Department of justice lawyer in Toronto argues non-Canadian lesbian, homosexual unions only valid here if recognized in their home  country.

by Tara Carman, Vancouver Sun.

Vancouver -- When Guy Herrigton and Jason Athen took their vows in Tofino five years ago, they had every intention of being married for life. Now the federal government is saying they may not be married at all.  The couple was shocked to wake up to the news on Thursday that a federal government lawyer is arguing that their marriage may not be valid under Canadian law. Ontario Superior Court documents reveal that a Department of Justice lawyer in Toronto is arguing that non-Canadian gay and lesbian couples are only considered married under this country's laws if fay marriage is also recognized in their home country or state.

Kerning Herrington, who is Canadian, sponsored Athen, who was living in Florida at the time of their marriage, to immigrate to Canada as his spouse. Florida does not recognize same-saxe marriage.

Jason was in tears. It really affected him, '' Herrigton said of his partner, a local artist. '' He moved to Canada to get away from that type of discrimination. And now we're getting attacked years later. 

The Toronto case that started the controversy involves a foreign lesbian couple seeking a divorce.

The couple wedding was in Toronto 2005. Under a court order, they cannot be named. In response to their application, a lawyer for the Department of Justice contended that the couple cannot divorce in Canada because they were never really married.

The government's stance on the issue, according to federal lawyer Sean Gaudet, is that a same-sex couples's marriage is only valid under this country's laws if gay marriage is also recognized in their home country or state.

The couples lives in Florida and England, wich do nt recognize gay marriages.

      '' As a result, their marriage is not legally valid under Canadian law''

, Gaudet stated.

CAnada's Divorce Act also states that all married couples, regardless of sexual orientation, must live in Canada for at least one year in order to divrce in this country, which was not the case for this non-Canadian couple. Because Florida and England don't recognize the couple's marriage, they cannot divorce in those juridictions, either.

On Thursday, Federal Justice Minister Rob Nicholson admitted that, under current law, the marriage of the couple in question '' could nt be dissolved in Canada''.

But Nicholson also said the federal government is looking at clarifying the law to allow non-resident gays and lesbians married in  Canada the right to ger divorced here even if their place of origin doesn't recognize them as a married couple.

     Less clear was whether Canada considers marriages in such cases to be legal.

Statements on Thursday by Nocholson and Prime Minister Stephen Harper did not directly address that issue. 

If a judge were to uphold the arguments the Department of Justice is making, it would mean that any marriage between non-Canadians who could not get married in their country of origin would be void said Vancouver lawyer Barbara Findlay, who specializes in issues involving sexual minorities.  

'' And that thousands of couples all over the world who relied on the fairness, justice and equality of our Canadian legal system''.

Seatle-based relationship columnist Dan Savage and his partner Terry Miller are one such couple.

Savage and Miller were married in Vancouver in 2005. Same-sex marriage is not legal in Washington state, but the law there does recognize couple married in jurisdictions where it is legal as a domestic partners. This status affords all the same rights, responsabilities and protections the state provides of married couples. Savage said.

If we're not legally married in Canada, we're not domestic partners in Washington state, which means this memo from these lawyers potentially stripped Terry and I overnight of the protections and rights that we enjoyed for the last seven years,'' he said.

If the federal lawyer's contentions is, in fact, government policy, Savage nted that he and his partner would also not be considered married in Canada.

We spend a lot of time in Canada spending a lot of money doing dangerous things, '' Savage said. '' We go snowboarding all the time in the Canadian Rockies and we've always had the comfort of knowing that if, God forbid, should anything happen, we would be able to make medical dicisions for each other in an emergency. And now what apparently is going to happen is that if there's an emergency, I'm going to have to find Terry's mom or he's going to have to find my dad to make emergency medical decisions. It's just insulting and unnecessary.'' 

There are countries that ban practices such as interfaith marriage, and Aavage quiestioned whether Canada would allow such countries an effective veto over domestic marriage laws.

'' Is Canada going to empower those nations to invalidate marriages of foreign nationals in Canada, some of whom are married to Canadian citizens? Doubtful. So again, this is going to be a special right that only gay people are entitled to, the special right to be discriminated against in Canada's marriage laws.'' 

Harper, Speaking in Vancouver on THursday, said Canadian law recognizes same-sex marriage and that the government does not intend to reopen that issue. 

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