Same Sex Marriage in Canada

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I am going to try to get out ahead of this one.

The news is going crazy today about an opinion filed in Ontario court about the validity of same-sex marriages performed in Canada. So here goes, so far as I know the circumstances.

Two women, who were resident in Florida and England, respectively, got married in Ontario. Neither of them has lived in Canada before or since the marriage. Now they want to divorce.

Neither the courts of Florida nor England and Wales recognize that a marriage exists, so they are trying to get divorced in Ontario. Canada's Divorce Act confers jurisdiction on a court where one of the parties has resided in the jurisdiction of that court for at least one year--which requirement they can't meet. So they are trying to challenge the residency requirement on Charter grounds.

Clear as Fresca (tm) so far?

Well, because of the challenge, the Attorney General for Canada is a party to the action. And the opinion from the Department of Justice is that no valid marriage exists in Canadian law.

The Common Law of the Canadian federal jurisdiction requires two components for a marriage to be valid: formal validity and essential validity.

Formal validity is the requirement that the couple have gone through all the necessary hoops in order to celebrate their marriage and register it. Forms of vows, publication of banns, the validity (or non-validity) of religious rites are all part of formal validity, and are a matter of provincial jurisdiction. A marriage certificate is presumptive proof of formal validity. (The presumption could be rebutted by proof of fraud or forgery).

Essential validity, is the requirement that both parties were capable of marrying. But under Conflicts of Laws doctrine that is not a matter for the jurisdiction of the place where they are married, but rather the place where they are each "domiciled." So, as far as Canadian Common Law is concerned, since these two women were both living in jurisdictions where no same-sex marriage could have been contracted, their marriage in Canada lacks essential validity. And if there is no marriage, then there is nothing to divorce.

This is a gigantic clusterf**k, with allegations of hidden agendas and all manner of righteous indignation. It's an interesting day to be reading Canadian news.

Gays give divorce a bad name.

"Neither the courts of Florida nor England and Wales recognize that a marriage exists, so they are trying to get divorced in Ontario. Canada's Divorce Act confers jurisdiction on a court where one of the parties has resided in the jurisdiction of that court for at least one year--which requirement they can't meet. So they are trying to challenge the residency requirement on Charter grounds."

These two are just looking to stir up trouble. If their "marriage" isn't recognized, they don't need a divorce. Divorce is not only expensive, but emotionally traumatizing. There has to be some kind of ulterior motive for two people to demand a divorce when it's not necessary.

Their position--and it's not an unreasonable one--is that they went through a valid form of marriage, and that marriage has created a legal relationship that they now want severed.

One of the women apparently included the other on her benefits plan and pension. Those providers may now be insisting on a divorce in order to undo that designation.

Above all there is the self-image. They believe themselves to be legally married, even if the common law of Canada does not. And so they want a dissolution of that state.

I am sympathetic to their plight, even if I believe that they don't, technically, need a legal remedy.

While it will be interesting to see what becomes of this, I think it's more interesting to note what happened after they got married. Did they strip stark naked and began parading in the streets, humping little kids, urinating on dogs, having signs on the house that said "Orgies Open to the Public" and caused their local economy to decline, with houses randomly exploding and people turning to pillars of salt?

If the marriage were "valid", this wouldn't be at issue.

If the KKK does none of the things you mention, would you support them too?

Tell me, since homosexual "marriage" has been voted down wherever voters have decided, how is your position not "divisive"?

But it's not, so it is. It's time for Florida, England & Wales and the rest of the civilized world to recognize that we are in the 21st century.



Since when do the majority get to decide the rights of the minority? Democracy doesn't mean "majority rules." It means free and fair elections. It means respect for the Rule of Law. It means independent courts. It means a free press. And it means a respect for the civil liberties of minorities. If any of these things are missing, then a system of government is merely a sham democracy.

And so, in that same vein, if the KKK behaves legally, then of course I support them. I may disagree with them on every issue they espouse, but I would not stop their peaceful exercise of their beliefs.

I don't support the KKK, but I respect anyone's expression as long as it doesn't involve physically hurting anyone.

Florida and England, eh? And now they immediately want to divorce? Can anyone say "political activists"?

As for the idea of same-sex marriage itself: if the term "marriage" has a specifically religious connotation, I'm against calling it that if no church will marry them. But if some churches are more than happy to marry same-sex couples I don't have anything against that and it should be recognised as such in law. I'm not telling the flappy-headers what to do in their own country here, just stating an observation.

Civil unions are legal in the UK (the first one took place in Northern Ireland, an ironic choice as Ulster has been known to have a lot of anti-gay sentiment) but not same-sex marriage per se.

Or maybe they just want a divorce and there's nowhere they can get one. You throw the words, "political activism" around like they were a bad thing. Political activists are how democractic countries effect change. You, yourself are a political activist for British withdrawal from the EU, are you not?



Which is a separate case in Canada over what recognition British civil unions merit. (Which seems to be, "not much.")

That is sooo funny!!

Dunnyveg......snapcap was being beautifully sarcastic...I love it.

Even though Democracy doesn't mean majority rule, it does mean that there is a way for people to vote in what they believe in, rather then have things enforced on them by fiat. But as far as I know, most of the states where they implimented gay 'marriage' never even allowed their constituants to vote on the matter before passing it, and bypassed the voters' right to choose. This trumps democracy because a few state judges thought they knew better then the ignorant commoners, rather then letting the people decide.

It's one thing if the voters wanted gay marriage and voted it in, it's another when a judge decides it for you, and you never even got to vote.



Besides, why the heck do they want a divorce? Unless one woman is beating on the other or some other heinous thing, all it just tells me that these two folks just want attention and are eager to make a stink over something.

the institution of marriage was not religious in origin, though almost every religious doctrine has some unique form of marriage validation/celebration. very common misconception.

There could be disagreements on the division of property, possibility of alimony, etc that they need a court to decide, which would be part and parcel of having a legal divorce.

I'm Canadian and I couldn't care less.