EXECUTIVE SUMMARY
In an effort to resolve foreign Divorce consequences that were unforeseen or unanticipated under the existing Civil Marriage Act, the proposed amendments now forthrightly permit Marriages in Canada that would NOT be permitted in the non-resident spouses' home country, wholly and only to allow those same not-permitted-at-home marriages to be dissolved HERE for the benefit of the non-resident spouse(s) who came here expressly to get the Marriage that was unobtainable in their home country.
Did Seinfeld's writers write this?
Dear Minister,
I read with interest the provisions of the Act currently under review in the Lower House,
C-32 An Act to amend the Civil Marriage Act , and wonder if this patchwork quick-fix doesn't make us look foolish on a very serious issue.
In my youth, I recall derogatory references to quickie, USA divorces available in Reno, Nevada etc where expedience and convenience trumped jurisdictional restrictions and today, I am aware of countries outside Canada where "sex tourism" prevails. In those lands a moral blind-eye and foreign-exchange permits behaviours that the foreigners could not legally enjoy at home.
I think many Canadians look askance at "sex tourism", but cannot do much to influence what happens in "the (rented) bedrooms of other nations".
I review the provisions of C-32 and wonder how we got ourselves into such a predicament - changing Civil Marriage Laws without amending the corresponding Divorce Laws?
Perhaps it was the complications of split jurisdictions Marriage and Divorce is Confederal (s.91(26), BNA/Const.1867) while Solemnization of Marriage is Provincial s.92.(12)?
In any case, someone sure dropped the ball and made all Canadians look foolish :) ;) maybe we can blame this too on some underling within the Privy Council Office -like the Bruce Carson appointment. It might work (again) despite the fact that the PCO staff are all accountable to the Clerk who's (contra-1867) accountable these days to the Prime Minister (yep - google "Order in Council P.C.1940-1121").
But wait a second .... didn't the Supreme Court give the whole SameSex Marriage process the 'green light'? or were the Supreme so concerned with staying within the guidelines of the Reference Case and not upsetting the seemigly-unstoppable E.G.A.L.E 'applecart' that they dared not offend the Commons with an offer of unsolicited corollary advice?
Didn't Justice Minister Irwin Cotler also say everything was tickety-boo? repeatedly? and emphatically? and defiantly?
Well, that was then and this is now, but let's not let haste make waste again ...
Part 1 amends the 2005 Civil Marriage Act to validate Marriages" 5.(1) ...even though either or both of the spouses do not, at the time of the marriage, have the capacity to enter into it under the law of their respective state of domicile."and retroactively validates past Marriages that
"5.(2) ....would have been valid .... but for the lack of capacity of either or both of the spouses to enter into it under the law of their respective state of domicile."
Part 2 amends our Civil Marriages Act to allow non-resident divorces after one year of living "separate and apart"
"7.(1) The court of the province where the marriage was performed may, on application, grant the spouses a divorce if (b) neither spouse resides in Canada at the time the application is made; and c) each of the spouses is residing ... in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage.
In an effort to resolve foreign Divorce consequences that were unforeseen or unanticipated under the existing Civil Marriage Act, the proposed amendments now forthrightly permit Marriages in Canada that would NOT be permitted in the non-resident spouses' home country, wholly and only to allow those same not-permitted-at-home marriages to be dissolved HERE for the benefit of the non-resident spouse(s) who came here expressly to get the Marriage that was unobtainable in their home country.
Two 'wrongs' STILL do not make a 'right' (nor a s.15 identifiable-group right)
So, not to be unkind to foreigners and not to be critical of hasty decisions, made on vacation or actions undertaken "because it's legal here", I feel this is an opportune time to review the whole Civil Marriages Act - what HAS occurred? who has been well-served? and who has been poorly-served or hurt (case under discussion)?
If we had to do it all over again ...
- would we let the Court of Appeal for Ontario led by the now-repentant Chief Justice McMurty "define" for the first time in common law history (NB Hyde v. Hyde and Woodmansee (1866), L.R. 1 P.&D. -One Man and One Woman- was a bigamy case and off-point) what marriage is?
- and would we not beseech the Ontario and/or Confederal Justice departments to appeal it .... just for clarity sake?
- and would we allow a Supreme Court Reference to be presented to "our" highest court with the instructions that the Commons was going to "go ahead regardless"?
-and would we let the Supreme Court slide away from answering Paul Martin's added-late-in-the-game question #4
on the basis that there was "no lower court case on appeal" in front of them and because they didn't want to throw a monkey-wrench into the marriages already performed in good faith. In addition, if the Court had said the opposite-sex requirement was, OR was not, constitutional, they've taken on all the responsibility for this contentious decision without actually having heard a real case with real circumstances.
Despite the fact that SameSex Marriage has been in place for a number of years ...given this first "foreign Divorce" foible in the Act ... given the still-to-come challenges regarding SameSex solemnization by religious officials and use/denial of use of sacred places ... and given the purposely-unappealed decision (based on reversing an off-point definition of Marriage, which I'm calling an error at law) that started the chain-reaction-without-public-input ... wouldn't YOU like this reconsidered?
Before we make another mistake? and look like bigger fools pandering to a boisterous minority?
Do we really want to be the envelope-pushers on this type of sex? The "foreign destination" for sex-sanction-tourists?
That's what Marriage is ... public, civil/religious "sanction" of actions that otherwise are classified as fornication or adultery (yes there are more names but let's not go there).
The 'old' definition was never written down -it was just obvious and apparent and institutionally-known by every man, woman and innocent child - sex-outside-of-marriage has 'bad outcomes', is frowned on, is wise to avoid. Sex inside marriage is condoned, expected and counted on to produce the next generation of reliable, law-abiding souls.
Sanctioned sex outside-of-marriage has only ever been a sign of a decadent society.
Is that the 'sign' we want to display?
Is that what we are?
Decadent?
If not, here's your chance to right a wrong. Marriage cannot be re-defined by the method it was foist upon civil society in Canada. Fix it!
Demand a Royal Commission or Public hearings or whatever you need to get a full hearing of YOUR view.
I'm all in favour of Civil Unions (not marriages) for SameSex couples ... all the privileges and responsibilities, all the duties ... just not the name Marriage and not the 'new' definition of Marriage. It was the wrong approach, the wrong solution and as we see has just caused more problems.
There is no reason that the existing few Canadian-resident SameSex marriages cannot be grandparented under the law, (or at the option of both spouses reclassified as Civil Unions) and no reason to not allow (no capacity in domiciled state) foreigners to get divorced but no reason to allow any further (no capacity in domiciled state) foreigners to get married in Canada until we've had our full and final discussion (perhaps a binding referendum (ie NOT plebiscite) simultaneous with the next election)
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