A while ago, a same-sex couple who don’t live in Ontario tried to file for divorce and were blocked by the lawyers for the federal government, leading to questioning of the legitimacy of same-sex marriages solemnized in Ontario for out-of-province couples.
Under the Divorce Act,* only residents who have lived in a Canadian province for at least one year are eligible to apply for a divorce.
After the story was published by the Globe and Mail, public outrage ensued. In a matter of hours, the Minister of Justice announced that all marriages solemnized in Canada are legal, even for non-residents, and that changes would be introduced to address the divorce issue.
On Friday, February 17, 2012, Bill C-32, the Civil Marriage for Non-Residents Act, was introduced in Parliament by the Minister of Justice.
The bill, as read on February 23, 2012, is relatively short. The first part of the bill affirms that marriages performed in Canada are valid even if the spouses did not have the capacity to become married according to the laws where they live.
The second part is more interesting. Non-residents may apply for a divorce if they cannot obtain a divorce in their home jurisdiction. However, the application may be made only with both spouses’ consent or with a court order that the other spouse is unreasonably withholding his or her consent.
Further, spousal support is not available for divorces granted under the provisions above. Also, unlike regular divorces, which take 31 days to take effect, the same-sex divorces contemplated under this bill would become effective on the day the judgment is rendered.
In short, the federal government appears to be carving out special provisions for same-sex couples married in Canada who are otherwise unable to obtain divorce in Canada or their home jurisdiction.
The bill is still at its introduction stage. Further changes are likely. We at PSWLaw will be keeping an eye out for our readers.
*R.S.C. 1985 c. 3 (2nd Supp)
Publication Ban in Williams’s Divorce Is Set Aside
The divorce involving the notorious convicted serial killer Russell Williams has taken another detour in the Court of Appeal.*
Williams’s wife, identified only as M.E.H., obtained a publication ban and a sealing order by motion from the Superior Court of Justice on April 12, 2011. Various media outlets then intervened and appealed the publication ban.+
On January 24, 2012, the Ontario Court of Appeal set aside the challenged provisions under the publication ban, unless the ban is further ordered by the court within 14 days.
In its reasoning, the Court of Appeal found that the motion judge correctly identified the legal principles relating to publication bans and sealing orders. However, the evidence at bar could not support that the order was necessary to prevent a serious risk to the proper administration of justice. Absent that finding, said the Court of Appeal, “the orders could not have been made under the controlling jurisprudence.”
Under the jurisprudence, a publication ban should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.^
The Court of Appeal acknowledged the wife’s right to go to court without fear of harm. “Access to the court should not come at the cost of a substantial risk of serious debilitating emotion or physical harm to the party seeking access,” said the Court of Appeal.
However, in the Court of Appeal’s opinion, the evidence provided by the wife wasn’t enough to justify a sealing order. In particular, the Court of Appeal could not find evidence that the media’s access to items covered by the publication ban would in any way negatively affect the wife’s ability to fully participate in the proceeding. In other words, the dangers of harm claimed by the wife had not been substantiated.
*2012 ONCA 0035
+See my previous post, “On Publication Bans and Sealing Orders in Family Law,” August 17, 2011
^R. v. Mentuck, 2001 SCC 76, at para. 32
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