An article published this morning, January 12, 2012, in the Globe & Mail, Canada's leading daily newspaper, reports that a federal Department of Justice lawyer has argued that a divorce petition filed by a same-sex couple married in Toronto in 2005 who were not then and are not now Canadian residents should be dismissed for two reasons: (1) there is a one-year residency requirement for divorce (an uncontroversial point, which the petitioners were evidently trying to test by filing this action) and (2), the marriage was not valid when performed because the two women, residents of Florida and the U.K., did not live in jurisdictions where they could have married.
According to the article, DOJ lawyer Sean Gaudet stated: "In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domiciles — Florida and the United Kingdom. As a result, their marriage is not legally valid under Canadian law."
This position is a surprise to everybody, I think. When Canadian courts opened up marriage to same-sex couples in several parts of the country in 2004, the word went out quickly that there was no residency requirement or other barrier to same-sex couples from other countries coming to Canada to marry without establishing Canadian residency. Neither was anything said about this requirement in 2005 when the Canadian Parliament approved a bill essentially codifying the court decisions, after getting a Canadian Supreme Court advisory opinion that such legislation did not violate the nation's governing constitutional documents (which reference marriage without defining it, and generally reserve to the individual provinces the function of performing marriages).
Canadian same-sex marriages have been recognized in several U.S. states, most notably in 2008 when a lesbian couple from Monroe County who married in Canada won a ruling from the NY Appellate Division, 4th Dept., that their marriage would be recognized in New York for purposes of employee benefits eligibility at a public community college. There has been a general belief that these marriages are valid.
To suddenly be told by the Canadian government that they are not valid, at least under Canadian law, is a very disruptive and destructive development, if it is upheld. Fortunately, there is no need for the court to go there if it wants to dismiss the divorce petition, since the lack of Canadian residency by either of the parties to the same-sex marriage would be sufficient grounds to do so, unless the court is minded to find some sort of defect with the residency requirement. In that case, of course, it would have to confront this other argument. The article reporting on this development says nothing about any specific Canadian statute upon which Mr. Gaudet is relying.
According to a blog report, Prime Minister Stephen Harper was questioned about this earlier today and professed ignorance about what was going on. So this may be a case of a trial lawyer taking a position for litigation purposes that was not "cleared" for political sensitivity at higher levels, and may yet be disavowed by the DOJ and Harper. (A similar incident happened early in the Obama Administration, when a US DOJ trial lawyer filed a brief with some outrageous homophobic arguments in an attempt to sustain the Defense of Marriage Act, to the consternation of the administration at the subsequent political blow-up. Ultimately, of course, the Obama Administration announced in February 2011 that it had concluded Section 3 of DOMA was unconstitutional, and it has filed briefs making that argument in several on-going court cases.)