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CBA fires off warning on C-32 delay
By Cristin Schmitz

June 14 2013 issue

Foot-dragging on a government bill that would enable foreign-domiciled same-sex spouses who married in Canada to divorce here is denying “access to justice” to gays and lesbians, says the Canadian Bar Association (CBA).

The Civil Marriage of Non-residents Act (Bill C-32) — hastily introduced by the majority Conservatives in February 2012 to ward off a court challenge and a revival of the divisive same-sex marriage debate — was still stuck at first reading almost 16 months later. At press time, the government had not scheduled second reading debate for the proposed law, which would enable foreign couples who married here to seek a Canadian divorce when they can’t divorce in their home country because their marriages aren’t recognized there.

With the Commons poised to adjourn for the summer amid rumours that the Harper government will prorogue in an effort to begin with a “clean slate” in the fall, Bill C-32 could die unless the government and opposition strike a last-minute deal allowing passage.

The delays are unfair to gays and lesbians stuck in legal limbo, said Kelly Jordan, past chair of the CBA’s national family law section.

“We are concerned about the hold-up — we’d like to see this matter move forward,” said Jordan, of Toronto’s Jordan Battista. “We encourage the government to provide a solution for couples who have found themselves in this situation. It is an access to justice issue because these individuals and couples are otherwise without a remedy.”

Meanwhile, the L. v. M. test case that was the catalyst for Bill C-32 was automatically revived in Ontario Superior Court on June 1. The anonymous lesbian couple who married in Toronto in 2005 agreed to temporarily stay their joint divorce petition after the government pledged last year to introduce Divorce Act amendments to close the legislative “gap” that leaves foreign-domiciled same-sex couples unable to get a divorce in Canada unless at least one of them resides here for a year. The pair reside separately in Britain and Florida, where they can’t divorce because neither jurisdiction recognizes their marriage. They urge that the one-year residency requirement imposes undue hardship and violates their ss. 7 and 15 Charter rights to liberty and equality.

“We made an agreement with the federal government that the proceeding would be stayed until June 1 to allow the legislation [time to] proceed,” their lawyer, Martha McCarthy of Toronto’s Martha McCarthy and Co., told The Lawyers Weekly. “My clients are going to have to make a decision about whether to return to court to argue the matter.”

McCarthy said she has asked Ottawa about the delay, “But I have not received any explanation about the hold-up. I’d like to see the legislation pass. I don’t wish to criticize anybody if they’re diligently working on an outcome that will assist my clients, and then on the other hand, I don’t think my clients should be waiting around a lot longer,” she said. “We’ve been really patient, and the matter needs to get resolved.”

Justice Minister Rob Nicholson said the NDP opposition has steadfastly refused government’s repeated requests for unanimous consent to fast-track the bill through all stages.

“When our government tabled this legislation, we made it clear at the time that we had no intention of reopening the same-sex marriage debate, but we would fix the gap left in the law resulting from changes made by the Liberals in 2005,” Nicholson told The Lawyers Weekly in an e-mailed statement conveyed by his press secretary.

“We acted in good faith and put forward a speedy fix that would eliminate the gap in the law,” he added. “This legislation is a straightforward answer to a straightforward problem. There is no reason why it should not receive unanimous consent from the NDP.”

The NDP wants the bill to go to committee so it can hear witnesses and propose amendments it believes would improve Bill C-32, such as giving Canadian courts jurisdiction to make support or custody orders for non-resident divorcing spouses whose home jurisdictions refuse to do so because their marriages are deemed invalid.

“I am disappointed that the government has failed to bring C-32 forward but I have no idea why,” NDP MP Randall Garrison said. “It is a government bill so they have complete control of the timing. The NDP has never threatened to vote against, or delay, C-32, though we believe it could be improved.”

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