During the heady days of striving for equal marriage to be made legal in Canada, I remember some discussion at Board level at Egale Canada, and with Canadians for Equal Marriage, that not only will we need to enshrine the right to marry for GLBTQ folk, but the right to divorce as well.  Clearly, similar discussions were never held in cabinet up on Parliament Hill.

Now we have a situation where a lesbian couple married, legally they believed, in Canada in 2005 now wish to legally divorce.  While they were prepared to return to Canada from their respective domiciles in Florida and Europe to do so, they were informed that because they have not fulfilled the one year residency requirement, and their own jurisdictions do not recognize the marriage as valid, they were not, in fact, actually ‘legally married’ at all!

One of the concerns I expressed back then, but realized there was probably not much one could do about it, was the number of individuals coming from outside Canada for the express purpose of getting married.  I couldn’t articulate the concern, apart from a vague discomfort "Getting Married In Canada" was being treated like some sort of trip to DisneyWorld and being made an Honourary Mouseketeer, but I was uncomfortable with it and somewhat concerned what might happen if, after the first flush of excitement faded, these people woke up one morning and went "oops...don’t want to be married after all!".  Naturally, one assumed as adults, individuals wouldn’t enter into such a commitment lightly and would understand what we were saying all along; marriage is marriage.

In fairness, such individuals would naturally assume all the i’s had been dotted and all the t’s crossed.  I guess we missed some stuff that, in retrospect, would appear obvious.  Like having the right to divorce enshrined right alongside the right to marry.

Predictably, once this omission came to light, the Harper government came under attack.

Paul Dewar, a candidate for the leadership of the New Democrat Party following Jack Layton’s death, has accused the Harper government of attempting to "roll back" equal marriage in Canada and "betraying the trust of thousands of same-sex couples who came to Canada looking for equality" after the government intervened in a divorce case of two non-Canadian women who married in Canada, saying the Canadian marriage was never valid because their home countries do not recognize same-sex marriage.  According to Dewar’s website, the government move effectively rules thousands of Canadian marriages null and void. It also sets a precedent that if a home state does not permit a marriage, Canada will not recognize the marriage either.

It’s not like the possibility of divorce hadn’t already hit the public radar.  Back in 2004, when the debate around equal marriage was still raging, a Toronto lesbian couple, known only as M.M. and H.H., filed for divorce.  The women married on June 18, 2003, a week after the Ontario Court of Appeal legalized same-sex marriage. They separated five days later. The couple had been together for almost 10 years. A petition for divorce was filed in Ontario’s Superior Court of Justice in June 2004.

Madam Justice Ruth Mesbur, the presiding judge in this case, approved the couple’s application on September 13, 2004 ruling the definition of spouse in the Divorce Act was unconstitutional. The Act defined "spouse" as "of a man or woman who are married to each other."

At the time of M.M. vs H.H. equal marriage was not yet enshrined in federal law but courts in three provinces (Ontario, B.C. and Quebec) and the Yukon had ruled lesbians and gay men had the freedom to marry under the Charter of Rights. That caused a rush to the altar by thousands of homosexual couples.

Liberal Prime Minister Paul Martin said at that time he would introduce a bill, likely in October 2004, to rectify the legislation and to put it to a free vote in Parliament. However, he warned, it could take up to a year after that for same-sex marriage to be legal nationwide. Martin also stated the Divorce Act had to be overhauled to reflect the changes to the Marriage Act.

"It may take awhile to resolve the issue," Nicholas Bala, a professor of family law at Queen’s University, said at the time. "There are many issues at stake here: what happens if a partner dies and what happens if one of the partner’s is from another province where there is no gay marriage. There is nothing to reference."

Apparently, it never got resolved.

Mind you, at the time, those of us working to bring in equal marriage were busy counteracting the outrageous attacks from the Right.  We often felt we were being pulled off course to deal with accusations our ‘true’ agenda was to legalize pedophilia or to create an environment in which marrying ones daughter or son would also be legal.  That details such as what would happen should a same-sex marriage, like any marriage, fail never got fully addressed is not surprising since our focus was on the success of the initiative.  A few voiced some foresight and talked about ‘what if’ scenarios, but there was so much work to be done, such scenarios were, sad to admit, overlooked or shelved.  The view was, we would deal with those issues once equal marriage was made law but for now, the focus was lobbying to have equal marriage legalized.  In retrospect, it was a major oversight with serious ramifications for those individuals who trusted us and, quite logically, assumed everything was in place as it should be.  Besides, who thinks of divorce when you are standing before a marriage commissioner preparing to exchange vows of eternal love with the person you fully intend to spend the rest of your life with?  Romance and hope tend to wash out practicalities.

Gilles Marchildon, then the Execituve Director of Egale Canada, one of the principle organizations involved in the fight for equal marriage, urged Canadian legislators to move on the divorce issue.

"There’s a legal vacuum in this country," he said at the time. "The court will need to make a decision based on current law [but] it also has latitude in terms of the statutes involving common-law partnerships."

In 1999, the Supreme Court of Canada ruled that it was unfair that a Toronto lesbian had no rights to sue a former partner for support. The following year, Ottawa passed Bill C-23, which ruled that same-sex couples were entitled to the same federally legislated benefits, obligations and status as heterosexual common-law couples. Under that law, there was no sharing of property when a common-law relationship ended, with the exception of jointly-owned property.  The same rules do not apply, however, to divorcing couples.  In the instance a marriage ends, there are certain settlements and property divisions that need to be dealt with legally.  Following the Mesbur ruling, the federal Justice Department conceded that excluding lesbians and gay men from the Divorce Act was unconstitutional.

This all seems relatively clear, as legalities go, but it applies only to residents of Canada.  Those coming into Canada to be married from jurisdictions and countries that did not recognize same-sex marriage - and many instances still don’t - seemed to have slipped through the cracks.

It is ridiculous to now tell them, ‘oh, well, since your country doesn’t recognize same-sex marriage, you aren’t actually married.’  Did the thousands who came to Canada to be married only experience some phoney but oh-so-romantic rite?  That’s not what they were told then.  They were told if you marry in Canada, the marriage is valid and recognized as such in Canada and by other countries that recognize same-sex marriage, even if one’s own country doesn’t recognize the validity of the marriage.  Does that lack of recognition render the marriage any less valid?  The answer back then was no, it is a legal and valid marriage.  Now they are being told it isn’t and never was.  That cannot be allowed to stand.

If residency stipulations were waived or not required in order to be married in Canada, then residency stipulations for divorce should mirror that.  As it stands now, one has to be a resident in Canada for a year in order to divorce in Canada.  Of course, safe guards need to be in place to ensure divorce is not being taken lightly or entered into trivially.  But so, too, should marriage have such safe guards in place.  Perhaps some, back in those heady days of early legalization, did in fact get married and didn’t think it through or consider just what it was they were getting into, legally.  Legal rights and responsibilities cut both ways, as they should.  Just as the state has responsibilities towards the individual in such matters, so too does the individual have responsibilities and amongst those, one would assume, is the understanding ‘getting married’ is not like going out to buy a flat screen TV.

However, couples married in Canada essentially entered into a contractual agreement with us.  We have an obligation to them to ensure that contract is honoured in all its nuances, including the right to divorce.  If, in fact, nonresidents cannot obtain a divorce in the same country in which they married in good faith, then we need to fix that.  Now.  To leave people in some legal limbo is, quite clearly, just not right.

This is not about ‘revisiting’ the equal marriage debate.  We’ve had that and equal marriage is law.  This is about fixing what went wrong.  This is about setting things right.  This is about fairness.