Marriage bills stalled in Parliament

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It sounds like an episode of Yes, Minister.

Members of the government, accused of annulling thousands of marriages, take immediate legislative action – over a problem that may not actually exist – only to stall their own bill, accusing the opposition of holding it up. The opposition members, for their part, are not supporting the bill because they want to pass their own – nearly identical – piece of legislation.

It’s a bit confusing.

Rewind to January, when many Canadians were surprised to see the gay marriage debate rear its head once more – despite years of adamant promises on the part of the prime minister that he would not reopen this file.

The Globe and Mail reported that thousands of same-sex marriages performed in Canada would be voided. Columnist Dan Savage set his sights on the government over the issue, propelling the story into international media.

While some were quick to point fingers at the prime minister’s office, Halifax lawyer Kevin Kindred explained in Xtra that the situation was much more complicated. It wasn’t government policy at all, he said.

The kerfuffle came from a lesbian couple’s argument in a Toronto court – one woman British, the other American. They had been married in Toronto and were seeking a Canadian divorce. It was a Department of Justice lawyer who argued that, because the couple had not been Canadian citizens for at least year, they could not file for a divorce. When they protested, they were told that their marriage was never valid to begin with because neither had ever lived in Canada. While the argument was alarming to many, the decision applied only to the couple. A government self-conscious about its social conservatism wouldn’t likely repeat a similar decision.

Just the same, the Conservatives introduce Bill C-32. The legislation changes the law, clarifying that residence in Canada shouldn’t affect the marriage of any couple who would have been otherwise allowed to marry if they had been living in Canada. That, essentially, makes so-called “tourist marriages” legal. It also ensures that if those marriages result in divorce, the Canadian legal system can handle it. It would apply retroactively, too.

Kindred, who followed the introduction of the bill, says it addresses the problem, but he worries the issue has not been discussed comprehensively by the government and might just be a lot of hot air.

“They introduced a bill to get out of the negative publicity,” Kindred says. “It smacks of being cobbled together.”

The story would have ended there, except that the bill was never brought back before the House and never even came to a vote – where it would, no doubt, have passed.

The NDP, seeking to jump-start the glacial pace at which the government was dealing with the bill, introduced its own attempt to rectify the situation. In June, LGBT critic Randall Garrison brought forward private member’s bill C-435, which covered all the bases addressed by the government’s bill, and a few more.

One of the fixes rectifies a “technical flaw” in the government’s legislation that would make divorce impossible if one partner was “missing or withholding consent,” Garrison said in the House.

It would also give authority to Canadian courts to deal with matters of child custody, if the couple is divorced.

That, says Kindred, “is not a great idea.” He points out that giving Canadian courts jurisdiction over child custody in areas where a marriage is not even recognized presents myriad problems.

Dany Morin, deputy LGBT critic for the NDP, disagrees. He says that if a couple is looking to go through the divorce process in Canada, they should be able and willing to deal with child custody through Canadian courts as well. He points out that areas that don’t recognize same-sex marriage are biased toward the biological parent in matters of custody.

So when does it get passed?

It’s the NDP that’s holding up the legislation, says a press secretary for Justice Minister Rob Nicholson.

“In our government’s view, these marriages should be valid,” the spokesperson says. “Unfortunately, the NDP has refused to work with us to get this legislation passed quickly.”

Any partisan gridlock on the issue is curious for two reasons: the majority Conservative government doesn’t need the NDP’s support to bring the bill back to a vote and get it passed, and the NDP’s version of the bill is virtually identical – the two additions aside.

The NDP’s hardball tactics could spell trouble for those looking for confirmation that they are, in fact, married – private member’s bills take longer to get through the House than government legislation.

But Morin says the NDP would be more than happy to support the government’s legislation – but he wants a debate on the bill. Currently, he says, the Conservatives just want to vote on the bill without debate. He would, however, be open to forgoing the debate if the Conservatives make the NDP’s requested changes to the bill.

But the government doesn’t seem inclined to do that. Nicholson’s spokesperson says he hopes to have the bill back before the House by fall.