Federal government about to miss deadline to pass gay divorce bill

OTTAWA — The federal government is about to miss a key deadline to pass a bill that would close a legal loophole that has prevented foreign same-sex couples who married in Canada from seeking a divorce.

When it came to light in February 2012 that a lesbian couple married in Toronto in 2005 was unable to divorce because the Divorce Act requires applicants to have resided in the country for at least 12 months, the government was under intense international pressure to act.

It quickly introduced Bill C-32, the Civil Marriage of Non Residents Act to rectify the situation, and in August, struck a deal to put the court case on hold in the interim.

According to the agreement, the proceedings would be stayed until such time as the bill passes and receives royal assent, is defeated or until June 1, 2013.

So far, the bill hasn’t moved beyond the introduction stage.

“I have no information about what (the government is) doing and I don’t have a plan yet with my clients,” lawyer Martha McCarthy admitted Friday, noting the expectation was that the bill would pass before the House of Commons rose for the summer break which is still a few weeks away.

“My options are to reinvigorate the proceedings — take steps to schedule a hearing or some other dialogue, or to try and get some individual outcome for my client.”

It’s essentially what she was doing in the six months between the bill’s introduction and the agreement to stay proceedings but she said the government “wasn’t receptive” at the time. Calling it a “weird situation to be in,” she made the tough decision to agree to do nothing and leave her clients to wait patiently since it appeared the government was acting in good faith by introducing the bill.

“If they’re not going to pursue it, if the legislation isn’t going to be introduced, we have to decide again what to do,” she said.

The federal government has offered little indication as to the hold up. Justice Minister Rob Nicholson, who introduced the legislation, said recently that it’s in government House leader Peter Van Loan’s hands.

“When our government tabled this legislation, we made it clear at the time that we had no intention of reopening the same sex marriage debate, but we would fix the gap left in the law resulting from changes made by the Liberals in 2005. We acted in good faith and put forward a speedy fix that would eliminate the gap in the law,” Nicholson said late Friday.

“Over the past year, the government House leader has sought several times to obtain unanimous consent from opposition parties to pass this legislation expeditiously. But the NDP has steadily refused to give its consent. The NDP is set on revisiting the same-sex marriage debate, which was settled by Parliament in 2005, and again in 2006.”

Nicholson said he and Prime Minister Stephen Harper have been clear that “we consider this debate to be closed. This legislation is a straightforward answer to a straightforward problem. There is no reason why it should not receive unanimous consent from the NDP.”

Van Loan’s office indicated earlier this month that the bill wasn’t on the immediate agenda. That said, he has called for unanimous support for the bill on several occasions, most recently on May 21.

Randall Garrison, the NDP’s critic for lesbian, gay, bisexual and transgendered issues, has called it ridiculous that the government has tried to blame his party for holding up the bill.

He believes there are some technical flaws with the bill and that it warrants some scrutiny, but argues the opposition is in no way planning to stymie its passage. It’s a government bill, he argues, and as such, it’s incumbent on the government to put it on the agenda.

“I think it might indicate they have problems in their own caucus, or that they worry about problems in their own caucus on this bill,” he mused. “I can’t come up with any other reason why they wouldn’t proceed.”

According to the 2005 vote on same-sex marriage that gave rise to gay wedding tourism, 52 still-sitting Conservative MPs voted against. Despite repeated request for comment, none indicated they had any concerns with what is essentially a gay divorce bill. In fact, only one MP responded. A spokeswoman for Wellington-Halton Hills MP Michael Chong said in an email that he would be ” supporting this legislation because it fixes an oversight in existing law.”

The Civil Marriage of Non Residents Act was introduced February 17, 2012. It amends the Civil Marriage Act so that marriages performed in Canada between non-residents of the same or opposite sex are considered valid under Canadian law even if the individuals could not be legally married in their place of residence. It also establishes a new divorce so Canadian courts could grant a divorce to non-resident spouses who reside in a state where a divorce cannot be granted to them because that state does not recognize the validity of their marriage.

It was introduced after the unnamed couple’s case made international headlines when a federal lawyer for the Justice Department suggested the couple couldn’t divorce in Canada since they were never really married in the first place. Because the couple’s marriage wasn’t recognized in their home jurisdictions — Florida and England in this case — Canadian law stipulates their marriage couldn’t be recognized here either, the lawyer argued.

The revelation touched off a political firestorm as the federal tourism department had been wooing Americans to come north of the border to get hitched.

tcohen@postmedia.com

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