TORONTO – Canadian family law came under fire recently
because of a rule saying that couples from other countries do not have the
right to divorce in Canada unless one of them has lived here for a year.
This residency requirement is at the heart of a case involving two foreign women, who
cannot be named, seeking divorce in Ontario. They are unable to divorce each
other because neither of them lived in Canada for a year, with one living in
Florida and the other in London, England.
Despite the controversy, changes are coming soon,
according to one law professor. Global News spoke with Professor Brenda Cossman from the
faculty of law at the University of Toronto about the controversy surrounding
this divorce case and possible changes to Canadian family law.
Global News: What are the current laws regarding
same-sex marriage in Canada?
Brenda Cossman: Same-sex couples have exactly the same right
as opposite sex couples to marry in Canada. Marriage is now defined for civil
purposes, as the lawful union of two persons to the exclusion of all others.
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GN: How is the law different if those involved
are not Canadian citizens or permanent residents?
BC: Canada’s
marriage laws have no residency requirement. Non-residents and non-citizens can
come to Canada, obtain a marriage license and get married. The problem
arises in relation to divorce: Canadian divorce laws have a one-year
residency requirement. This applies to both same-sex couples and opposite
couples. But, while opposite couples are likely to be able to get a
divorce at home, same-sex couples often cannot. If the law does not
recognize same-sex marriage, it is also unlikely to recognize same-sex
divorce. This leaves same-sex couples in a predicament: they cannot
get divorced at home, and they cannot get divorced in Canada without living
here for a year.
problem. According to Canadian law, we only recognize marriages if they
are valid in the place where the couple resides. This means that if a
couple came to Canada to marry because they couldn’t get married where they
live, then according to this rule, it would not be a valid marriage in Canada
either. This would apply equally to same-sex couples and opposite sex
couples. If an opposite sex lived in a state that did not recognize
cousin marriages, and came to Canada to get married (yes, we do recognize
cousin marriages), then according to the rules of marriage recognition, it
would not be a valid marriage. The same rule would be applied to same-sex
marriage: If a couple came here to marry because their home state did not
recognize same-sex marriage, that would not be a valid marriage. This was
the so-called anomaly in Canadian law, which the federal government is
currently proposing to fix. The amendments will make all marriages of non-resident couples
that were performed in Canada valid under Canadian law, and will also allow
these couples to end their marriages if they cannot get a divorce where they
live.
GN: Does the law see any difference between
heterosexual and same-sex marriages? What is the difference (if any) and why?
BC: In Canada,
there really are no differences between same-sex marriage and opposite sex
marriage. Both are full legal marriages. Both can be terminated by
divorce. In fact, both have the same grounds for divorce available to them: living
separately and apart for one-year, adultery or cruelty.
It is a little different for
non-residents. According to the amendments proposed by the federal
government, they will now be able to get a divorce in Canada without the
one-year residency requirement. Those couples must have lived separately
and apart for one year before making the application for divorce. Adultery and
cruelty are not grounds for divorce. And the application needs to be made
jointly, whereas Canadians can make the application unilaterally.
GN: Does the law currently have any ambiguity
regarding divorce in general?
BC: There was no
ambiguity in the divorce laws regarding the one-year residency
requirement. It applied to everyone: same-sex, opposite sex, resident or
non-resident. The amendments to the law are now helping non-resident
couples to divorce without that residency requirement.
There was the anomaly that marriages entered into in
Canada would not then be recognized as valid in Canada if they were not valid
where the couple lived. This is the anomaly being fixed by the
amendments to the marriage law. Once passed, the law will make clear that
all marriages entered into in Canada will be recognized as valid in
Canada.
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