will not be recognized where you live, in this case in Florida and in Britain, then why even go through with marriage in the first place?

McCarthy: Because I mean that’s thousands of people who wanted a marriage despite what the view was in their home jurisdictions, who came because we were marrying same sex couples. That was you know, a flood in the first six months.

Werman: So Prime Minister Stephen Harper says that this case is not going to reopen the whole issue of same sex marriage. Do you think it actually will reopen it?

McCarthy: It’s possible, if we are not successful on this particular legal issue about whether or not the marriages are valid, the implications are enormous and embarrassing on the international stage to Canada, which has held itself out. I mean I’ve been certainly a big player in holding ourselves out as being leaders internationally on the issue of gay marriage. It’s unbelievable that the federal government would be taking this position nine years in.

Werman: Attorney Martha McCarthy speaking to us from Toronto. Thank you very much for your time.

McCarthy: No problem.

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