Anti-Gay Political Sneakiness: Canada's Divorce Non-Problem

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Anti-Gay Political Sneakiness: Canada's Divorce Non-Problem

In the last week, the big Canadian news story has been all about divorcing the gays! A lesbian couple (names protected by court order) married in Canada in 2005 and split up in 2009 and now they want a divorce. But one lives in Florida and the other in the UK and this is a problem.

To review: In 2003, gay marriage began to be legalized in some provinces. In 2005, gay marriages were federally legalized.  Since Canadian law allows any foreigners to come get married here too (no wait period or residency requirement), gay marriage tourism boomed. Canada's marriage commissioners have so far brought wedded bliss to about 7500 gay Canadian couples and about 5000 foreign gay couples (probably mostly Americans).

Nine years later, some couples want a divorce. This is tricky for couples who live places where gay marriage (and gay divorce) are not recognized. Canada (like many states) requires that one spouse must reside here at least one year before they can divorce (for all marriages, gay or straight). This prevents us becoming the Nevada of the north: We don't want our courts overburdened with Americans seeking quickie divorces, so we made it not quick. 

The lesbian couple in question went to a Canadian divorce court last June. They don't meet the residency requirement, but they argued that the law discriminates, since it unfairly affects gay people over straight people. And then things got interesting.

Sean Gaudet, the federal government lawyer, made two arguments in response: First, they don't meet the residency requirement. Secondly, he claimed international private law states that for their marriage to be legal they must meet the requirements both where they were married and where they live. UK and Florida don't allow gay marriage, so he argues that their marriage was never legal in the first place.

The press cried Wait! What?You just declared 5000 gay marriages performed in Canada invalid! The couple promptly sued for $30,000 in damages for negligent misrepresentation by the province of Ontario if their marriage is found invalid. Gay marriage tourism companies had a collective freak-out at the prospect of thousands of similar lawsuits plus the end of their industry. Dan Savage (who got married in Vancouver) said: “Now if you'll excuse me, I need to go wake up my husband and tell him we got divorced last night.”

Conservative Prime Minister Stephen