ARCHIVED — Vol. 147, No. 18 — August 28, 2013

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Registration

SI/2013-93 August 28, 2013

CIVIL MARRIAGE OF NON-RESIDENTS ACT

Order Fixing August 14, 2013 as the Day on which Section 4 of theActComes into Force

P.C. 2013-889 August 13, 2013

His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 5 of the Civil Marriage of Non-residents Act, chapter 30 of the Statutes of Canada, 2013, fixes August 14, 2013 as the day on which section 4 of that Act comes into force throughout Canada.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

This Order in Council, made pursuant to section 5 of the Civil Marriage of Non-residents Act,fixes the coming-into-force date of the new process for the dissolution of marriage for non-resident spouses as August 14, 2013.

Objective

The new process for dissolution of marriage provides nonresident spouses who married in Canada with a mechanism to end their marriage. This process is available to them only if they cannot dissolve their marriage where they live because their Canadian marriage is not recognized there.

Background

The Civil Marriage Act, enacted in 2005, extended the legal capacity to marry for civil purposes to same-sex couples across the country.

In January 2012, the media reported on the case of a same-sex non-resident couple who, having married in Canada shortly after the adoption of the Civil Marriage Act, were seeking to dissolve their marriage in Canada. Neither of the applicants’ home jurisdictions (Florida and the United Kingdom) allowed individuals to marry another person of the same sex, and so they were unable to obtain a divorce where they reside, or to obtain it under Canadian law.

In response, the Government of Canada introduced Bill C-32, Civil Marriage of Non-residents Act,to amend the Civil Marriage Act. Section 3 of the new legislation creates Part 1 of the Civil Marriage Act, which retroactively deems Canadian marriages of non-residents legally valid for the purposes of Canadian law, where they would have been valid for Canadian residents. Section 4 of the new legislation introduces Part 2 to the Civil Marriage Act and provides for a new process for non-resident couples who are unable to access divorce in their country of residence to end their Canadian marriages.

On June 26, 2013, the Civil Marriage of Non-residents Act received Royal Assent. Section 3, relating to the validity of the marriages, came into effect upon Royal Assent. Section 4, establishing the process to dissolve non-resident marriages, is brought into force with this Order in Council. From now on, non-resident couples who are unable to access divorce in their country of residence are able to apply to a Canadian court in the province or territory where they were married for the dissolution of their marriage.

Implications

Under the Constitution, the provincial and territorial governments are responsible for the administration of justice. Implementing the new process for the dissolution of non-residents’ marriages performed in Canada may require changes to provincial and territorial court rules and forms. Provinces and territories indicated that initial applications could be processed with current rules and forms. As more countries legislate same-sex marriage and divorce, the impact on court caseload is expected to be minimal since there will likely be fewer of these cases brought to Canadian courts.

There may be minor costs for the provinces and territories to implement this new process, but there will not be any significant financial implications for the federal government. Public legal education and information will be provided on the Internet to explain the new process.

Consultation

Bill C-32 was tabled on February 17, 2012. Since tabling, there have been comments by the legal community, stakeholders and other experts in various forms (letters, media, academic papers). There were also discussions with provincial and territorial officials. The reaction varied from neutral to generally supportive.

Departmental contact

Lise Lafrenière Henrie
Senior Counsel/Coordinator
Family Law Policy
Family, Children and Youth Section (FCY)
Department of Justice
Telephone: 613-957-0059