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Canada's Prime Minister Stephen Harper speaks during Question Period in the House of Commons on Parliament Hill in Ottawa December 15, 2011.
Credit: Reuters/Chris Wattie
By David Ljunggren
Thu Jan 12, 2012 3:16pm EST
OTTAWA (Reuters) - The Canadian government has abruptly started to argue that the same-sex marriages of many foreigners who wed in Canada are not valid, a move that stunned the gay community and could affect thousands of couples.
In 2005, Canada became one of the first nations in the world to formally legalize gay marriage. As a result, same-sex couples have been marrying in their thousands in Canada - with many coming from the United States or overseas.
Ottawa now says many - if not all - these unions are invalid. It made the argument in a submission in a case where two women, one from England and the other from Florida, are now seeking a divorce after getting married in Canada in 2005.
The government's position has also prompted sharp questions about why Ottawa allowed so many foreign same-sex couples to get married for so long before deciding the unions were not valid.
"(This) is about to, if it hasn't already, make us look like fools on the international stage," said Martha McCarthy, a lawyer for the lesbian couple at the center of the furor.
"We're the leaders of gay marriage ... and the federal government is saying 'Oh, yes, sorry, we forgot to mention that for the last nine years we've been marrying people that we didn't think those were valid'," she told Reuters on Thursday.
Critics blamed the right-of-center Conservative government, which they say wants to roll back social rights such as gay marriage and abortion. Prime Minister Stephen Harper said he was unaware of the case.
Activists estimate that around 15,000 people have held same-sex weddings in Canada since 2003, when some provinces first allowed gay marriages. About 5,000 were foreigners, many from countries and U.S. states that do not recognize gay unions.
The couple now seeking a divorce married in Canada in 2005 but Ottawa says the marriage "was not legally valid under Canadian law" because the women could not have lawfully wed in England or Florida. It also cited the Canada Divorce Act, which says any couple seeking to end a marriage in Canada must have lived there for a year.
McCarthy said her clients' message was: "We can't get divorced in our own jurisdictions because they don't recognize the validity of our marriage. You guys here in Canada married us so please give us a divorce because no one else will."
A Toronto judge will hear the case on February 27 and 28 and decide whether the government's argument is valid. The decision is bound to be appealed by the losing side.
The surge in the number of gay marriages has been a boon for the Canadian tourist industry, which was quick to offer wedding packages to U.S. couples.
Evan Wolfson, president of New-York-based gay rights group Freedom to Marry, said it would be "extreme, absurd and cruel" to now declare the Canadian marriages invalid.
"This will come as giant shock not only to the couples but to the businesses, employers, banks and others who deal with them so hopefully they're going to walk back this preposterous undermining of families," he told Reuters.
The issue could become a political problem for Harper, who told reporters in Halifax that his government had no intention of reopening the gay marriage file.
"Canadians need to know that advances that they thought were secure are now under threat from the Harper neo-conservatives," said Bob Rae, leader of the opposition Liberal Party.
Nick Bala, a professor and family law expert at Queen's University, said the case underlined existing problems with the way gay marriage works in Canada.
"There are good reasons why Canadian family courts are only going to take jurisdiction over relationships that have a significant (link) to Canada," he told Reuters. Foreign gays who only came to Canada to marry and then returned to seek a divorce could have major problems if child custody were an issue.
"Are we going to start making decisions about children who are living in California and, if we do, how are we going to enforce those judgments? ... California courts would say 'the child is living (here), you can't make an order about this child, we're not going to respect your order'," said Bala.
A more complex issue would be posed in the case of people from a U.S. state like Iowa, which permitted gay marriage in 2009. Whether Iowa would recognize a gay marriage or divorce that took place in Canada before then is open to debate.
"There are good reasons for Canada to be a marriage haven for same-sex couples. It's not clear that it should be a divorce haven for same-sex couples," Bala told Reuters.
No one was available for comment in the office of Justice Minister Rob Nicholson or Foreign Minister John Baird, who has campaigned on behalf of gay rights abroad.
(With additional reporting by Richard Woodbury in Halifax; editing by Rob Wilson)
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