Supreme Court Publishes Rules for Divorces Under Civil Marriage Act

Regular readers will recall the August amendments to the federal Civil Marriage Act intended to allow non-resident same-sex couples marrying in Canada the ability to get divorced when they reside in countries which do not recognize same-sex marriages; see my post on the subject, "Civil Marriage Act Amended to Allow Non-Residents to Divorce."

Since the amendments were made, I am aware of two lawyers who have begun divorce proceedings under the Civil Marriage Act, as they were entitled to do, despite the absence of rules and forms. The Supreme Court has at last filled the gap and announced, effective 28 October 2013, a new Practice Direction on the issue, PD-43 (PDF). Here's the Practice Direction in a nutshell:

Claims for a divorce under the Civil Marriage Act are to be starting by one or both spouses filing a Requisition in Form 31. 

Where only one spouse is asking for the divorce and the other spouse consents to the divorce, the applicant spouse must also file:

1. their marriage certificate, 
2. a draft divorce order in Form 35 signed by both spouses, 
3. the applicant's affidavit stating that the marriage has broken down because the spouses have been separated for at least one year, that neither spouse resides in Canada and that each of the spouses live in a country in which a divorce cannot be granted, and
4. the other spouse's affidavit consenting to the divorce.

Where only one spouse is asking for the divorce and the other spouse does not consent to the divorce, the applicant spouse must also file:

1. their marriage certificate, 
2. a draft divorce order in Form 35 signed by the applicant spouse, 
3. the applicant's affidavit stating that the marriage has broken down because the spouses have been separated for at least one year, that neither spouse resides in Canada and that each of the spouses live in a country in which a divorce cannot be granted, and
4. an order from a court in the country where either spouse lives saying that the other spouse cannot consent to the divorce issues because of mental incapacity, that the other spouse is unreasonably withholding his or her consent to the order or that the other spouse cannot be found.

Where both spouses are asking for the divorce, they must also file:

1. their marriage certificate, 
2. a draft divorce order in Form 35 signed by both spouses, and 
3. an affidavit from each spouse stating that the marriage has broken down because the spouses have been separated for at least one year, that neither spouse resides in Canada and that each of the spouses live in a country in which a divorce cannot be granted.

If the court is satisfied that the divorce should be given, the divorce will be effective from the date of the order without an appeal period. The court registry will issue a Certificate of Divorce to a spouse who requests one. 

The Practice Direction sets out examples of the forms to be used — and remember that these are civil court forms, not the usually family law court forms usually used in divorce cases — as well as handy and important reminders such as these:

• the Practice Direction does not apply to divorces under the federal Divorce Act; and,
• no claims for other orders, like about support, the care of children or the divisions of property made be made in divorce proceedings under the Civil Marriage Act.

Civil Marriage Act Amended to Allow Non-Residents to Divorce

The federal Civil Marriage Act came into effect in 2005 to give same-sex couples the right to marry throughout Canada by defining marriage as "the lawful union of two persons to the exclusion of all others;" this followed a number of appeal decisions which held that restricting the right to marry to opposite-sex couples was unconstitutionally discriminatory. This was great, of course, however because the Divorce Act defined spouse as "either of a man or a woman who are married to each other," opposite-sex couples could marry but they couldn't divorce.

This oversight was corrected a few months later (the Divorce Act now defines spouse as "either of two persons who are married to each other"), but still left foreign couples marrying in Canada somewhat in the lurch. This problem is what the new amendments correct. Let me explain.

Under s. 3 of the Divorce Act, before a spouse can start a court proceeding for a divorce order, he or she must have been "ordinarily resident" for at least one year in the province in which the proceeding is brought. There are, however, no similar residency requirements to get married, which is why same-sex couples from across the world came flocking to Canada once same-sex marriage had been legalized; see barbara findlay's blog post on the subject and on the new amendments. As a result, non-resident couples marrying here were left in the difficult position of being legally married (for Canadian purposes at least) but unable to get divorced if their home states defined marriage as being the exclusive to opposite-sex couples.

My simplistic take on this issue was that if a non-resident couple's home state didn't recognize same-sex marriage, then they wouldn't be considered to be married in their home state and, as a result, didn't need to get divorced; see my post "The Validity of Same-Sex Marriages" for a more complete explanation. Whether I was right or wrong on the issue — I suppose there's an argument to be made that if your relationship has tanked, you'd probably like to be divorced, even if your marriage is only recognized in a few jurisdictions, perhaps to avoid future legal problems or perhaps to obtain a sense of closure — the federal government has acted.

By Order in Council 2013-889, made under the Civil Marriage of Non-Residents Act, the Civil Marriage Act has been amended as of 14 August 2013 to allow special access to the Canadian courts for non-residents marrying in Canada who need to get divorce and can only get divorced here; see the Canada Gazette notice. Section 7 of the new act provides a means to get a divorce order other than through the Divorce Act and says this:

(1) The court of the province where the marriage was performed may, on application, grant the spouses a divorce if

(a) there has been a breakdown of the marriage as established by the spouses having lived separate and apart for at least one year before the making of the application; 

(b) neither spouse resides in Canada at the time the application is made; and 

(c) each of the spouses is residing — and for at least one year immediately before the application is made, has resided — in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage.

(2) The application may be made by both spouses jointly or by one of the spouses with the other spouse’s consent or, in the absence of that consent, on presentation of an order from the court or a court located in the state where one of the spouses resides that declares that the other spouse

(a) is incapable of making decisions about his or her civil status because of a mental disability; 

(b) is unreasonably withholding consent; or 

(c) cannot be found.

(3) Despite paragraph (2)(c), the other spouse’s consent is required if that spouse is found in connection with the service of the application.

However, there's two things to be aware of.

First, under s. 8, the Divorce Act does not apply to divorces granted under the Civil Marriage Act, which means that a person seeking a divorce under the Civil Marriage Act cannot apply for custody or access to any children, or for child support or spousal support.

Second, under s. 10, the divorce has legal effect throughout Canada, but not necessarily in jurisdictions outside of Canada. The validity of the Canadian divorce will be determined under the law of the couple's home state.

US Supreme Court Releases Landmark Decision: Ban on Gay Marriage Overturned

The Supreme Court of the United States has today released its decision in United States v. Windsor, a case in which an 83 year old woman from New York challenged, successfully as it turns out, the constitutionality of the Defence of Marriage Act in relation to her right to inherit as a spouse from the estate of her deceased partner.

The ironically titled Defence of Marriage Act was implemented to restrict marriage to opposite-sex couples in the face of a surging momentum to sanction same-sex marriage in various states across the union, including California, Washington and New York. Section 2 of the act says this:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship

Today's decision strikes the law down but, and this is an important nuance, does not "legalize" gay marriage. Saying you can't ban something is not the same as saying that it's legal, and I expect that the struggle for equality will be fought on a state-by-state basis. The National Journal has a very useful map showing the state of gay marriage across the US.

As a footnote, it occurs to me that if one were really to "defend" marriage, one would ban arranged marriages and provide couples planning on marrying with counselling and information on the legal consequences of marriage and divorce.

The Validity of Same-Sex Marriages

There's a new and entirely unnecessary controversy brewing about same-sex marriages, and the media headlines I've seen suggest that Canada is somehow changing its position on same-sex marriage as a result of the divorce action of a foreign same-sex couple who married here. Apparently a Department of Justice lawyer argued that their marriage wasn't valid in the first place.

Okay, hold on people. Take a breather. It's not what the media seems to think, and the lawyer from Justice was right.

This is a problem about the "conflicts of laws" — the law dealing with how the laws of one sovereign state interact with the laws of another sovereign state — not a change in policy of a conservative government. The two basic rules about the validity of foreign marriages are these:

1. The legal capacity of a couple to marry is governed by the law of the "matrimonial domicile," the state where the spouses wind up living after they are married. (If the law of Country A says that people named John can only marry while wearing pink underwear in months beginning with the letter "M", this requirement of marriage applies to all of the residents of Country A, including those who got married in Countries B, C and D.)
2. The formalities of the marriage ceremony are governed by the law of the place where the marriage occurs, the "lex loci celebrationis." (If the law of Country B says that marriages may only be performed by mechanics waving squirrels, a marriage in Country B must be performed by a mechanic waving a squirrel to be valid in Country B or in Country A.)

In other words, a foreign same-sex couple will only enter into a valid marriage in Canada if their home country, the country which is their matrimonial domicile, recognizes that same-sex couples can marry. If the home country doesn't recognize the fundamental legal capacity of gays and lesbians to marry, a Canadian marriage, though legal and recognized here, won't be legal and recognized there.

To be clear, this isn't a result of the Harper government and a nefarious and regressive intention to undermine the marriages of awesome people like Dan Savage, it's about the basic rules of international law ... and those are somewhat beyond the influence of the Canadian government. (Dan, this isn't a problem with the laws of our country, it's a problem the with laws of your country.)

Have a look at my website for more information about the validity of marriage generally, including the validity of foreign marriages.

Update: 13 January 2012

The CBC reports that Canada is amending the Civil Marriage Act to ensure that the marriages of foreign couples are recognized in this country and quotes the Ministry of Justice thusly:

"I want to make it very clear that, in our government’s view, these marriages should be valid. We will change the Civil Marriage Act so that any marriages performed in Canada that aren't recognized in the couple's home jurisdiction will be recognized in Canada," he said in a statement.

"This will apply to all marriages performed in Canada. We have been clear that we have no desire to reopen this issue – both myself and the prime minister consider this debate to be closed."

This will not, of course, affect the international conflicts of law rules or compel countries with less egalitarian laws to recognize Canadian marriages, but it will clear up any confusion about the domestic validity of the marriages of foreign same-sex couples.