Jurisdiction Shopping…in a Teapot!

Well, what a storm can be ignited when a journalist — and then more journalists, and then bloggers, etc. — fails to understand a point of law. Yes, today was all about the evil plot of our dreaded Conservative government to nullify the marriages of all the same sex couples who have been married in Canada since such marriages became legal here. For a short period, some extra panicky people opined that the government was rethinking the law itself (going back on a promise to let it be) or even nullifying all the same sex marriages of Canadians, too.

Now, I am not one to overlook an evil Tory plot, but this is not one.

From what I hear on the radio (and we all know how thoroughly researched that must be!), the argument about the invalidity of the marriage of two women — one from Florida and one from England — was raised by one of the women's lawyers in the context of their trying to get a divorce. The problem with their getting a divorce in Canada is that one has to live for a year in the province in which one applies for the divorce before filing, and these women have never lived here and have no intention of doing so. The lawyer then called in a lawyer from the Department of Justice, presumably as an expert witness.

Let's step back from the particular case and take a little look at private international law. You can't go jurisdiction shopping to avoid the effect of the laws of the place you live. If you want to marry your first cousin in a state or a country that doesn't allow you to do that, you can't run off to somewhere that does, get married and return to live as a married couple. The place whose law you would have broken if you had conducted the ceremony within its borders will not recognize your marriage (or therefore grant you a divorce or an annulment).

If there were no legal barrier to your marriage at home, but you decided to have a "destination" wedding, you wouldn't have this problem: your marriage would be as valid at home as it was at your exotic destination. The difference between this case and our divorcing lesbians being that you would not have been running to another place to escape the narrow-mindedness of your laws at home.

The other element you need to bear in mind in these matters is the attachment of laws to the people who live in and intend to live in a particular jurisdiction. In the wild romance of getting married, few people actually consider the financial implications of their adventure. For those who do not think to draw up a marriage contract (colloquially known as a pre-nuptial agreement, but I won't go into why that is sometimes inaccurate), the laws of the place they are domiciled (living, intending to live) set out the rules of property division should the marriage unthinkably come to an end. If the two spouses come from different places, the law that will apply will be the law of the place of their first common domicile.

In Québec, we had a family law reform that now makes it impossible for someone getting married to opt out of an equitable distribution of basic family assets in the event of the dissolution of the marriage. You wouldn't be able to escape this rule by running off to Tahiti to get married: the laws of Tahiti would only apply to you if you lived there or established you first common home there with the intention to stay.

I had a law professor at McGill who had developed a certain expertise in the presumptive matrimonial regimes of Moroccan Jews (getting divorced here, but had been married there while living there, so those were the rules that applied to them). This is about the expectations and understanding one can have of the laws in the place you live, an appreciation you cannot have of an exotic destination you go to for a fantasy wedding.

So this point of law is not surprising: if you came to Canada to get married because the laws of the place you really live won't let you get married, your marriage is unlikely to be seen as valid. If you came for your wedding and liked it (and the fact that it was even possible here, as opposed to where you come from) so much that you wanted to make a home in Canada together, there would be no problem with the validity of your marriage.

It's because you tried to do an end run around your own backward laws that you find yourself in a peculiar situation of having wed, but not having your marriage recognized at home. That is an evil right wing plot, but it's one that belongs to your home state/country, not to Canada.

I prefer to blame our evil right wing government for the things it is actually doing with which I don't agree, and there is no shortage of those.

The Old Man and the T…V

How about a little anecdote from my recent visit with my family over the holidays? Well, if you insist…

Let's start by stating right out there that I very much enjoy visiting my family, and will never understand those who don't get along with their siblings and parents. But that would be my apparently bizarrely idyllic childhood speaking. The only regrets from this year were that my oldest sister couldn't join us and that my brother and sister-in-law couldn't stay for the whole time the others were there. I did, however, get the chance to know my niece-in-law a bit better, which I am very glad to have done! We accomplished this over a very cutthroat game of Pictionary (boys versus girls) and even managed to defuse our most competitive moments before anyone's evening got ruined!

So what's with the Old Man?

My father has been fighting a long battle with squirrels. These are not the imported-from-Europe type that overrun city parks in the east where I live. They are the little red ones that naturally inhabit the forests of the west…and also naturally raid the various bird feeders that Dad stocks with seeds to draw an amazing variety of rather impressive birds (like the Stellar's Jay pictured here in a photo stolen from the internet).

Dad also gets pileated woodpeckers, which are scarily huge birds!

But I digress. The squirrels had another bad habit that my father is — er — helping them with. They managed to bypass various security measures to take up residence inside his roof, which is intolerable, so he was helping them to move to more appropriate quarters for rodents…the landfill!

Living in the country and away from such amenities as cell phone coverage, the internet and cable TV, Dad does what others in his situation do: he has a satellite dish to capture TV signals that offer him way more choices than I get on my basic cable plus service at home.

As we gleefully watched reruns of everything during the holiday season, something annoying started to happen. The satellite was blinking off, robbing us of our sedentary pleasures! Sometimes the blinking was so extreme that we couldn't even get through a 30-second commercial without as many as four or five blinks off. And we do love our commercials, so that was extremely annoying.

The theories abounded. Dad opined that there seemed to be a particular temperature range where there were more problems with the TV: above or below, things worked just fine. My brother's theory was much more entertaining (getting back to the squirrels). He painted a picture of a lonely squirrel sitting in the satellite dish, holding two ends of the TV cable and cursing down the hill. "You've killed my whole family! How do you like this TV reception, Old Man?!"

While that got us laughing through the blue screen times, it wasn't until my little sister (she's only 49, after all) found a loose connection and tightened it that we got back to watching such important works as Jerry Springer's "Baggage" on the tube.

Still can't keep myself from chuckling as I think about what the evil combat squirrel might do next to make Dad's life a living hell!

Happy New Year 2012

Well, here we go again.

Harold Camping's predictions of the Rapture on two occasions in 2011 didn't really pan out, but we now have that Mayan calendar thing to get through this year. Unless the Mayans pull it together and issue a new calendar before the end of the year....

I thought I would start the year with a word of caution for anyone who might think it is a good idea to ring in 2012 by participating in a Polar Bear Swim. Here is a polar bear swimming (thanks to David for the image!). I don't think you ever want to be this close to one, unless it is your final wish.

Enjoy your year safely!