Posted by wjadmin — filed in Fundamental Freedoms
by Darryl Aarbo
As far as I am aware I am preparing the first divorce under this legislation in Alberta. I have contacted the Clerk and this information has been confirmed to me.
The reason this legislation came into its existence is because Canada allows same sex marriage. What has happened is that couples have married in Canada then moved abroad. If these couples find themselves in a jurisdiction that does not recognize same sex marriage then they cannot get divorced. If a country does not recognize same sex marriage then they are not going to recognize same sex divorce. This has put a number of couples throughout the world in an extremely difficult position. They cannot get divorced.
What is particularly interesting about the legislation is that Part 2 of the legislation deals with the dissolution of marriage for non-resident spouses. It is a fairly straight forward and technical legislation that allows people caught in this conundrum to obtain a divorce in Canada even if they live abroad.
Section 3.1 states and goes on to explain that the reason for this section is to reserve a freedom of conscience and religion guaranteed under the Charter. It seems to be a twisted logic that the Charter of Rights and Freedoms is itself used to justify another breach of the Charter of Rights and Freedoms. Normally the Courts engage in a balancing of rights, as opposed to using one right to override another right.
In any event, it is this writer’s opinion that those sections ultra vires the federal government. In other words, these sections would violate the Constitution Act, 1867. The Constitution Act, 1867 divides up the powers between the provinces and federal government. The solemnization of marriage is a provincial responsibility and it would appear that the federal government is trying to legislate within this realm.