In the last decade Canada became one of the first jurisdictions in the world to permit same sex couples to marry. As one of the first, and as we share a border with a country that has ten times our population where the struggle to have same sex marriages recognized still continues, Canada has attracted a large number of foreign same sex marriages. Just as a Canadian couple might choose to have a “destination wedding” in, say, the Caribbean, same sex couples from abroad come to Toronto and other Canadian cities to celebrate their marriages. Inevitably, some same sex marriages were destined to fail. When they did fail those couples living in jurisdictions that do not permit same sex marriages faced a dilemma: how to divorce?
The jurisdiction for divorce law is based on domicile, that is when a couple separate all the issues including divorce, property sharing and support rights are resolved where the couple are living at the end of the relationship. Under Canada’s Divorce Act, to be eligible to seek a divorce from a Canadian court one spouse must have resided in a Canadian province or territory for at least 12 months. It was not a surprise that one couple decided to take this problem on by challenging this restriction as discriminatory in a pending court case. Initially the Federal Government defended the legislation by taking the rather surprising position that non resident same sex couples who celebrated marriages in this country were not truly wed. In response to the outcry that position provoked, the Federal Minister of Justice has now introduced new legislation in an effort to remedy this problem. The question is whether the proposed amendments to the Civil Marriage Act accomplish that task.
Bill C-32, An Act to Amend the Civil Marriage Act, confirms that a marriage performed in Canada is valid even if the couple did not have capacity to marry in their home jurisdictions. The amendments permit the couple to apply for a divorce in the province in which they were married if they have lived separate and apart for at least one year. Unlike spouses resident in Canada, foreign domiciled spouses are not able to apply for divorce based on cruelty or adultery. (As an aside, while the issue is before Parliament it would be worthwhile to remove cruelty and adultery as options for all spouses and thereby bring our divorce law into the 21st century with a truly no fault system.) The right for non-resident spouses to apply to divorce is limited to those where each spouse resides in a state which will not grant a divorce. Furthermore, the right to apply for a divorce in Canada is limited to cases in which the couple consent or the court of the country in which a spouse does reside grants an order confirming that no divorce is possible in that jurisdiction. Given that, by definition, a country that does not recognize same sex marriages and divorce is one that discriminates against its gay citizens, it does seem a stretch to ask one of those citizens to approach a court to request an order confirming the discriminatory practice. Taking such a step might well open up the applicants to more direct discrimination in their country of residence. The right is limited to a divorce alone. The amendments do not permit foreign resident spouses to apply for spousal support, for example. That raises an obvious question: if it is discriminatory to deny same sex spouses access to divorce is it not equally discriminatory to deny them access to financial remedies of which they may have dire need as a result of the marriage breakdown?
The amendments have been drafted to limit the right for non-resident spouses to apply for Canadian divorces to same sex couples. If the amendments were to provide that any non-resident spouse married in Canada could seek a divorce in this country it would open the door to the many Canadian couples who reside abroad. It is common in our globalized economy for Canadians to marry here and then live and work abroad for a number of years, quite possibly having every intention of returning to Canada. If their marriage ends while they are living overseas, and it is possible for them to divorce in their country of residence, they will, under this legislation, still be compelled to divorce there and not be permitted to apply here. It can be quite a shock for a Canadian with expectations based on the values of marital equality on which our system is founded to have to negotiate the divorce law of a foreign state. In many respects our legislation is much more progressive than other jurisdictions. A dependant spouse will be far worse off under foreign divorce law in many countries than if he or she had separated in Canada. Canada is a signatory to the Hague Convention providing that children’s custody and access rights should be resolved where they reside. That makes good sense if only to discourage international child abduction. When it comes to the right to divorce and the financial responsibilities that come with marriage breakdown, however, the policy behind limiting access of non-resident Canadians to the protections of Canadian divorce law is not so clear.
I frequently hear from separated Canadians who are dismayed by their lack of rights in the jurisdiction in which they happen to be living when their marriage fails. Often they had no idea before the separation that they would have to comply with the matrimonial laws of their place of residence. This is an inequality that will not be remedied by the amending legislation. For now, married couples should be asking themselves before any international move: how strong is my marriage, and, what would my rights be if I separate in the country which will be my new home?
