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.

[English]

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 "Senate Committees."

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 Canada.

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 this morning.

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 is needed.

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 residents.

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 might have.

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 confusion.

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 identity.

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 case.

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, if necessary.

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 recently expired.

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 consent.

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 be challenged.

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 another jurisdiction.

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 child?

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 married.

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.

[Translation]

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?

[English]

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 and territory.

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 circumstances.

[Translation]

Senator Boisvenu: Does this bill make Canada a leader in recognizing new rights or have other countries adopted similar legislation?

[English]

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 that state.

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.

[Translation]

Senator Boisvenu: Are those countries feeling the same pressure that we have felt in Canada to recognize those rights?

[English]

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.

[Translation]

Senator Boisvenu: Has this led some countries to put pressure on Canada not to pass this bill?

[English]

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 extreme circumstances.

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 those countries.

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 in Canada.

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 cost?

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 rules.

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 appeal?

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 through.

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 under advisement.

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 subsection 12(2).

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 rules section?

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 people.

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 divorce.

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 unaltered.

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 domicile.

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 questions.

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 do so.

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 either act.

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 that question?

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 circumstances.

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 children?

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.

[Translation]

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.

[English]

Ms. Cossman: Is the question: Will they want to come to Canada just to get their divorces?

[Translation]

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.

[English]

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 non-residents?

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 own country?

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 jurisdiction.

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 Marriage Act?

Hon. Senators: Agreed.

The Chair: Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Shall clause 1, which contains the short title, stand postponed?

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?

Hon. Senators: No.

The Chair: Thank you all.

(The committee adjourned.)