On January 12, 2012, the Federal government filed pleadings in a Toronto case commenced by a non-resident same-sex couple seeking a divorce.  The documents shocked many people and essentially, told thousands of same-sex couples who came to Canada from out of the country since 2004 to get married that they are not legally wed. In the specific case in which the documents were filed, the couple wed in Toronto in 2005 and cannot divorce because (according to the documents) their marriage was not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside.

The government’s statements cast sudden doubt on the rights and legal status of same-sex married couples who wed in Canada.  The mechanics of determining issues such as tax status, employment benefits and immigration have been thrown into legal limbo.Since 2004, more than 5,000 of the approximately 15,000 same-sex marriages that have taken place since then involved couples from the United States or other countries.The government documents specifically state that couples who came to Canada to be married must live in the country for at least a year before they can obtain a divorce and same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple.Under this reasoning, the federal government would recognize the validity of marriages that take place in Canada provided the same-sex partners come from a state or country that also recognizes same-sex marriage.Their divorce application will be considered next month by an Ontario Superior Court judge. They are asking the judge to either craft an exemption allowing them to divorce or to strike down any legislative provision that has the effect of preventing them from doing so.

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