Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 41 - Evidence - June 20, 2013
OTTAWA, Thursday, June 20, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to
which was referred Bill C-32, An Act to amend the Civil Marriage Act, met
this day at 10:39 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
The Chair: Good morning and welcome, colleagues, invited guests
and members of the public who are following today's proceedings of the
Standing Senate Committee on Legal and Constitutional Affairs. Today we are
here to discuss Bill C-32, An Act to amend the Civil Marriage Act. This bill
proposes to amend the Civil Marriage Act to make all marriages of
non-resident couples that were performed in Canada valid under Canadian law
and to allow Canadian courts to grant divorces to these couples if they
cannot get a divorce where they live.
As a reminder to those watching these committee hearings, they are open
to the public and also available via webcast on the parl.gc.ca website. You
can find more information on the schedule of witnesses on the website under
We have invited officials from Justice Canada, who are prepared to answer
any questions that members may have on Bill C-32. Our first witness is Ms.
Lisa Hitch, Senior Counsel, Family, Children and Youth Section, Justice
Ms. Hitch, I understand you have an opening statement; please proceed.
Lisa Hitch, Senior Counsel, Family, Children and Youth Section,
Justice Canada: Thank you. My apologies to all members for the delay
I am pleased to be here today concerning Bill C-32, An Act to amend the
Civil Marriage Act. This bill would make marriages of non-residents
performed in Canada legally valid for the purposes of Canadian law where
they would have been valid had both spouses been Canadian residents. Also,
it would give non-resident spouses a process to dissolve those Canadian
marriages. The first part of the bill would provide legal validity to
Canadian marriages of certain non- residents. I will track briefly why that
The private international law rules that determine when a foreign
marriage is legally valid or, in this case, the marriage of foreigners have
developed over hundreds of years. These private international law rules
provide that in order to be valid, a marriage must meet the requirements of
form in the law of the place where the marriage was performed. Formal
requirements include things such as licensing and registration. The marriage
also must meet the law of the country where the two people live or, more
technically, where they are domiciled. That is with regard to what is called
"legal capacity" or who can legally marry whom. In other words,
non-residents who come to Canada to marry remain subject to the laws of
their own country of residence with regard to their capacity to marry.
For example, if those laws do not recognize same-sex marriage or have
limitations on opposite-sex marriage, as in some countries, then the
marriage is invalid in law not only in their country of residence but also
in Canada and, I would say, in most countries of world. This applies as well
to opposite-sex couples, although there are fewer instances where legal
capacity is at issue. One example for opposite-sex couples could be that
some countries bar marriage between persons of different faiths. If they
were to come to Canada to marry, their marriage could be found to be invalid
in both countries.
While the bill cannot change the laws of other countries, it would make
the marriages of non-residents performed in Canada valid for the purposes of
Canadian law. The bill also takes the opportunity to remove any legal doubts
about the validity of marriages where one person is a Canadian resident and
may have capacity but the other is not. These validations would operate not
only for marriages performed in the future after the bill comes into force,
if it were to do so, but also for those performed in the past, as long as
the marriage would have been valid for two Canadian residents.
Inevitably, given the passage of time, there may be some situations where
couples who married in Canada have since ended their relationship before the
coming into force of this bill, were it to do so. In order to avoid creating
a fresh unfairness, Bill C-32 also specifies that if prior to the coming
into force of this act the couple obtained a court order in Canada or in
another country that either declared their marriage null and void or
provided them with a divorce, which has happened in a few instances in the
United States, then the marriage is dissolved as of the time of that initial
order, and the couple will not have to seek a new order.
The second part of the bill would create a new process to allow
non-resident couples to dissolve their Canadian marriage following
relationship breakdown. The new divorce process is structured within the
Civil Marriage Act rather than as an amendment to the Divorce Act. The
reason for this is that there are different legal situations between
resident couples and non-resident couples. It was decided that it would be
more complicated to try to carve out those aspects of the Divorce Act that
would and would not apply than it would be to put the code entirely in one
place, particularly for non-residents who are not familiar with Canadian law
and are looking to access that code.
Internationally, most countries, including Canada, require an individual
to live in their country for a minimum period of time, usually at least one
year, before they can apply for a divorce and any other related order. At
that point, they have enough attachment to the country for the courts to
properly take jurisdiction. The bill will ensure that the disputes are heard
by the courts best placed to deal with both the evidence and the outcome in
terms of enforcing that order. This is usually the court of the country
where everything is located — the spouses, the children, the property, the
pensions and anything that could be a matter of dispute.
The residency rules also provide a greater assurance that any court order
will be enforceable. For example, in a country that does not recognize the
Canadian marriage, it is very unlikely that it would recognize the Canadian
divorce, as there is no basis on which to do so legally, and therefore the
order of divorce would not be enforceable.
Thirdly, the residency requirements are intended to prevent people from
choosing to take their dispute to a country where they do not live simply
because they think they will get a better outcome. Of course, there are two
sides to every divorce, and it could easily be in favour of one spouse over
the other to do what is called "forum shopping."
Although these residency requirements make sense, we believe, for most
couples clearly a hardship is caused for non-residents where they are unable
to access divorce in the country where they live. Given that the reason for
not accessing divorce is the Canadian marriage, the bill seeks to address
this unfairness by providing an access to the courts for the purposes of
dissolving the marriage only.
The new divorce process for non-resident couples has three unique
aspects. Non-resident couples are entitled to a divorce order, but not to
corollary relief. There are concerns about whether that order, after we
require foreign spouses to pay Canadian lawyers, would not be enforceable in
any event, but they also have to agree with each other to apply, except in
three specific situations. That also is different from the current Divorce
Act. That is because the court in Canada has jurisdiction over the entire
dispute between the couples, so it is more logical that one could apply
without the consent of the other. In the other instance of foreign
non-resident couples, the intent is to ensure, as much as possible, that the
agreement pushes the couple to agree with each other on any consequences of
breakdown prior to applying for the divorce.
While it may be difficult for some non-resident couples to resolve their
disputes at home, Canadian law cannot provide new rights and obligations for
non-resident couples that do not exist in the law of the country where they
live. Non-resident couples must resolve their disputes in their own country,
so that is one reason for requiring consent. However, there may be
situations where it is not possible for one of the spouses to obtain the
consent of the other. In such circumstances, to address any possible
unfairness, Bill C-32 would allow an application to proceed with either a
Canadian order, which is the amendment proposed in the House of Commons, or
a foreign court order in three circumstances.
The three circumstances were selected because it is not possible for
Canadian law to give foreign couples the ability to go to their own courts
to apply for an order. These were selected as the three most likely
circumstances in which a foreign resident might already have a court order
that could be used for a Canadian court to rely on. Now, of course, the
Canadian court is also given the ability to make those orders.
The couple will only be able to apply after they have lived separate and
apart for at least one year. There are two other grounds in the Divorce Act:
adultery and physical or mental cruelty. These would not be available in
Canada for practical reasons because those issues have a lot of evidence and
issues of proof, which would require lengthy court hearings in Canada, while
the final result for the non-resident couple would be the same, which is the
dissolution of the marriage.
Bill C-32 creates a new divorce process for non-residents that is a
specific exception to the general approach worldwide that limits divorce to
In this regard, Canada is breaking new ground with this legislation, and
the intent, of course, is to alleviate hardship. Although Canada cannot
affect the law of other nations, the bill would shape our own laws in a way
that would treat all couples with dignity and respect for their choices and
for expressing their commitment to one another in marriage.
I would be pleased to answer any questions that members of the committee
The Chair: Thank you, Ms. Hitch.
Senator Joyal: My first question would be in relation to the
decision of the Ontario court that opened the way for this bill. Do you have
the decision with you?
Ms. Hitch: My apologies, but are you speaking of the decision in
Hincks, which was not associated with this bill?
Senator Joyal: Yes, exactly.
Ms. Hitch: L v. M is the case associated with this bill,
and it has not yet been heard by the court.
Senator Joyal: I will stand that case to ensure that there is no
My first question would be, then, in relation to the couple that goes,
for instance, to Las Vegas. The residency requirement, as you know, is very
limited. You know the case of that young couple who went there for a
weekend, decided to marry and then, when they came back to Canada, realized
they were married, with all of the consequences. Will this bill help them to
put an end to their marriage, even though, in the country of origin, there
was no residency requirement?
Ms. Hitch: Not if they are Canadian residents. From the example
you are giving me, I assume that you are speaking of a couple where at least
one of them is a Canadian resident.
Senator Joyal: Yes, and the other would be an American citizen.
Ms. Hitch: The bill would still require any Canadian resident to
apply for divorce under Canadian law.
Senator Joyal: They would then compel them to go through the
normal route of any Canadian. What if both of them were American?
Ms. Hitch: It would depend on the jurisdiction in the United
States because, as you know, there has been a fair amount of change in law
in the United States.
Senator Joyal: In the case I submitted to you, where the residency
requirement is limited to a minimum, what would the situation be of that
couple in Canada?
Ms. Hitch: Are you speaking of the Las Vegas divorce laws?
Senator Joyal: Yes.
Ms. Hitch: Those laws are renowned throughout the world, and they
are a good example of why the residency requirement is accepted in most of
the world. There are considerable concerns about the fact that there is no
residency requirement prior to a divorce order in Las Vegas, and because of
that, there are concerns about whether the court properly has jurisdiction
to issue that divorce order. A large number of them have been challenged in
the courts where one or other of the spouses lives.
Senator Joyal: What about the case of citizens married in a
jurisdiction where the divorce procedure is very complex? I have a case in
mind, whereby the husband needs to agree for the wife to seek divorce. What
would the case of that person be in coming to Canada and seeking a divorce?
Ms. Hitch: If this is a non-resident couple, both of whom live
outside of Canada, and they were married in Canada —
Senator Joyal: No, they would have been married outside Canada.
Ms. Hitch: If they are married outside of Canada and do not live
in Canada, they would have no access to the act, even with the amendments
that are proposed.
Senator Joyal: They could not come to Canada to do what I call
divorce shopping, for instance?
Ms. Hitch: No. The idea of the bill is to try to maintain Canada's
position, which, as we both mentioned, is also the regular position
worldwide; that is to require a connection to the country before the courts
have jurisdiction to issue a divorce. In the Divorce Act, that is one year's
residence in a particular jurisdiction in Canada. In the case you are
mentioning, they would not have access to the proposed changes either
because those require both members of the couple to live in a jurisdiction
where they are unable to divorce because of the capacity issue.
Senator Joyal: In that case, the capacity issue is essentially
related to the residency requirement.
Ms. Hitch: The capacity issue in that case is more that their
marriage is not recognized as valid in their country of residence. Where the
marriage is recognized as valid in the country of residence and their access
to divorce is just more onerous, they would still be required to go through
the courts of their country of residence.
Senator Joyal: Would that bill apply to persons who have been
united under a civil partnership act whereby the couple registered, in the
formal way, in their country of origin, came to Canada, were in Canada for a
while, qualified under the residency requirements and sought the dissolution
of that civil partnership? Would it apply in that circumstance?
Ms. Hitch: The bill does not apply to circumstances where someone
has registered their relationship or has married outside of Canada. It only
applies to people who have married in Canada.
Senator Joyal: In any situation whereby a Canadian entered into a
civil partnership outside Canada, that person could not seek dissolution of
that civil partnership in Canada; they would have to go back to the country
where they had their union formalized, according to the law where they were
living at that time?
Ms. Hitch: As you know, the Hincks case is under appeal, so
I cannot really comment on the facts of that case.
Senator Joyal: I asked the question without qualifying the
The Chair: We will have to move on. Senator Plett?
Senator Plett: I am assuming this legislation is largely to help
same-sex couples, but it would also apply to all couples.
Ms. Hitch: That is correct.
Senator Plett: Would you have any statistics on how many people of
the opposite sex would be affected by this law, as well as how many same-sex
couples married in Canada would have been affected, one way or the other, by
the validity of this issue?
Ms. Hitch: Unfortunately, we have neither disaggregated data on
same-sex marriages in Canada nor data that breaks down how many of those
couples were non-resident versus how many were resident. Similarly, we do
not have any data on residency with regard to opposite-sex couples. Numbers
have been thrown around. We are not quite sure where they came from, but
there was a suggestion that it was perhaps 5,000 non-resident same-sex
couples. I would hazard a guess and say that there would be very few
opposite-sex non-resident couples, again because most opposite- sex couples
have the legal capacity in their country of residence. Although I am sure
Canada would be a wonderful destination for marriage tourism, I think there
is still much more attraction to some of the beaches.
Senator Plett: Why do you think it was necessary to create a
separate procedure rather than simply amending the Divorce Act with respect
to non-resident couples?
Ms. Hitch: As I mentioned, consideration was given to amending the
Divorce Act to include non-resident couples. The concern was that
non-resident couples are coming fresh to Canadian law, and it might be more
difficult for them to find the code that they would apply under if it were
stuck in the middle of the Divorce Act, with a long list of which provisions
applied and which provisions did not apply. The idea is to increase access
for non-resident couples by putting the entire scheme all together in the
Civil Marriage Act and creating a part 2.
Senator Baker: Just for clarity, the Hincks case that you
referenced was a case where, under the Civil Partnership Act of the U.K.,
they were united and where a decision was made, in a court in Canada, to
dissolve the union. Am I correct?
Ms. Hitch: As I mentioned — and I do not believe I brought up the
Hincks case first — it is under appeal. However, yes, that is the effect
of the trial court decision.
Senator Baker: As for the case that presented itself to cause this
legislation to be brought in, what is the name of that case?
Ms. Hitch: It is called L v. M.
Senator Baker: Could you tell us why it is called L. v. M.,
why the names are not in the —
Ms. Hitch: My understanding is that the couple was not
particularly interested in having their names brought forward. There was a
suggestion, at least in one case, that the family was not aware.
Senator Baker: The provision of the open court principle in Canada
applies to family court matters and divorce matters. The rules —
Senator Joyal: Can I interject, with the support of my colleague?
There is a fairness case in Montreal called the Lola case, where the
two persons involved were not identified. It is a much "mediatized" case.
Ms. Hitch: Interestingly enough, that one is called M v. L.
Senator Baker: I would refer you to a case down East called
Jacques v. Jacques, Nova Scotia Court of Appeal, from last year that
said the open court principle applied, as it did in Dagenais before
the Supreme Court of Canada, Thompson Newspapers Co., Globe and
Mail, Toronto Star and so on, and therefore something held in
camera was not applicable to divorce proceedings. I guess that is why it is
not reported either in Quicklaw or Carswell - Westlaw. I could not find that
Ms. Hitch: The L v. M case has not yet been heard. There
have been a number of preliminary motions, including the one to suppress the
names. It was delayed until June 1.
Senator Baker: That is what I thought. So it has not been heard?
Ms. Hitch: No.
Senator Joyal: The Lola case has been heard.
Senator Baker: Yes. You are absolutely right, counsellor.
Let me go back. My main question was although we have the open court
principle that applies to divorce proceedings, we also have the rules of
court. Civil proceedings, civil rules of court, apply to family proceedings
in the provinces. Under certain conditions a judge, if it is justified,
could have the proceeding in camera or could seal all documents associated
with the proceeding, with the judge's discretion to do so under certain very
strict, limited conditions.
Is there anything in this particular bill that may come into conflict
with the rules of court? For example, the wording here that says the court
must, on request, issue to any person proof of a dissolution. As you see it,
when the rules of court permit a judge to enter into camera in a proceeding
for some reason, in this particular case you are saying that a court must
disclose what took place. Do you see any conflict there?
Ms. Hitch: The provision that you are citing is —
Senator Baker: Or any other provision?
Ms. Hitch: That provision is also part of the Divorce Act. This
bill would propose, similar to the Divorce Act, that the rules committees of
the various provinces provide and prepare rules for administering these
amendments were they to pass through the Senate and receive Royal Assent.
Therefore, I believe that the rules committees would work very hard to
structure their rules so that there was no conflict. If there is, the
Governor-in-Council has reserved regulatory authority to ensure uniformity,
Senator Baker: Good.
Senator Batters: Prior to being in the Senate I practised law and
did a lot of family law in my career. I want a few clarification tools so
people dealing with these things will have the answers on record.
I used to explain this procedure to people when they were coming to me to
get a divorce. I explained the different that grounds they could use; that
is, on the basis of physical or mental cruelty, or adultery. If they did not
want to get into a factual dispute, the one almost everyone would use was
"living separate and apart for a year." From what you said the only ground
available for this, since it is a paper process, is "living separate and
apart for a year." Is that correct?
Ms. Hitch: That is correct. On that point, there are statistics
showing that almost 95 per cent of divorces between 1998 and 2008 were based
on the one-year separation period. Although the government is not intending
to say that adultery and mental and physical cruelty may not exist between
these non-resident couples, the idea of the process is that unlike the
process for the resident couples, where the court is seized with all of the
disputes arising from relationship breakdown, the only jurisdiction that the
Canadian courts would have with regard to non-residents is to dissolve the
marriage. There is no particular legal purpose to allow those additional two
grounds in this case.
Senator Batters: Thank you for explaining that.
You talked about this earlier, when my colleague Senator Plett asked you
about it. Could you delve further into examples of opposite-sex marriages
that might not be valid and that this particular law would affect?
Ms. Hitch: This gets into the fun part where I am told that I get
boring with detail. My apologies, and if I do, cut me off.
As I mentioned, there are three major legal systems in the world: common
law, civil law and religious law. Some of the countries that use a religious
law system do not provide for civil marriage, so they very well have
marriage codes for each of the different faiths. Essentially, there is a
legal gap with regard to interfaith marriage. Israel is one example where it
is not possible to have an interfaith marriage performed legally in Israel,
although the state of Israel will recognize interfaith marriages performed
abroad. There are others.
Saudi Arabia has an interesting legal code with a great deal of history.
In Saudi Arabia, a woman is not permitted to marry a man from outside of the
Co-operative Council for the Arab States of the Gulf, even where he is also
Muslim, unless she has special dispensation from the king. There are other
issues dealing with consanguinity prohibitions. For example, in China a
relative is barred from marrying a relative by blood within the sixth
degree. We stick more to the first and second degree. They cannot marry a
relative by marriage within the fifth degree. There are other states where
people still cannot marry a former in-law. That is not the case in Canada
anymore, and first cousin marriages are still barred in a number of
countries where it is not in Canada.
Senator Jaffer: I want to clarify that L v. M, from my
understanding, has not been heard because of what is in front of us today.
There are some negotiations going on; is that correct?
Ms. Hitch: A stay was granted until either the bill was passed or
defeated, or June 1 of this year, whichever came first, so that stay has
Senator Jaffer: My one concern — and I do not think you touched on
it — is in proposed section 9. Under the Divorce Act you have 31 days to
appeal. If I understand this correctly, proposed section 9 states that the
divorce takes effect on the day on which the judgment granting the divorce
is rendered. Does that mean there is no appeal from the process?
Ms. Hitch: That is correct. No appeal is provided for. In the
Divorce Act the appeal is provided because the court is seized with all
matters arising from the dispute, whereas in this case of non-residents, the
court only has the jurisdiction to issue the dissolution or not. There was
no appeal right required from that, particularly because the bill is
structured so that in most instances the couple will apply jointly or on
Senator Jaffer: This leads to a bigger concern for me, which is no
access. You spoke about that, namely proposed section 8, "No corollary
relief." I believe this will be the next thing that will have to come before
us in the future. If the person is not recognized to be married in their
country and they come here to get relief, what happens to custody or to
child maintenance? Could you explain why you did not include that? I do
understand there are issues of connection, but could you give me your
thinking on that?
Ms. Hitch: Certainly.
As you have mentioned, the first issue is jurisdiction, because if the
couple's entire life — all their assets, their children and their house — is
in another country, then there is a considerable concern that the Canadian
courts would not properly have jurisdiction over any of those aspects. As
was raised earlier with regard to Las Vegas, if Canadian courts took
jurisdiction over those aspects and provided an order of corollary relief,
it would most likely not be enforceable in the home jurisdiction and could
The other concern is that if a couple comes to Canada to marry, and then
if the couple is Canadian and Canadian residents, they understand the legal
implications in terms of it coming with a package of legal obligations and
benefits under Canadian law. The problem is that Canadian legislatures
cannot reach back to the home country and say, "Therefore, those legal
obligations will apply under your law of residence."
In allowing couples to come to Canada and access corollary relief, there
is also a concern that Canada would be acting extraterritorially to impose
obligations and benefits that exist under Canadian law, under the law of
Senator Jaffer: Obviously this has to be done, but my concern is
with regard to children and the rights of children. As you know, because of
the field you are involved in, there is more and more need to look at
assessment under the Convention on the Rights of the Child and the
assessment of every bill looking at the rights of the child. Did you look at
that with the convention in mind when you were drafting this bill?
Ms. Hitch: We consider the convention in everything we do, yes.
The problem is that if people want to protect the rights of their children,
the best way that Canadian law can protect those people is if they choose to
live in Canada. There is a problem with Canada reaching out to protect
children who are under the jurisdiction of a foreign state.
Senator Seth: That was really interesting to know. My question is
a little bit the same as Senator Jaffer. There is just a little difference.
I would like to know what happens when a non-resident comes here on a
work permit, stays here for a while, gets married to a non-resident and
applies for immigration. Let us assume that after marriage they have a
child, and after a while they divorce. What happens in that circumstance?
These marriages will not, as you said, address issues such as child or
spousal support. What will happen in that case? It looks like their
intention is to stay here, and now they have divorced. What happens to this
Ms. Hitch: My apologies. If they are resident in Canada, they do
not have to be a Canadian citizen. If they are resident in Canada, they can
apply for divorce under the Divorce Act, regardless of where they were
Senator Seth: No. They come here on a work permit, a non-resident,
and get married to a non-resident.
Ms. Hitch: Yes, and then go to another country?
Senator Seth: No. They stay here.
Ms. Hitch: Then they are resident in Canada.
Senator Seth: How long do they have to be here?
Ms. Hitch: One year.
Senator Seth: Then all the rules apply?
Ms. Hitch: Yes.
Senator Seth: Thank you.
Senator Dagenais: My question is straightforward. New legislation
is being established for divorce proceedings. Are you not concerned that
people will get used to this and that we may have to deal with new divorce
proceedings since there is new legislation?
Ms. Hitch: Yes, it will take some time. If the bill is passed and
receives Royal Assent, the next step is for the provincial rules committees
to structure the process for application to the court under each province
The bill is structured so that Part 2 could be brought into force in each
province or territory as those rule committees ready the process, so couples
could apply for divorce. Of course, there will have to be, as you are
pointing out, educational materials provided as well, or at least some
entries on websites that would have links to the new process and to where to
apply under different courts in different provinces.
Senator McIntyre: Ms. Hitch, I wish to draw your attention to
proposed section 5(3) of Bill C-32 which reads as follows:
Any court order, made in Canada or elsewhere before the coming into
force of this subsection, that declares the marriage to be null and void
or that grants a divorce to the spouses dissolves the marriage, for the
purposes of Canadian law, as of the day on which the order takes effect.
In other words, we are dealing with an order dissolving marriage. Having
said this, I have before me a memo from the Canadian Bar Association dated
March 22, 2012, in which it suggests certain changes to Bill C-32. One of
the changes reads as follows:
In section 5(3), "as of the day on which the order takes effect"
should be replaced with "as of the effective day of the order."
What are your thoughts on this?
Ms. Hitch: We reviewed the Canadian Bar Association suggestions
and submission closely and took it back and discussed it with our in-house
experts. The conclusion was that the wording, although there will always be
some disagreement about whether there is a better way of expressing intent,
would come to the same net effect.
Senator McIntyre: Are you aware of any amendments to Bill C-32
raised by the House of Commons committee?
Ms. Hitch: The bill, in a very unusual process, did not proceed
through the House of Commons committee, but it was amended in the House of
Commons. The amendment, as I mentioned, is in the section that allows the
court to dispense with consent in those three specific circumstances. This
is 7(2). The original drafting of 7(2) allowed the Canadian court to rely
only on foreign court orders in those three circumstances, again because the
intention was not that the bill would provide a new access to the court in
foreign countries but that these are orders that are the most likely to
exist already in independent, separate proceedings.
Now, after the House of Commons amendment, it is also possible to go to a
Canadian court to ask for an order dispensing with consent in the same three
Senator Boisvenu: Does this bill make Canada a leader in
recognizing new rights or have other countries adopted similar legislation?
Ms. Hitch: There are very few jurisdictions that have dealt with
the concept of recognition of divorce for non- residents. As I said, most
countries that have looked at this issue have dealt more with recognition of
foreign marriages within their jurisdiction, but they will restrict
jurisdiction over divorce still to people who are residents or, in rare
cases, people who are citizens or who have a great deal of attachment to
Yes, it is extremely unusual that a jurisdiction in Canada is at least in
the forefront of countries, which is making a very small exception to that
general principle in order to deal with the unfairness that is caused to
these couples. As several authors have pointed out, though, the reliance on
these amendments, should this process go forward, would diminish over time
as other countries start to recognize same-sex marriage and divorce for
those couples becomes available in their home jurisdictions.
Senator Boisvenu: Are those countries feeling the same pressure
that we have felt in Canada to recognize those rights?
Ms. Hitch: I believe that Canada, by being in the forefront of
countries to allow same-sex marriage, ended up with a large number of people
coming to Canada seeking to demonstrate their commitment to one another.
They were looking for an avenue to marry outside of their own country, where
it was not possible.
As has been pointed out, again by several authors including the ones in
the materials here, a number of those states did enact residency
requirements for marriage, which we do not have.
Senator Boisvenu: Has this led some countries to put pressure on
Canada not to pass this bill?
Ms. Hitch: I do not believe there is any pressure at all, other
than from the couples who have come to Canada to marry and now find
themselves in a bit of legal limbo. They can apply for a nullity order in
their country of residence, which would say the marriage is not a marriage.
They do not want that. They want the marriage to have been recognized, and
therefore they want the clarification for their marital status.
Senator Joyal: In other words, in that context this bill would
target 14 countries around the world, those that have recognized civil
marriage in the way Canada has since 2005, the 14 countries today that have
already legislated on the issue of same-sex couples.
Ms. Hitch: In those countries where divorce is available, then the
couples would be expected to divorce under their own law of residence.
However, without speaking about Hincks, other countries that have
chosen to do a parallel registration system. Those countries generally tend
to convert or recognize the Canadian marriage as a registered partnership,
in which case the statute provides a mechanism for dissolution of the
relationship. It is probably more than the 14. European Union countries in
particular, because of the mobility directive, have been required to
recognize each other's family relationships, including same-sex
relationships that are either registered or marriages.
Senator Joyal: Even though there is a decision of the European
Court of Human Rights that has not recognized discrimination on the basis of
the non-recognition of same-sex marriage between the countries of the union?
Ms. Hitch: They have an interesting system where you have to
recognize it to the extent you recognize it for your own citizens.
Senator Joyal: Would you say this bill will have a greater impact
on women than men?
Ms. Hitch: That is an interesting question. I do not believe there
are any disaggregated statistics that would show how many of the
non-resident couples coming to Canada are female versus male. I do not
believe I can answer that question.
Senator Joyal: I am thinking of countries where especially divorce
is forbidden for women. In those countries I think Canada would represent
certainly an opening in terms of their future.
Ms. Hitch: Again, they would have to fit the requirements of the
scheme. They would have to have been married in Canada and be non-residents
of Canada at the time of marriage.
Senator Joyal: Someone who came from abroad and decided to marry
and seek divorce, in the context of the conditions we have outlined.
Ms. Hitch: If you were planning ahead for the best place to
divorce, you might decide where to marry. You would still have to have an
instance where you had a capacity problem so that your marriage was not
recognized as legally valid at home.
Senator Joyal: I say to my friends that the best clause of your
marriage contract is the divorce clause.
There is another element raised in the Canadian bar letter that was sent
to the department, the Minister of Justice, that the one-year residency
requirement should apply to only one spouse and not both, as they contend.
Otherwise one spouse could prevent the other spouse's application by moving
each year, which would be a way to evade the ambit of this bill. I think
this is a real situation, especially with the United States, for instance.
Ms. Hitch: It is quite possible that there might be an unusual
instance where, because of a high level of conflict between the former
spouses, one person deliberately goes out of their way to keep moving to a
state where they are unable to marry because the marriage is not recognized
by law, but it would require a fair amount of acrobatics for the person to
do that on a regular basis. It is difficult to craft law to catch your
However, that said, the bill would also deal with that in proposed
subsection 7(2), where evidence that someone has deliberately moved every
couple of months in order to prevent the divorce could be used as
unreasonably withholding consent.
Senator Joyal: In the context that civil partnership would be
recognized by Canadian courts as being equivalent to marriage, I have here
in front of me the list of countries whereby civil partnership is
recognized. As you know, it is a movement that is expanding in the world. In
my opinion, that bill would have a much wider impact in terms of covering
the status of people who could have been married under the circumstance of
Ms. Hitch: I cannot comment on Hincks because it is still
under appeal. I can say that the reason civil partnerships were not included
in the original draft of the bill is that the civil partnership regimes vary
considerably from jurisdiction to jurisdiction in terms of how close they
are to the rights and obligations of marriage. The only thing we know at
this point in time is that this problem was caused by people who came to
Canada and married in good faith. It is not about whether they married
somewhere else or whether they entered into a partnership somewhere else,
and it does not cover the partnerships that are available in four provinces
Senator Joyal: The other section of the bill, and I am looking at
proposed paragraph 7(2)(a) in particular, whereby there is the
reference to mental disability. It says, ". . . is incapable of making
decisions about his or her civil status because of a mental disability . .
." Would it not involve a medical evaluation to establish that? As you said,
in some circumstances the issue of mental and physical cruelty could be as
difficult or as easy to prove as mental disability.
Ms. Hitch: Yes. Again, the original design of the bill would have
had this as a foreign court order, so it would not have involved a hearing
before a Canadian court.
The amended bill would allow a hearing before a Canadian court and, yes,
a fair amount of significant evidence could be brought before the court on
that basis. I imagine the court would also have some concerns about
procedural fairness if they cannot hear from both spouses.
Senator Seth: I know it may not pertain to that, but I wonder what
the advantage is of having non-residence marriage in Canada, marriage and
divorce. Is it because we are too generous? If so, what we would be the
financial burden on the government or on taxpayers?
Ms. Hitch: In designing the bill, there was a concern about
limiting the impact on the Canadian taxpayer of opening access to Canadian
courts to non-residents.
As I think everyone is aware, the courts in Canada are busy enough
dealing with disputes of Canadians, and the cost of the court system is
quite onerous. It is necessary, of course, but there are always concerns
about opening that very busy court system to a non-resident who is choosing
to import their disputes for various reasons. One of the reasons that the
bill is designed this way is to keep it as an administrative or paper
process so that there would be no access to a hearing, save for the change
made in the house to proposed section 7(2). However there will not be,
according to the design of the act, very many circumstances, we hope, where
the couple will not agree to apply either jointly or on consent.
Again, the reason that we are doing that is because even if the bill gave
it to the Canadian courts, they would not have proper jurisdiction over the
disputes that are coming out of child support, child custody, property
division or any of those issues that should be settled under the laws of the
country of residence. The hope is that by encouraging most of these
applications for divorce to be on consent, that would mean the couple has
settled their affairs before they apply for the divorce.
Senator Seth: According to you, there will be no cost or a minimal
Ms. Hitch: The hope is to keep the cost minimal by keeping matters
away from court hearings as much as possible.
Senator Baker: The judge is federally paid, but of course it is in
a provincial court. As you mentioned, the courts and the provinces will now
readjust their rules to take into account the new legislation when it is
passed. How consistent do you find the rules to be in each province relating
to these matters?
Ms. Hitch: There are provincial variations, but on the whole it
would be fair to say there is consistency across Canada with regard to the
Senator Baker: There are differences in the rules?
Ms. Hitch: There are differences from one court to another, yes.
Senator Baker: Getting back to the Hincks case — not the
subject matter of it. The reason I bring it up is because we have our
Divorce Act in Canada. The proceedings take place in superior court — family
court in the provinces — but it also triggers provincial law. For example,
in this province, it would be the Family Act; in other provinces, it is
under different names. In the Hincks case, there are two pieces of
legislation under review: the Divorce Act, as it applies; and the Family
Act, as it applies. The position put forward by the applicant was in the
alternative that the matter would be decided under the Family Act. How do
you see this affecting provincial legislation, beyond the Hincks
Ms. Hitch: I think the short answer would be that the intention of
the bill is that it will not affect provincial jurisdiction or provincial
family law. As you know, in Canada, because of the Constitution, there is a
division of jurisdiction or shared jurisdiction in the area of family law.
Aspects such as the corollary relief from divorce fall within the federal
sphere, but other aspects, such as property division, fall within the
provincial sphere, as well as separation and any of the initial orders. Of
course, as was raised in the Hincks case, there is the issue of
common-law couples when they split.
The issue before the court in Hincks was that the Ontario Family
Law Act does not recognize foreign registered partners in the same way that
the Divorce Act does not recognize anything which is short of marriage; it
also has the one-year residency requirement. There are several issues before
the court in that case.
Senator Baker: In the case of provincial jurisdiction and
provincial rules and laws applying, there is some consistency across the
country in decisions of the Supreme Court of Canada that help unify these
matters to some degree.
Ms. Hitch: Yes, that is true. There is also the Divorce Act
itself, and the guidelines which are federal, so it is applied uniformly.
Senator Baker: Yes.
Senator Plett: You may or may not be able to provide the following
statistics. How many couples have asked for a divorce and not been able to
get the divorce because of the laws, not how many got married, but how many
asked for the divorce? The law will be retroactive. Are you going to notify
everyone who has applied for a divorce and has not been able to get it
because of the absence of this law?
You talked about annulment. I am assuming that some of these couples,
since the jurisdictions that they live in have never recognized their
marriage, may have gone on in life and gotten remarried without a divorce.
Are there couples who would rather not be notified that they are now able to
get a divorce?
Ms. Hitch: There were concerns about the passage of time since the
first opening of access to civil marriage in Canada to same-sex couples,
because of situations such as that. There are bound to be some same-sex
couples who have split in that time and have gone on to establish new
relationships. Our hope is that most of them got good legal advice.
We do not have a database of the people who applied for divorces, because
they would not have been able to apply, but they will have made inquiries of
the court, provincial governments or, in some instances, we had a number of
letters to the Minister of Justice asking about the process.
Again, I think it comes down to we will have to find some way to notify
those who are affected by the change in law if and when the bill goes
Senator Plett: If and when the bill goes through, you are planning
on proactively trying to let these people know that they could now get a
divorce, if they still chose to do so?
Ms. Hitch: I think, at the moment, the plans are more modest in
terms of adding things to websites and making linkage. We could take that
Senator Jaffer: I have been thinking of what you said. I wish we
had more time to work on this bill, but we do not; that is life. You talked
about Canadian courts hearing evidence. My experience is that Canadian
courts hear evidence of events that happen in foreign jurisdictions; you
know this. There are refugee claims or criminal acts such as sex tourism and
kidnapping, and often also to do with custody in the family law context. The
courts hear all the time about what has happened in other places. If we can
hear evidence in those cases, why would we not hear evidence in the case of
a non-resident divorce? Would not providing these grounds to a non-resident,
same-sex couple violate section 15 of the Charter?
Ms. Hitch: I will take those questions in the reverse order.
In terms of not allowing the two grounds, it is the position of the
department that there is no issue, simply because, as I said, 95 per cent of
cases are currently solved on the one-year residency.
There is no blockage to the non-resident couples achieving the
dissolution of the marriage. Actually, in most instances, they would achieve
it faster than if they were trying to prove adultery or mental or physical
cruelty; so those are not faster routes being cut off.
In terms of Canadian courts, yes, they often hear evidence about events
that happen in foreign lands. The problem is not so much that as it is the
fact that in this particular instance there is no Canadian aspect, other
than the fact of the marriage.
Senator Joyal: I would like to come back to page 4, proposed
sections 12 and 13 of Part 2 in relation to the reference of making rules
applicable to this part in a court in a province. I am referring to proposed
When we go lower, 13(2), in my opinion the bill contains a very
surprising element, which is:
Any regulations that are made to provide for uniformity in the rules
prevail over those rules.
In other words, it seems to me that the federal government now has the
capacity to unify the procedure that the provinces would have adopted under
their jurisdiction under proposed section 12. How do you explain and maybe
justify that provision in the bill?
Ms. Hitch: I can point out that those provisions mirror equivalent
provisions in the Divorce Act, so there is no anticipation by the Department
of Justice, at least, that there will be a need to regulate in that area,
simply that in order to make the process parallel with the Divorce Act, that
power was kept just in case. We do not expect to have to use it.
Senator Joyal: That is why I wanted to get the intention of the
department in relation to that. I expect that if the Department of Justice
would ever initiate a movement to standardize the rules, they would have to
go through a federal-provincial conference and have an agreement among the
provinces. I know one province that would be very zealous in keeping its
rules in relation to divorce, and I do not think I need to name that one.
Ms. Hitch: No, we usually have more collaborative mechanisms for
dealing with uniformity rather than having to impose it. I think the concern
in the Divorce Act instance, which has not been realized yet, and similarly
here, would be if a particular province wished to impose additional
requirements that took longer than they did in other provinces, and whether
there would be a fairness issue.
Senator Joyal: That is a very important criterion to maintain, and
I thank you for having expressed it.
Senator Batters: On that point, how many years has the Divorce Act
been in effect?
Ms. Hitch: My apologies, but I do not think I can count anymore.
Senator Batters: In that time, that particular section we are just
talking about, has the federal government ever used that uniformity of the
Ms. Hitch: No.
The Chair: We rarely get into a third round, so that is an
indicator of what an interesting and helpful witness you have been. Thank
you very much. We appreciate it.
Our next witness, appearing via video conference from Toronto, is Brenda
Cossman, Professor of Law, Director, Bonham Centre for Sexual Diversity
Studies, University of Toronto.
Professor Cossman, I gather you have an opening statement and we will
cede the floor to you.
Brenda Cossman, Professor of Law, Director, Bonham Centre for Sexual
Diversity Studies, University of Toronto, as an individual: Thank you
for the opportunity to appear before you this morning to speak to Bill C-32,
An Act to amend the Civil Marriage Act. In my view, Bill C-32 is a very
carefully tailored remedy to address a very specific jurisdictional problem
faced by non-residents who marry in Canada but find themselves unable to
divorce either in their domiciles or in Canada.
The problem is created, as I think you are aware, by three different sets
of Canadian laws. The first is Canadian marriage laws that do not impose any
residency requirements and thereby allow non-residents to come to Canada and
get married. Second is Canadian divorce law, which imposes a one-year
residency requirement before a court in a province has jurisdiction to grant
a divorce, to hear and divorce and grant one. Third is the very complex
rules of marriage recognition in private international law.
In Canada, we have a range of marriage recognition laws, but specifically
for the essential validity of marriage, which is the capacity that people
have to marry, we follow the rule of dual domicile, which means we recognize
a marriage as valid only if it would be valid where both the parties are
domiciled. In other words, a same-sex couple who live in a state that does
not recognize same-sex marriage, if they get married in Canada and go back
home, according to Canadian law, in the eyes of Canadian law, according to
the well-established rules of private international law, we would not see
that to be a valid marriage, even though it was celebrated here in Canada.
Other countries have different rules of marriage recognition. It is often
more common. Most American states follow a rule of the law of the place of
celebration. They will recognize a marriage to be valid if it is valid in
the place where it took place.
The states, however, also have what is known as "public policy
exception," so even if you have a place of celebration rule and it would
sound like folks who marry in Canada and go back home would have their
marriage recognized, such is not the case. All the states have this public
policy exception, which they then use to say that they will not recognize
same-sex marriage as it violates their state policy.
When you put together all the marriage laws, the divorce laws and the
very intricate rules of private and international law, it means that the
same-sex couple who gets married in Canada is not a valid marriage either in
Canada or in their domicile. They cannot get a divorce in their domicile
because they are not legally married and cannot get a divorce in Canada
because they do not live here, leaving the couple in quite a bind,
effectively, in a marriage that cannot be untied.
There are a number of ways to address this problem. We could impose
residency requirements for marriage. That, I think, has a number of
problems. First and foremost, it would be primarily within provincial
jurisdiction to do so, not federal jurisdiction. The optics would be
problematic insofar as it would look like we are taking something away from
We could remove the residency requirements in the Divorce Act. That, too,
would create a whole series of problems. The reason we have residency
requirements speaks to a question of interprovincial jurisdiction and trying
to decide which provincial court in Canada should have jurisdiction if a
couple then lives in two different places. It would create a whole range of
interprovincial jurisdictional problems.
We could change marriage recognition laws. That would only go a short
distance toward remedying this problem. It would, perhaps, recognize the
marriage as being valid but would not address the problem of how to get a
Each of these other solutions would, at best, be a partial solution, and
many would actually then create their own problems.
Bill C-32 is, I think, very narrowly targeted to help non-resident
couples get a divorce while leaving the rest of marriage and divorce law
Part 1 of the bill simply changes the law of marriage recognition only
for marriages celebrated in Canada. The marriage of non-residents who marry
in Canada will now be recognized as valid, regardless of the law of their
It is also important to note that we seem to be talking primarily about
same-sex marriages, but it does not apply only to same-sex marriages. It
would apply equally to first-cousin marriages and for marriages recognized
in Canada but not in many other states. There is nothing specific to it
around same-sex marriage; we do not seem to have a ton of folks coming up
from the States to get married in Canada in first-cousin marriages, but it
would equally apply to them if we did.
Part 2 of the bill applies to a divorce process exclusively for
non-residents who entered into marriages in Canada, allowing the Canadian
court now to grant divorce if the couple lived separately and apart for one
year and they live in a state that does not recognize marriage and will not
grant them a divorce. It is a narrow exemption from our regular divorce
laws. It is very narrowly tailored to these particular couples who find
themselves in this legal bind.
Proposed subsection 7(2) allows the couple to make their application
jointly or solely with the other's consent. As Ms. Hitch has already spoken
to, as the bill was originally drafted, the person applying without the
other spouse's consent would have needed to obtain an order from the court
where the parties reside. That was considered by many of us to be quite
problematic insofar as it is extremely unlikely that a party who lives in a
jurisdiction that does not recognize same-sex marriage or same-sex divorce
would actually be able to obtain any kind of a court order helping them to
get out of this marriage.
However, 7(2) as it has been revised now allows Canadian courts to
actually dispense with this consent, to have the hearing, to see if it is
appropriate in this case to dispense with the other spouse's consent, and to
go ahead with the divorce application. I think this satisfactorily resolves
what was an earlier problem and gives the Canadian court the appropriate
discretion to proceed here.
Finally, let me just say before ending my introductory remarks that Bill
C-32 makes it very clear that non-residents do not have access to the
corollary relief provisions of the Divorce Act — support and custody. I
would be pleased to elaborate on this point should any honourable senator
have questions about this, but it is my unequivocal view that it would be
absolutely inappropriate for Canadian courts to take jurisdiction over these
issues. It is completely appropriate that Bill C-32 is saying, "We are
simply dealing with the question of divorce and the status of divorce,
rather than allowing these couples to come up and access our courts to deal
with the broader issues that divorce does raise for Canadians around spousal
support, child support or child custody."
I would be happy to elaborate in questions.
The Chair: Thank you, Professor Cossman. We will move to
Senator Joyal: We have been told by the representative of the
Department of Justice Canada that Canada would be one of the first countries
to "normalize" that situation. In your opinion, why has that issue not been
addressed before in other countries of common law background?
Ms. Cossman: There are a number of reasons. It is very much a new
and evolving issue. Canada was one of the first jurisdictions to recognize
same-sex marriage, and it remains one of the few common law jurisdictions to
We have moving goal posts here. This is something that will increasingly
have to be addressed.
In the United States, a number of jurisdictions have begun to try to
address some of these issues. Although, in the United States, with 50
different family law jurisdictions and 50 different sets of rules — the
majority of which do not recognize same-sex marriage — they are facing a
similar set of problems where couples get married in one place where the
marriage is valid and move to another place where it is not valid. The
courts are struggling with this right now. Some shut it down completely and
say they want nothing to do with same-sex marriage, and others are trying to
figure out a way to recognize this.
The reason we are on the forefront is precisely because we were on the
forefront of same-sex marriage.
Senator Joyal: Before I move to the next question, there is a
point I want to put on record. Senator Batters asked of the previous witness
when the first Divorce Act was adopted in Canada. It was adopted in 1968 to
normalize the situation in Newfoundland and Quebec where there was no
divorce before 1968 because of historical reasons. The act was revamped in
1985 to recognize no-fault divorce, which is only the fact of separation for
a year. Since my colleague was in the same situation as my ancestors in
relation to divorce, I wanted to put that on the record.
You mentioned that you support the idea of excluding the Divorce Act from
the situation of the first part of the bill because you thought that the
implication of divorce might be so much different from one country to the
other that the bill did not want to address that issue. The bar, as a matter
of fact, wanted to include the Divorce Act in the ambit of the bill. Could
you restate your answers on that argument?
You might be aware that the Canadian bar sent to the Minister of Justice
in March of last year a letter outlining that aspect of the bill and the
situation of the bill you seem to support. Could you explain why you still
maintain that position?
Ms. Cossman: I think there are two different issues here. The
first is whether this bill and the amendments it is putting in place belong
in the Divorce Act itself or whether they belong to the Civil Marriage Act.
I am somewhat agnostic on which act it should be in. The reason I think that
Justice decided to go ahead and put it in the Civil Marriage Act was to
carefully cleave off one small area where we will help these couples get a
divorce and to not open up the Divorce Act more generally.
I think that the Canadian Bar Association in its submission, as best I
can recall, believes that matters dealing with divorce best belong in a
Divorce Act and that we could similarly cleave out a small section of the
Divorce Act that would deal specifically with non-resident divorce. We could
do exactly the same thing there in that we would carve out very specific
jurisdictional rules for non-residents.
We would also make it clear that they would not have access to other
provisions in the Divorce Act. There would be many more provisions, though,
that we would have to specify that they would not have access. They would
not have access to proposed section 8, which is the broader set of grounds,
and proposed sections 15 and 16 dealing with corollary relief.
I think this could be done in either the Civil Marriage Act or the
Divorce Act. There is something tidy about putting it in the Divorce Act
since it deals with divorce. However, I am agnostic; we could do it in
Senator Joyal: The other argument raised by the bar is the
one-year residency for the two partners. They claim that one spouse could
prevent the other from divorcing by leaving the country. How do you answer
We know that when a marriage or partnership breaks down, it happens that,
especially if the two spouses are from different countries of origin, one
would be tempted to go back to such a country, thus preventing the other one
from getting the divorce. How do you answer that question?
Ms. Cossman: My understanding is that they need to be living
separately and apart for one year. They do not have to live in the same
domicile, but they do have to live in one domicile separately and apart for
one year. It is possible that the non-consenting spouse in a high-conflict
situation could just keep moving; they could move again every time at the
end of year. As the previous witness mentioned, this would be certainly
possible. It would require a tremendous amount of gymnastics to do that.
As a family law professor, I never want to underestimate the ability of
people to behave appallingly upon divorce. However, it would seem quite
extreme in that every time a year ends, they would have to move
jurisdictions again to undermine this. It would be a very negligible chance
of this happening.
Senator Joyal: You specialize in studies of sexual diversity. Do
you think this bill would have a greater impact on women than men?
Ms. Cossman: No, I do not. We do not have good statistics right
now on the gender of folks who are non-residents that come up, get married
in Canada and go back home. We do not have good statistics on how that
divides by gender. Anecdotally, I imagine there would be a few more male
couples than female couples based exclusively on demographics and financial
This would apply equally to same-sex female and same-sex male couples. I
do not see there being any discrepancy here, particularly since we are not
dealing with questions of support or custody. We are simply dealing with
folks who got married and now find themselves in the difficult situation of
not being able to get unmarried.
Senator Plett: Ironically, Senator Joyal pointed out that the
Divorce Act came into effect in 1968. That was the year that my long
suffering wife and I got married, and we have been together for almost 45
years. We did not have a divorce clause in our marriage; we are still
together and happily so.
On that note, I think I should have asked this question of Ms. Hitch when
she was her, but I will ask it now. Divorces over the years have become more
common. Although the Divorce Act came into being in 1968, and certainly we
are talking largely of same-sex here, the same-sex marriage act came into
being much later when divorces were more common.
How could we have missed putting something like this in that act when it
was established? To me, it would appear to be a glaring, big gaping hole
that we missed that we now have to deal with. I am not sure if you can
answer that, but I would like your thoughts.
Ms. Cossman: I think it was indeed a hole, but for most of us who
followed this carefully — those of us who read the rules on the back of the
box even when they are tedious, like private international law — we could
see the train coming down the tracks, and it was a matter of when this would
happen. This is happening. It is a big problem happening in the United
States where each of the jurisdictions has different rules, so yes, in many
respects it was a glaring hole.
Should we have sat down and thought about it at the time? Perhaps. I
think it was easier right then to just do the Civil Marriage Act. That was
difficult enough in its own right in 2005. There were many political
difficulties at that time, so I am sure the Department of Justice and
Minister of Justice at the time made whatever decisions they made, but it
was not because we did not know this was potentially a problem.
I am the prophet of doom around marriages; I was figuratively the one
standing outside city hall with all the Americans coming up to get married
saying, "Do you know what you are doing? You will not be able to get out of
this marriage." No one wants the prophet of doom at their wedding. This is
true for everything dealing with family law.
Yes, it was absolutely a problem before, but as with so many problems, we
deal with it when it arises. That is what we now see.
Senator Plett: I will close with the statement that I am glad you
were not there when my young bride foolishly made the decision to marry me
because you might have talked her out of it.
Senator Jaffer: I heard what you said about corollary relief and I
also read your paper in the Canadian Family Law Quarterly where you
set out the NDP proposal, and you clearly set out why the corollary relief
should not be part of this legislation. I am still troubled by this. As a
lawyer, when I file for a divorce, one of the things I have to provide for
the judge is that the financial arrangements for the children are
satisfactory. The judge also has to be satisfied that the financial
arrangements, especially for the children, are satisfactory.
In these cases, there could also be children. If the marriage and the
divorce are not recognized in their countries, then what happens to their
Ms. Cossman: I think what has to happen with the children, be it
child support or child custody, is the question of what jurisdiction. What
state has jurisdiction over those issues has to be determined according to a
very different set of laws, and it needs to be determined according to
private international rules around jurisdiction over children.
In Canada, we have a range of rules in place about when our courts will
take jurisdiction over either non-residential or where there are at least
two or three potential jurisdictions involved. The Supreme Court of Canada
has said the test right now for private international law is, first, whether
there is a real and substantial connection between the child and the court.
Even where there is a real and substantial connection, is it appropriate for
the court to assume jurisdiction or is there a more appropriate form?
In the context of those rules, let us say a couple is domiciled in Texas.
They come to Canada, get married here and go back to Texas. Now they want to
get divorced. They can come to Canada and have their relationship divorced;
they can get the status of divorce. If they have children, they would have
to be dealt with in the jurisdiction that has a substantial connection to
those children, and that would likely be Texas if they are both still living
there. It might be that one has moved to New York State and the fight would
be whether it should be New York or Texas rules. Who has more connection
with the child?
The rules of private international law more generally — not in Canada —
have been moving toward using the child's habitual residence as a basis for
determining who has jurisdiction. That has been endorsed by The Hague
conferences which are the expert leaders on articulating the rules of
private international law, and one I would be in favour of.
To go to your question of what would happen with the children, we will
have to use those other jurisdictional tests to decide which jurisdiction
has the best connection with that child. If it is the child's habitual
residence, then we will figure out who has the habitual residential. Is it
Texas or New York? It will be up to those states to deal with it.
Senator Jaffer: The challenge I have is the Convention on the
Rights of the Child. I will not look at a U.S. example, but another example.
I am not trying to point fingers at a country, but if it was Saudi Arabia,
in their country the rule is that after a certain age connection, if I
understand it well, does not matter. The child's custody is given to the
father. If the parties were married here and the mother said, "If I look at
custody issues in Saudi Arabia, I would not be treated equally," then would
we not have a Charter issue?
Ms. Cossman: I think this is a problem.
Here is the problem: We cannot assume jurisdiction. We cannot open up
Canadian courts and provide jurisdiction simply on the basis that we think
Canadian laws are better than the laws of other countries. That is not the
basis for establishing jurisdiction, because presumably we think Canadian
law is better than all others because it is our law and we have passed it.
It would be deeply problematic to open our jurisdiction simply based on idea
that laws in other countries are unfair. There has to be more of a
connection between the litigants, or in this case the child, and our courts.
It cannot simply be because what is happening in other countries is unfair.
Senator Dagenais: We addressed this topic with the previous
witness, but I will ask you the question as well. Is there not a risk that
this new divorce legislation will attract non-residents, who are legally
married in another country, to Canada? I am talking about people who are
legally married non-residents who come from other countries.
Ms. Cossman: Is the question: Will they want to come to Canada
just to get their divorces?
Senator Dagenais: Indeed, it may be attractive for non-residents
who are legally married in their own countries. They might want to come to
Canada because the divorce process under the new legislation would make
getting divorced easier than in their country of residence.
Ms. Cossman: According to this proposed legislation, there are
three requirements. It is a very carefully tailored bill to keep it narrow.
They would have to be non-residents, married in Canada, and living somewhere
that the state will not grant them a divorce — they cannot get a divorce at
all. Say they live in Louisiana, where the divorce laws are somewhat more
stringent. It is not enough to say, "In Louisiana I would have to live
separately and apart for three years, but in Canada I only have to live
separately and apart for one year, so I will come to Canada." You have to be
unable to get a divorce at all where you are domiciled. It is a very narrow
set of people who otherwise have their hands tied and will not be able to
get out of their marriages. We are not creating any sort of forum shopping
for people to come here because it is a better divorce.
Senator Baker: I have a general question on the prior
explanations. Under existing law, if the custody of children is in dispute
and the children are in Canada with one of the spouses, a motion would be
made to the court in Canada that custody be decided in the previous home
where the children lived with the other spouse. Invariably, the court orders
that this be the case and the children and the spouse are returned under
existing law to the place where they lived. I believe that is your main
point, is it not, in existing law?
Ms. Cossman: Under existing law, yes.
This is an area where there is a tremendous amount of court discretion.
It is an area that has been devised by the courts and articulated by them.
However, if there is a custody issue, the courts will try to ascertain
whether it ought to take jurisdiction and whether the child lives in this
jurisdiction. If the child does not live in this jurisdiction, then it will
be a bit of a problem. Is there some additional reason that we have a real
and substantial connection to this child? Often these cases involve
scenarios where the child spends most of their school year in one place but
their summers in another place. Would that be enough for the court to assume
jurisdiction because the child was there in the summer? Was there a great
enough real and substantial connection for the court to assume jurisdiction?
If the child simply lives in another jurisdiction and has always lived
there and has no connection with Canada other than that their parents got
married in Canada, it ought not to be enough for us to assume jurisdiction
over their custody issue.
Senator Baker: Much case law reflects such decisions referred to a
state in the United States or to another foreign country for adjudication;
and the matter of custody is not adjudicated here in Canada.
Ms. Cossman: That is right.
Senator Baker: What are your thoughts on the Hincks case
that was adjudicated in January 2013?
Ms. Cossman: I have thoughts on everything. Are you asking as it
specifically relates to Bill C-32 or more generally?
Senator Baker: Yes.
Ms. Cossman: More generally, I think that Madam Justice Mesbur's
decision is solid. She is cutting new ground, but it is a very thoughtful
decision that tries to provide some kind of remedy for people who find
themselves in this strange legal limbo. In different jurisdictions, we have
different ways of recognizing relationships. I find her reasoning, where she
effectively finds a civil partnership in England to effectively be the same
as a marriage for the purposes of both federal and provincial law, to be
quite persuasive. They live here, so there is a reason for them to have
jurisdiction here. The question is: Should they be able to access Ontario
property division and spousal support? I find Madam Justice Mesbur's
reasoning quite persuasive.
Senator Baker: It is not the government that is appealing the
decision; it is the respondent. The Attorney General of Canada was an
intervener only as requested by the court and did not unilaterally move in
and express the government's view. However, the respondent is the applicant
in this case, not the Attorney General of Canada. Is that not correct?
Ms. Cossman: That is correct. In the first case, there were
attorneys general on both sides: the Attorney General of Canada on one side
and the Attorney General of Ontario on the other side.
Senator Seth: This is getting more interesting. I understand that
these rules will be applied to all the provinces and territories —
amendments in terms of marriages and divorces for non-residents. Have any
restrictions or criteria been set out in terms of marriage and divorce for
Ms. Cossman: Are you asking about restrictions on when they would
be able to obtain a divorce?
Senator Seth: Are there any restrictions or rules around getting
married? Can anyone come here and just get married?
Ms. Cossman: Currently in Canada, because of the peculiar ways in
which jurisdiction over marriage is divided between the federal government
and the provinces, the provinces largely have jurisdiction over the
solemnization of marriage, which means the marriage ceremony. The provinces
have not imposed a residency requirement. They could do so but they have
not. It would be up to each province to decide if it wanted to impose a
residency requirement. It would be completely within their jurisdiction and
so completely up to their discretion if they thought they ought not to let
people come up.
I am not sure that the federal government could do it. I am not convinced
that the federal government has jurisdiction over this because it would deal
with the solemnization of marriage, which is provincial.
Currently because of the rules in the provinces, anyone can come to
Canada and get married, yes, as long as they fit our requirements of
marriage. People cannot come from a polygamous country and get married and
siblings cannot get married. People can come and get married as long as they
fit the definition of "marriage" within the Civil Marriage Act.
Senator Seth: I was heading towards this area. Will there be any
restriction in terms of non-residents who have been incarcerated in their
Ms. Cossman: No. We have no such restrictions. The federal
government probably could not impose those restrictions, but a province
might be able to that as a solemnization issue.
Senator Seth: If someone has been jailed in their own country and
comes here to get married, is it not a threat to our country to allow them
to do that? Who knows next what happens as they may not go back?
Ms. Cossman: They can come and get married here but they cannot
stay. Just because they get married here does not mean they can stay. Anyone
can cross the Peace Bridge, get married and then just head right back home.
Getting married here does not really do anything. People can come up,
cross-border shop, get married and go back home. It does not do anything to
allow them to say here.
Senator Joyal: I want to remind you, professor, and viewers who
are watching us, that there are historical reasons why, as you stated, we
have a difficult situation in Canada whereby the definition of marriage and
divorce is under federal jurisdiction and solemnization is under provincial
As you know, at the time of the pre-Confederation debates, the
representatives of Lower Canada, which is Quebec today, did not want to have
divorce under the heading of the provinces because it was not recognized in
Lower Canada due to the church's position that marriage was forever. There
was no way to get out of it once you had satisfied the conditions of
marriage. Of course, since that time, the situation has changed the world
over and in Canada also.
Do you think it would be a good thing that the bill also apply to civil
partnership unions? Fourteen countries around the world have civil
partnership, almost equal to the number of countries that have same-sex
marriage. Would it not be meeting the objectives of the legislation to have
that bill extended to civil partnership unions?
Ms. Cossman: No, I do not think so, for two reasons. The first is
that when it comes to civil partnerships, it is unclear that the federal
government has any jurisdiction. The federal government has jurisdiction
over marriage and divorce. There are questions about whether civil
partnership fits within the idea of marriage and divorce, and the weight of
opinion seems to be that the federal government would not have jurisdiction.
That would be up to the provinces.
The second and I think probably more significant reason is that this bill
is really designed simply to deal with non- residents who came to Canada and
got married because they could and then went back home. With civil
partnership, those civil partnerships were entered in another country. They
were entered somewhere else, not here, so my view would be that, if there is
a problem with people entering civil partnerships, let them go to those
countries. If it is Denmark or Norway, who have long had civil partnerships,
they are the ones who will have to deal with the problem of how someone gets
dissolution of that partnership.
There will be another question: Will a civil partnership entered into
elsewhere be recognized as marriage here? That is exactly what is going on
in the Hincks case, and I think that will be up to the courts to
establish. It will then be up to the provinces to decide how their family
law legislation will apply to these civil partnerships.
The Chair: Thank you, professor, very much. We appreciate your
assistance with the committee's deliberations.
Ms. Cossman: It was my pleasure. Thank you.
The Chair: Members, it is not our usual procedure, but the
steering committee has agreed that we will deal with clause-by-clause
consideration today. Is it agreed that the committee proceed to
clause-by-clause consideration of Bill C-32, An Act to amend the Civil
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Does the committee wish to discuss any observations?