Divorce likely will be impossible for non-Canadian-resident gays getting married in Canada because of a peculiar twist in Canada’s immigration and divorce laws.
Yes, it is true any pair of queers in the world can fly into Toronto, get their marriage licence at City Hall, and get hitched on the spot at City Hall. Canada is currently the only jurisdiction in the world where non-resident gays can get married.
While literally hundreds of foreign same-sex couples have walked down the aisle since gay marriage was first legalized in June, 2003, in Ontario, a word of caution, however, to our love-struck sisters and brothers in other countries.
There are a couple of catches. First, it is very likely that a Canadian same-sex wedding will not be recognized in another country. So when you get home, all you have are memories of a terrific honeymoon in Canada (warning: Niagara Falls is breeder territory) and a lovely piece of paper you can frame on your wall, but no particular legal status in your home country beyond what you already had (which likely wasn’t much).
Secondly, and this is the sad little reality no one seems to want to talk about. I don’t mean to rain on anyone’s parade, but there is the small matter of divorce. It is true you do not need to be a Canadian resident to get married.
But it is also true you must be a Canadian resident to get a Canadian divorce, regardless of whether you are gay or straight. While the Canadian Divorce Act now allows for gay divorce, this only affect legal residents of Canada. Non-residents are left out with no recourse.
And just so you know, over the past few years the Canadian government has been gradually tightening immigration requirements to the point where today, for instance, more than three quarters of the US population would be ineligible to become residents of Canada. That’s how demanding current immigration standards are. It would be little different for individuals applying from other countries. Please check my immigration links if you would like to explore this topic further.
And no, the two of you cannot become legal residents of Canada by virtue of your Canadian marriage. That loophole was sewn up decades ago. A quickie divorce in Mexico, you say? Don’t count on the Canadian government recognizing that one, my friend. You’ve got better odds at winning the lottery. And the chances of this situation changing soon are zero. Absolutely no one, and I mean nobody, in the government is thinking of changing this peculiar foreign-resident divorce situation. Period. Full stop.
What I’m trying to say to non-Canadians is that before you book your hotel and flight to Toronto or some other Canadian city, be very sure about the lover you are about to marry. Because of this unusual quirk in Canadian immigration and divorce laws, non-Canadian residents may indeed discover they are married “until death do us part”.
For those of you in the TG community, it’s useful to understand that the legal definition of marriage in Canada is now changed to be the “lawful union of two persons to the exclusion of all others”. Now, I’m not a lawyer and I can’t give legal advice (so don’t email me on this one), but my unofficial observation is that this new definition of marriage should mean that transgendered individuals, both pre-op and post-op, would be free to marry whomever they wish, provided all other criteria are met. Nonetheless, if you have complex circumstances or are in any way unsure about your situation, do the smart thing. Be sure to see a queer-friendly Canadian lawyer before you see a Canadian preacher.
And speaking of gay divorce, an August, 2005, ruling by a Supreme Court judge in British Columbia made same-sex adultry grounds for an immediate divorce. In the case in question, the judge granted an immediate divorce to a straight woman who discovered her husband was having an affair with a younger man. Prior to this ruling, adultry in Canada could only be between a man and a woman and not a same-sex extramarital relationship.
Check with your lawyer if you have any questions about this, but my layman’s view is that this ruling has serious implications in the following hypothetical situation: Gentleman X is married to Gentleman Y. Mr. X discovers Mr. Y has a fling going on with a third man, Gentleman Z. It’s entirely possible Mr. X could file for an immediate divorce from Mr. Y and likely get it, no questions asked except to provide legal proof of the fling between Mr. Y and Mr Z.
Given the propensity of gay men to have a bit of action on the side, or in some cases a so-called “open relationship”, we could find the legal system intruding into our personal lives in a very bigoted heterosexist fashion, trying to define our relationships in heterosexual terms whether we like it or not. I, for one, decry the government and the judiciary trying to define our life, our love, and our lovers. I don’t want the dysfunctional heterosexual model rammed down my throat! One of the joys of being gay is that we have always defined our own relationships on our own terms. If you are of a similar mind, then think twice before you get married. Do you really want the government and the judiciary insisting that you be as fucked up as the straights?
However, love is blind, and none of this legal intricacy seems to have slowed people down. For instance, in the first three years after gay marriage was legalized on June 10, 2003, more than 10,000 gay couples have been married throughout Canada.
The legalization of gay marriage in Canada took a couple of years after the June, 2003, court decision in Ontario legalizing queer weddings in Canada’s largest province. A court ruling in the Canadian province of British Columbia legalized same-sex marriages there in July, 2003, and a separate court ruling in the province of Quebec brought gay marriage to the French-speaking province in early 2004 (Marions Nous!). A July, 2004, court ruling also brought gay marriage to the northern Canadian territory of Yukon, which makes it the only place in the world where queers can get married under the midnight Sun in June.
By Sept., 2004 the courts in the provinces of Manitoba and Nova Scotia had ruled in favour of gay marriage as well, and a November, 2004, court ruling in the province of Saskatchewan added the praire province to the list. Newfoundland and Labrador joined the club with a court ruling in December, 2004, legalizing gay marriage in Canada’s most eastern province. By the time a New Brunswick court ruling ushered in gay weddings in that province in early June, 2005, the running tally in Canada was that same-sex weddings were legal in nine jurisdictions, including eight of ten provinces. This meant that about 90% of the Canadian population lived in a province or territory where gay marriage was already available when Parliament passed the law allowing for gay marriage on June 28, 2005. It came into effect on July 20, 2005 bringing gay marriage (and gay divorce) to the entire country.
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CAUTION:
for married Canadian gay couples travelling overseas
July 19, 2005
Two teenaged boys, Mahmoud Asgari, 16, and Ayaz Marhoni, 18, are executed for homesexuality in Mashhad, the second largest city in Iran. After being held in custody for 14 months and lashed 228 times, they are hung to death publicly in the city square. They had admitted to gay sex after being extensively tortured by Islamic authorities. The exiled Iranian gay rights group, Homan, claims the Iranian government has executed at least 4,000 gays since 1979.
Married Canadian gay couples need to be very cautious about which countries they travel to overseas, according to the Canadian government.
In a travel advisory posted on the Canadian government’s Foreign Affairs websites, the government points out that homosexuality is still illegal in many countries of the world, and a Canadian gay couple presenting themselves as married upon entering such countries could be barred from entry or be inviting more serious difficulties.
The Canadian government is being its usual understated self on this one. There are dozens of countries in the world where vigilantes or the local government routinely, arrest, imprison, torture, flog, and/or execute anyone suspected of being gay.
We live in one of the world’s blessed countries in Canada, and it’s easy to forget that few other countries offer the tolerance and equality which we enjoy here. (And, yes, I’m well aware we still have our own home-grown bigots to contend with.)
If you are queer and married, please click here to learn more from the Department of Foreign Affairs website. There you will find they have at least 40 countries listed where homosexuality is illegal. Understand these listings are not at all complete, and several countries such as Pakistan, where homosexuality is illegal, are not noted as such.
Nonetheless, the listings are instructive as far as they go. For instance, did you know that in Iran and Saudi Arabia those convicted of homosexualtiy may be sentenced to lashing, a prison sentence, and/or death? Chilling reading from the Canadian government. This is not fantasy. Read the story to the right.
Also, check with your travel agent, and for gosh sakes, use your brains and do some research of your own before you travel. Even the Americans have been known to bar married Canadian gay couples from entry. If you’re married, Canadian, and gay, be smart. Don’t assume any country is friendly. Do your research before you buy your plane tickets.
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Canadian Income Tax for unmarried gays
Unmarried Canadian gay couples are now to be taxed at the same rate as married straight couples.
An obscure clause in the law which legalized gay marriage in Canada also amended Canada’s Income Tax Act. For those queers who are marriage shy, this is your warning: Beware. By law the tax people do not care if you and your lover are married or not.
Canada’s tax law now says any two unmarried persons (gay or straight) who live for a year in a cohabitational conjugal relationship (legal phrase for living with your lover), are now considered common-law spouses for income tax purposes, which means you’re going to have to file a joint income tax return, just like married straight couples.
The consequences of that will depend on your specific tax situation. While this may benefit some unmarried gay couples, for others this will result in a significant tax increase.
Yikes!! You know what that means? Ahem, just for openers you just might want to think twice about letting that hot trick from last weekend move in. In addition, if you are already living with your lover, then get some very good tax advice, people. Sooner rather than later.
For you common-law cohabitators this means your lover’s finances are being merged by the government with your finances for tax purposes whether you like it or not, and too darn bad if you don’t like it. The law is the law. Wise tax planning is mandatory unless you want the government to take you to the cleaners.
This is for real. For queers there’s been a mammoth shift in the tax laws with gay marriage legalized, whether you’re living common-law or officially married.
Know that Revenue Canada does not mess around. They couldn’t care less which gender your spouse is or whether you’re married or not. Doesn’t count any more.
If you’re living with your lover, you’ve got a spouse. And a spouse is a spouse is a spouse. End discussion. Revenue Canada will want their money under the new rules. Get your cheque book out. Make the cheque payable to The Receiver General For Canada. Be prepared to say “Ouch!”, just like the married straights do. (Remember how your parents complained about taxes?)
My advice? If you’re living in Canada with your lover and you’re not married, start shopping right now for a queer-friendly tax advisor. You may well regret it if you don’t. Revenue Canada’s openly stated policy is always to interpret Canada’s ridiculously complex tax laws in favour of Revenue Canada. Surely you understand what that means.
There are some additional frightening implications to this new legislation. Let’s look at another hypothetical situation. Ms A is sharing a two-bedroom apartment with Ms B, and they are just roommates. No problem, separate tax forms, separate finances. But what if after a couple of years of living together, Ms A and Ms B start spending the occasional night together, but otherwise sleep separately. At what point do they cease being roommates and start being spouses?
The law doesn’t say. And in Canada that means the courts will ultimately decide in a test case. And the way a test case happens is if Revenue Canada rules they are spouses and the two persons challenge the ruling in court. And why would Revenue Canada make such a ruling? Amongst other things, Revenue Canada is allowed to investigate alleged breaches in the tax laws. Would Revenue Canada investigate whether two gay roommates are sleeping together and how often? The law now allows it.
Rev Canada makes no bones about investigating taxpayers if they think the taxpayer is dodging taxes. If they thought there was money in it for the government, of course they would investigate. That’s their job, and they have a well-earned reputation for diligence.
Understand that the problem here is not Revenue Canada ensuring taxpayers pay their taxes. The problem is how one might go about determining if two gay roommates are or are not sleeping together. Parliament, in its usual blind stupidity, gave Revenue Canada no guidelines for such an investigation into queer lifestyles. So just how would Revenue Canada investigate? We don’t know. And would such an investigation constitute an invasion of privacy? Wait for the test case.
And the test case would be a legal nightmare. The two persons would be obliged to prove they are not sleeping together, close to an impossibility in a court of law. Understand that a quirk in Canadian law means that if Revenue Canada alleges you have done something improper in taxes, it is up to you, the taxpayer, to prove your innocence. Presumption of innocence in Canada only applies to criminal law, not tax law. Under Canadian tax law, you are guilty as charged in tax matters until you prove to the court that you are innocent. (Are you still sure you want that hot trick to move in?)
Yet since 1967 the official policy of the Canadian government is that the government has no business in the bedrooms of the nation. So what in the world is Parliament doing barging into the bedrooms of the nation by writing a piece of flawed legislation such as this? My view is that it’s none of the government’s darn business what two adults do (or don’t do) in the privacy of their own home. I sincerely hope the courts strike down this poorly drafted, wildly intrusive, and completely unnecessary piece of legislation. (Note to Rev Canada: I’m single. I live with my cat, so I’m not the test case.)
BTW, to readers from outside Canada: with Canada’s tax law now changed to treat common-law gay relationships the same as married couples, and the government now empowered to charge into the privacy of the nation’s bedrooms to see who is sleeping with whom, there’s a moral to this story. We wanted marriage in Canada. We got it. The whole nine yards, tax included. To my fellow queers in other countries begging to get married. I say this: Be very careful what you pray for. You just might get it.
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How to get married in Canada
Well, if you’ve gotten this far into this webpage, I guess I haven’t scared you off from marrying the hot little number you call the love of your life, have I?
First of all, if you live in the United Kingdom (England, Scotland, Wales, Northern Ireland), then click here for information on civil partnerships in the UK. For residents of the UK, this is a much better option than a Canadian marriage.
Additionally, if you are from Australia, good news. Ontario does not require you to be certified as single by the Australian government, although you have to answer the question of your current marital status on the Ontario marriage licence form. (Note to non-Australians: The homophobic Australian government, in a bid to prevent gay marriages abroad by Australians, refuses to certify an individual’s single status if the betrothed is known to be gay. Some European countries which do same-sex marriages require this certification for foreigners. Canada does not.)
But if your place of residence is Canada (or perhaps you live in a country where gay marriage is not yet allowed), then let’s line up the Canadian hoops and start jumping through them, for indeed marriage in Canada is a bit of a dog and pony show.
Since we queers are not yet culturally programmed to do the marriage routine automatically, I guess I better tell you how marriage is done here in Canada’s glorious Province of Ontario (which includes Toronto), just in case you’re still all fired up and determined to go ahead with this. Note that each province in Canada has its own rules for marriage, so the Ontario rules will not apply elsewhere. (I happen to live in Ontario, so it was easy for me to track down the Ontario rules for this webpage.)
If you’re planning to get married someplace other than Ontario, you’ll run into a different set of rules. Unlike Ontario where you can get married on the spot, Quebec, for example, requires that you wait a month after receiving a marriage licence before you can get married. For another example, click here to view the British Columbia government’s gay marriage webpage. You’ll see for yourself how different things are in BC. Other provinces will be equally diverse in their rules for getting married.
This has nothing to do with sexual orientation, BTW. It’s just the way Canada is. Each province has its own unique way of doing anything, regardless of what it is you’re talking about — driver’s licence, real estate, liquor laws, health care, you name it. Don’t let Canada’s low-key culture fool you. It’s a very quirky country, with each province running its own autonomous show, blissfully and sometimes wilfully oblivious to any of the other provinces. It is part of the Zen of Canada: both a national strength and weakness at the same time.
Anyway, to get yourself officially married up in the province of Ontario, you must understand that you are dealing with the government, so be sure to prepare yourself. The first thing you must do is (Surprise !!) fill out a form.
Form 11018(03/04) to be exact. This is an application form for your Ontario marriage licence. Click here to download a copy in pdf format. This form has to be submitted in person by you two love birds along with all of your paperwork at your friendly local municipal office in Ontario. Always bring along more documentation than you need. Remember that governments require an abundance of paperwork from you to justify both your existence and theirs.
If all your documentation is in order, you often can get your marriage licence in Ontario the same day that the two of you apply and get married immediately afterwards, assuming you’ve never been divorced.
If you have been divorced, well, ahem, this is the government, so extra paperwork is required, and that can delay the issuing of a marriage licence. And double bummer if you’ve got a non-Canadian divorce, dude. Significant additional paperwork is required for that situation, and you have to wait a lot longer, like many weeks, to get your Ontario marriage licence because it requires special permission from the provincial government to get hitched a second time with an out-of-Canada divorce. For details, check out the provincial government’s marriage webpage for a listing what paperwork the provincial government will need if you’re divorced.
In addition, click here for the City of Toronto’s official marriage webpage which has the detailed information you need to apply for a marriage licence in the city of Toronto. There’s a few hoops to jump through at city hall, too.
In the midst of all this bureaucratic red tape, please keep your sense of humour. For instance, consider the Ontario marriage licence form. It used to list Bride and Groom, but then the government updated the form and now you have an “Applicant” and a “Joint Applicant”. Enjoy what happens next. The two of you have to decide who is the “Applicant” and who is the “Joint”. (Gay men will have fun with this, but I have my doubts about the lesbian reaction.)
Okay, having diligently persevered through the brambles of blissful bureaucratic balderdash, you now have your marriage licence. Next, all you have to do is find somebody to do the marriage itself. That could be a judge or a justice of the peace if you want a civil marriage, but you have to book ahead at Toronto City Hall because it’s getting busy with all us queers getting hitched these days. Waiting time varies. Phone Toronto’s city hall wedding chambers at 416-392-7036 for the latest information on openings for civil ceremonies or visit their webpage.
Ceremonies usually last about a half hour, and that’s it. You’re married.
Ta-dah.
The next step is the party and your honeymoon. Which brings you to your next big decision. Who is going to carry whom over the threshold? That one is up to you. Incidently, if this is sounding like Toronto has become the Las Vegas of the queer world, well yes, that is exactly what has happened. A small cottage industry catering to facilitating gay weddings in Toronto has already sprung up, and City Hall itself is even (appropriately) located on Queen Street. I’m also waiting for the TV commercial:
“Cost of a Toronto marriage licence: $110.
Cost of a Toronto civil wedding: $155.
Cost of an Ontario Marriage Certificate: $22.
Having a same-sex partner worth marrying: Priceless.
There are some things money can’t buy.
For everything else, there’s MasterCard.”
In addition to MasterCard, Toronto City Hall also takes Visa, cash, debit cards, certified cheques, and money orders.
Now think about this for a minute. We queers can even get married on our plastic these days. How times have changed . . .
Anyway, there’s no law which says you have to do a quickie civil wedding. Religious weddings are now legal, too, but so far most religions in Canada are howling and screaming hysterically at the federal government for allowing gay marriage. These people seem to have forgotten that we queers are the products of straight religious marriages, but that’s a topic for a different webpage. Nonetheless, Toronto’s Metropolitan Community Church and a few United Church congregations and Unitarian congregations are doing queer weddings, but count on a much, much longer wait from these churches if you’re from out of town.
Okay, so you’ve now got yourself married (Congratulations), and you may even have a “Record of Solemnization of Marriage” from whomever it was who officiated at your ceremony. Be sure to frame that “Record of Solemnization of Marriage”, because it’s the official signed souvenir of your nuptals.
However that’s not the official marriage certificate. Not a bloody chance. The government is not done with you yet, duckie. There is, gasp, still more paperwork and forms to deal with. First of all, while you’re off honeymooning, whoever it was who did your marriage has to submit their documentation to the Office of the Registrar General in Ontario for registration of your wedding, which happily is their problem and not yours.
Once that paperwork has been processed, and it takes about three months, then you can pay your fee and apply for a copy of your official Certificate of Marriage. Officially, the government recommends waiting at least 12 weeks after your wedding to apply, but a growing backlog of paperwork in the ministry now delays making the application to at least 18-20 weeks. As I said earlier, this is the government we’re talking about, and Ontario is no different from other places in the world. Our swivel servants don’t rush anything either.
Time was when you had to download the form from the government website, fill in the form, and then mail it back to the government. But wonder of wonders, somebody in government discovered they could save some money (and extend their perpetual coffee break) by allowing the newly-weds to fill out the marriage certificate form online. Honest, they actually figured this one out on their own. Don’t believe me? Click here and you will be whisked to the government website where you can fill out the form yourself.
Of course the real reason you fill out the form online is that the old form which you used to download was a bit of a bureaucratic embarassment. Ontario used to use the same form to apply for either a marriage certificate or a death certificate. That’s right, the same form.
One can only imagine the delightful moments which resulted to those who filled out the old form incorrectly. Here the happily married, but bureaucratically inept couple, breathlessly opens the envelope which they anticipate certifies their nuptals only to discover they have been declared legally dead. Or even better, the bereaved family opens the envelope thinking they have certified the passing of their dear departed Uncle Fred only to discover that even though he’s just been buried he’s just gotten married. (You are still wondering why it is Canada produces some of the world’s best comedians?)
After several years (yes, years) of this, the government realized that perhaps a joint form for marriage and death certificates might not be the best idea.
It was the summer of 2006, and the government created (are you ready for this?) a new separate form for a marriage certificate. Whew. I’ll bet the earth even moved for this event. But this being the government, you just know they would blow it, and rest assured, dear reader, the government did not disappoint us. They did, in fact, blow it just beautifully.
Here it was three years after Ontario had legalized gay marriage, and the new marriage certificate form required that applicants had to fill in separate boxes with the names of the bride and the groom. Keep in mind this is from the same government which just months earlier had cleaned up the marriage licence form to eliminate the labels “bride” and “groom”.
Did anyone in the Ontario government see the absurdity in this? Not right away. This is, after all, the government.
Nonetheless after several months one of the low-wattage light bulbs in the bureaucracy realized that maybe this was not the optimal way to present the form. And so it came to pass that by the end of 2006 the form was amended (again) so that the newly-married would now apply as either two grooms or two brides for their marriage certificate. And with a twist of what must surely have been unintended whimsy, the happy couple themselves got to decide whether they were two brides or two grooms. (nudge, nudge, wink, wink)
Alas, that didn’t last either, and by the end of 2007, the government gave up and now you apply online, rather than download a form. I guess it was just too demanding of bureaucratic intelligence (oxymoron, perhaps?) to come up with a form which could withstand the whithering glare of public scrutiny.
At any rate, be patient. Once you submit your form and pay your fee, it will be a few more weeks or even months before the Office of the Registrar General of the Ministry of Consumer and Business Services for the Province of Ontario, located in Thunder Bay, Ontario, sends along your official Certificate of Marriage. That’s the certificate you lock away in a safe place.
Name changing is *not* mandatory as a result of a Canadian wedding. However, for Canadian residents who wish to do a name change as a result of a wedding, note there is either a long or a short form of marriage certificate which can be requested and issued. Especially if you are from a province other than Ontario be in touch with the Ministry office first (the phone number is on the website) to ensure you get the correct certificate which is supposed to be used for subsequent name changes with health card, SIN, driver’s licence, etc. Enquire about whether the short version (which is cheaper) is appropriate for name changing in your province. Don’t assume anything. This is the government. Call first.
That pretty well wraps up the official part of marriage. (The unofficial stuff is yours to sort out, like who gets to change the kitty litter today.) But as you can see, the world of marriage in Canada includes strange and surreal rituals involving the government and its paperwork. And yes, even the straights have to go through all this as well. The difference for them is that they’ve been brainwashed to think all this is “normal”.
Yeah, right. Like all this, is like, normal.