A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

Divorce Please: Department of Justice says no thank you

Recently a couple has been told they cannot get a divorce in Ontario…because they were never really married?

Two women, who regularly reside in Florida and England, were married in Ontario in 2005.    These women applied to the Ontario Court for a divorce.  A  legal argument filed by the Department of Justice  opposes the couple’s joint application for a divorce.  The Department of Justice argues that the couple cannot get divorced because the places they regularly live do not recognize their marriage as being valid – Florida and England are jurisdictions that do not recognize the validity of same sex marriage.

So what gives?  Is this a politically motivated interpretation of private international conflict law to advance an agenda?

While I feel the argument filed by the Department of Justice is a very strong application of conflict law, there are some valid reasons why a couple (same sex or different sex) might not be able to get a divorce in Canada if they are not resident in Canada (even if they were married in Canada).  For example:

  1. Provincial residency requirements in civil marriage acts can require that one spouse reside in a province for a certain amount of time before applying to that province for a divorce (as a note – I am not aware of a provision requiring you to live in a province for a certain amount of time before getting a marriage in that province); and
  2. Lex loci celebrationis (the Latin term forl aw of the place where the marriage is celebrated) vs. lex loci domicilli (law of the domicile). The rules for the essential validity of a marriage are governed by the laws of the pre-marital domicile and formal validity of the marriage are governed by the location of the celebration. These conflict of law rules apply equally to same sex and opposite sex couples;

Prime Minister Steven Harper has said that he is not re-opening the issue of same sex marriage that was resolved in 2004 by the Supreme Court of Canada’s decision (it was found that the federal government had the authority to amend the definition of marriage to allow all Canadians to marry.

Update January 13, 2012: a statement was issued by the Justice Minister, Rob Nicholson, clarifying that a legislative gap had caused the above noted confusion and that it will be closed:

…I want to make it clear that, in my government’s view, those marriages should be valid…

As reported in the Globe and Mail:

Mr. Nicholson blamed the former Liberal government for the problem, because, when it legalized same-sex marriage, it did not address the fact that the residency requirement was destined to leave thousands of couples unable to divorce. Former Liberal justice minister Irwin Cotler responded that it did not stick out as a serious potential problem.

 

Justice Harvey Brownstone: the perspective of Canada’s celebrity Judge

Over the holiday break I had a chance to get caught up on Justice Harvey Brownstone’s show, Family Matters with Justice Harvey Brownstone.

I have been following the work of Justice Harvey Brownstone for a few years.  He is a sitting Justice of the Ontario Provincial Court and has been creating excellent resources for Canadian families that incorporate his unique perspective into the information and advice he gives.

Currently the show, Family Matters with Justice Harvey Brownstone, is being broadcast weekly in British Columbia on Chek News and in Ontario on CHCH.

The show is a great resource aimed at providing legal information relating to family law and the Canadian justice system  in a unique and approachable way. As described on the Family Matters website the show is a:

TV program with a focus on a multiplicty of issues affecting contemporary North American life, with a particular emphasis on the interplay between relationships and the justice system: internet dating, addictions, prenups, mental health, adoption, surrogate parenting, same-sex relationships, multicultural relationships, parenting after separation and divorce, mediation, child neglect and abuse, child and spousal support – and this is just the tip of the iceberg! Hosted by an actual sitting Ontario family court judge, this exciting show is the first of its kind anywhere. Justice Brownstone provides educational episodes in an informative, compelling and entertaining talk show format, with guests who are experts in their field and who – until now – have never been accessible to the public.

I would suggest taking a look at Justice Harvey Brownstone’s Family Matters episodes that are currently being broadcast.  If you missed a 2010 episode, or want a quick reference to a specific topic, the episodes are available online (you have to purchase them).  Some of my favorite episodes are “View from the Bench” with retired Judge Michael Porter and “Marriage Confidential”.

There are some free resources you can access as well.  An interview with Justice Brownstone is available on YouTube (as seen above) and you can get Justice Harvey Brownstone’s book “Tug of War A Judge’s Verdict on Separation, Custoyd Battles, and the Bitter Realities of Family Court” at a local library  or buy it online.   This book has been reviewed in the media over the past year including: the Globe and Mail, the CBC, and many others.

Hello Family Law Act, Goodbye Family Relations Act: upcoming in 2012 and 2013

In the next (approximately) 12-18 months the new Family Law Act will come into force, replacing the Family Relations Act…The Family Law Act was passed in British  Columbia’s legislature on November 23, 2011 and it received Royal Assent on November 24, 2011.  There were some changes that came into effect on November 24, 2011 including the repeal of the obligation to support parents (Section 90 of the Family Relations Act), the repeal of provisions regarding property agreements (section 120.1) and changes to a number of BC acts to use the gender neutral terms when discussing spouses.

The provision regarding parental support was in the news last year when a BC woman sued her adult children for support.