Love, marriage and the law
By Cynthia Lee
Since same-sex marriage was first legalized in Canada in 2003, more than one-third of the approximately 15,000 same-sex marriages that have taken place here have involved couples from other countries.
But early this year, a surprising turn in federal policy emerged in a document filed in a case launched by a lesbian couple seeking a divorce in which the federal government maintained that the marriage, which had been performed here in Canada, was invalid.
The Reporter sat down with Robert Leckey, William Dawson Scholar in the Faculty of Law, to discuss same-sex marriage, polygamy and family law in Canada.
What does marriage have to do with love?
I am teaching a new course about family property – it is all about the consequences that follow family relations. It all depends on our sense of what normal is. Laws presume some sense of how married people normally act towards one another, and then there is always some exception to the rule. In law, we are often uncomfortable talking about love or morality; we prefer to talk about rights, but it is deeply moral – the determination of what people are required to share and how we expect them to act.
Are we free to marry whomever we chose?
Yes and no. We had a reference judgment this fall that said you can’t be married to multiple people. So on polygamy, the judge based himself on the idea of harm. Loving two people at once and going through two ceremonies is harmful, to society, each other and children. The judge thought it was harmful, basing his decision in part on sister wives’ competition for love and attention. This judgment tells us polygamy is still a crime – you cannot purport to be married to two people or go through a ceremony with more than one person.
You can live with more than one person, but it is the idea of holding it out as a marriage that runs up against the criminal law. Lots of people would say that is a weird place to draw the line. The judge’s response is that it’s only when you went through a ceremony that you begin to threaten the institution of monogamous marriage. Our criminal law validly makes it a crime to be in a polygamous relationship.
What about non-romantic relationships?
The whole focus on marriage I would challenge, or I would ask why we move from love to marriage at all? Because there are people who love people deeply and share their lives with them and it isn’t a marriage-type of love. Siblings who live together, long-term roomies, parents and children who share a home for decades: those are the relationships we have the hardest time seeing. And the whole focus on marriage – straight or gay – or even how we treat unmarried romantic couples: sex (or our assumption about sex) is common to all that. It’s interesting how difficult it is for people to talk about the non-sexual relationships that matter to people.
Why is that?
Maybe it’s because marriage is so terrifically powerful in society. Much of family law is based around marriage in our society. Some things get treated like marriage and others not. We have difficulty thinking through things in a way that aren’t marriage-like. So many families don’t duplicate the nuclear norm. But marriage, or something that looks like it, is still our starting point for what a family is.
What are the legal ramifications for these types of relationships?
In the U.K., a pair of sisters living together sought the same tax treatment – the right to pass property without inheritance tax – as enjoyed by married spouses and formalized same-sex couples. The sisters lost, and some people perceived it as a gay victory, confirming that gay couples are more like marriage than sisters are. I find that an unfortunate angle on it. Why do we have to ask whether two sisters living together are more or less valuable than a gay couple? The better question is what would meet their expectations and circumstances.
Tell us about the recent controversy surrounding a same-sex marriage here in Canada?
The federal government was defending its Divorce Act, which requires you to reside in a province for a year before filing for divorce. Two lesbians who had gotten married in Canada filed for divorce and wanted to avoid the residency requirement. The federal government replied in legal proceedings that they didn’t need a divorce, as their made-in-Canada wedding wasn’t even valid here (The couple knew already it wasn’t valid where they resided.). The shock was that thousands of foreign couples have understood themselves as married … at least in Canada, and then also in the other countries that recognize same-sex marriage.
What was the legal basis for this?
The position had some basis in technical legal rules. The idea was that a marriage is only valid if it could have been done where the parties are domiciled. But it was peculiar and disturbing to see the Government of Canada deploying those rules to undermine Canadian marriage law.
What were the implications?
Thousands of foreign couples have married in Canada, and many of them rely on their Canadian marriage to determine their status, for both symbolic and material purposes. But suddenly, the government’s view was that they weren’t married at all. Why would a Canadian government say we don’t want to recognize a marriage performed here? The implications were potentially enormous – think of the Canadians who have used their Canadian marriage to a foreign same-sex partner as the basis for sponsoring that person for immigration.
What was the reaction from the government?
The federal government took notice of the media coverage. Minister of Justice Rob Nicholson made a couple of statements. He said he would consider “options” to make sure marriages performed in Canada can be dissolved in Canada and later he said he would take steps to guarantee the validity of marriages done here.
I was very pleased to see Ottawa recognize that it had mishandled this issue and announce a willingness to take steps. But with law reform, even when the will is there, the devil can be in the details. So we need to make sure that the eventual government action addresses this issue in a meaningful and final way.
What are your hopes for same sex marriage?
People critical of the push for same-sex marriage claimed that recognizing same-sex marriage would increase the relative disadvantage of people not in couples or marriage-like relationships. There was worry too that it would detract from thoughtful consideration of the ways in which law fails to deal with other types of relationships and families. My hope is that we see the recognition of same-sex marriage in Canada not as the end of the road, and a sign to stop all further thought and reflection, but as one step on a process in which we’re reminded that laws and institutions exist, not for their own sake, but to serve the humans who use them.