By Phoebe Moses

WINDSOR, ONTARIO – Canadian courts are debating the legal niceties of the nation’s marriage laws as a divorce case involving a Florida woman and her partner from England, who were married in 2005 in Toronto, threatens the very legal basis for Canada’s same-sex marriage statutes.

The women sought a Canadian marriage because same-sex unions weren’t legal in either of their countries of origin. Now seeking a divorce, the case threatens to upend the lives of more than 5,000 LGBT people who moved to Canada because of the freedom to marry.

At the heart of the controversy is the couple’s application for divorce, which the government says cannot be granted because the couple wasn’t married to begin with. An attorney with Canada’s Department of Justice, Sean Gaudet, said in a documented response to their application: “Neither party had the legal capacity to marry a person of the same sex under the laws of their respective domicile – Florida and the United Kingdom. As a result, their marriage is not legally valid under Canadian law.”

In addition to his argument that since the women are not legally married in Florida or England, their marriage is not valid in Canada, either, Gaudet added that under the nation’s federal marriage laws, a married couple must reside in Canada for at least one year in order to qualify for a divorce.

During the past six years, thousands of couples from the U.S. and other countries have emigrated to Canada because of the nation’s marriage equality laws. That began with the 2004 court ruling that legalized same-sex marriage in Canada on the grounds that it was discriminatory to deny same-sex couples the right to marry. Canadian lawmakers passed legislation recognition its legality the following year.

In 2006, Prime Minister Stephen Harper’s Conservative Party attempted to roll back same-sex marriage through a parliamentary measure to “restore the traditional definition of marriage,” but it was defeated by lawmakers. On Jan. 12, Harper said that his administration will not revisit same-sex marriage. “We have no intention of further reopening this issue,” the 51-year-old prime minister said.

Canadian Justice Minister Rob Nicholson echoed Harper’s words, saying, “I want to be very clear that the government has no intention of reopening the debate on the definition of marriage.” In a possible effort to sound a conciliatory note, Nicholson added that he will consider “options to clarify the law so that such marriages performed in Canada can be undone in Canada.”

When the Superior Court decides the case next month, it has several options, including denying an application to waive the residency requirement for divorce, which would leave the women unable to remarry, or the Department of Justice’s argument could spell the end of Canadian weddings for foreign gay couples unable to legally marry in their home countries.

PHOTO:   EnergeticCity.ca