Same-Sex Couple Marriages in Canada

FREQUENTLY ASKED QUESTIONS
U.S. COUPLES WHO ARE CONSIDERING GETTING MARRIED IN CANADA

By J Craig Fong, US Immigration Attorney*

PREGUNTAS HECHAS FRECUENTEMENTE
POR PAREJAS DE LOS ESTADOS UNIDOS QUIENES ESTÁN CONSIDERANDO CASARSE EN CANADÁ

Many same-sex couples in the United States are considering getting married in Canada. While this is now an option, it is important for couples to understand that getting married in Canada will not necessarily guarantee you and your partner the rights and privileges of different-sex married couples in the U.S. and may have significant tax and other legal implications. Although this is still a gray area with many remaining uncertainties, here are preliminary answers to some frequently asked questions:

Can same-sex couples from the United States marry in Canada?
Yes. All provinces in Canada now permit same-sex couples to marry on an equal basis with different-sex couples. If you are thinking of getting married in Canada you should visit the website of the province in question to determine residency requirements (if any).

Are there any other countries that permit same-sex couples to marry?
Yes. At the time of writing the Netherlands and Belgium also permit same-sex couples to marry; however, both of those countries have strict residence requirements. In the Netherlands, only couples in which one partner is a citizen of the Netherlands or in which both partners reside in the Netherlands may marry. In Belgium, only couples who live in a jurisdiction that also permits same-sex couples to marry are permitted to marry.

Are there any states in the U.S. that permit same-sex couples to marry?
No, although lawsuits in which same-sex couples are seeking the right to marry are pending in Massachusetts and New Jersey. For more information on these cases, see http://www.glad.org; and http://www.lambdalegal.org. For more information on winning the freedom to marry, see http://www.freedomtomarry.org.

How do we go about getting married in Canada?
To marry in Canada, you will need to obtain a marriage license, locate an authorized person to perform the ceremony, and arrange for two witnesses to be present during the ceremony. No medical tests are required. For more information on the practical steps involved in getting married in Canada, see
http://www.gov.on.ca/MBS/english/myontarioweb/married.html
or
http://www.infoniagara.com/services/weddings/fallsview/faq.html#how

If my partner and I marry in Canada, will our marriage be valid in the U.S.?
Yes, your marriage will be valid; however, discriminatory marriage laws in the U.S. will still exist. Some state and local governments will acknowledge your marriage, at least for some purposes. Others will not. The same is true for private employers and businesses. In addition, in 1996, Congress enacted a law stating that for all federal purpose, the term “marriage” means only a marriage between a man and a woman. Because of this law, the federal government will almost certainly refuse to respect your marriage.

In practical terms, this means that at least in the short run, same-sex couples who marry in Canada and return to the U.S. will confront many legal questions and uncertainties. You may be treated as married by some governmental entities and as unmarried by others, which may create problems.

Whether to marry is a deeply personal decision. Couples may choose to marry or not to marry for a host of different reasons. If your primary reason for marrying in Canada is to gain legal protections in the U.S., you should be aware that your marriage may not be fully respected here and very likely will not be respected by the federal government.

If my partner and I marry in Canada and later wish to separate, how do we obtain a legal divorce?
If you live in a state that honors your marriage, you will also be able to apply for a divorce in that state. If you live in a state that does not respect your marriage, however, it is doubtful that you will be able to obtain a divorce. To obtain a divorce in Canada, at least one partner must reside there for one year before a Canadian court will have jurisdiction to grant the divorce. (In contrast, you do not have to reside in Canada to marry there). Many states have similar residency requirements for divorce. Thus, even if you can identify a U.S. state that will permit married same-sex couples to obtain divorces, you may have to move to that state to be eligible to petition for a divorce – which may be a practical impossibility for many couples. In short, some couples who marry in Canada may find themselves in a situation where they are unable to obtain a legal divorce. If so, this would mean that even though you may separate, your marriage will remain valid and you will continue to have certain legal rights and responsibilities with regard to each other. This difficulty is yet another reason why couples should think very carefully before traveling to Canada to marry.

My partner is from another country. Will getting married in Canada permit her to stay in the United States?
No, and, depending on your circumstances, getting married in Canada may even lead to your partner’s deportation from the U.S. Under a federal law misleadingly called the “Defense of Marriage Act,” the U.S. government will not respect marriages between same-sex couples, no matter where they are enacted. Because of this law, the Bureau of Citizenship and Immigration Services (BCIS, formerly known as the INS) will not honor your marriage to your partner. Instead, the BCIS may use the fact that you and your partner married in Canada to deport your partner, if she is here on a non-immigrant visa, on the ground that she does not intend to return to her home country. Getting married is especially risky for same-sex bi-national couples. Before making any decisions about marriage, consult a competent, qualified immigration attorney who is knowledgeable about LGBT issues for individualized advice about your situation. For more information on this and other immigration-related issues, see http://www.lgirtf.org and http://www.loveseesnoborders.org.

Will my employer respect my marriage?
Some employers will; others will not.

If my employer refuses to honor my marriage, do I have any legal recourse?
Depending on where you live, you may have some legal basis to compel your employer to treat you equally to other married employees. No matter where you live, however, it is almost always better to exhaust every possible remedy before filing a lawsuit against your employer. Litigation is expensive, stressful, time-consuming, and often fails to secure the desired results. Before going this route, consider other options, such as talking with your employer, joining with other employees to educate the employer, or working with your union to negotiate recognition of equal benefits for all employees, regardless of marital status or sexual orientation. If you run into problems with your employer and would like our assistance, please contact us at 415-392-6257 or info@nclrights.org. For more information on workplace issues, see http://www.prideatwork.org.

If my partner and I marry in Canada, are we required to file joint federal and state income taxes?
The true answer to this question is, no one knows. While there are many legal uncertainties for same-sex couples who marry in Canada, how to deal with federal and state income taxes is probably the area of greatest uncertainty. On the one hand, married couples are legally required to pay taxes as a married couple: if you are married, filing your taxes as a single person is against the law. On the other hand, current federal law prohibits the federal government from respecting the validity of marriages between persons of the same gender. In addition, many states require that you use the same marital status classification for your state incomes taxes as you use for your federal income taxes. This situation creates a double-bind for same-sex couples who marry in Canada.

From a legal perspective, there is no clear-cut answer to this dilemma. Some legal experts are recommending that same-sex couples who marry in Canada file as single (or, where appropriate, as head of household), but indicate that they are married to a same-sex partner on the form or in a cover letter. Others are recommending that married same-sex couples file two sets of tax returns (one as two single individuals, and one as a married couple), pay whichever is higher (to avoid tax penalties), and include a cover letter explaining that you are a same-sex married couple and are attempting to comply with all applicable federal laws. Others are recommending that married same-sex couples file as single with a cover letter indicating that they married in Canada and then file for a refund (if appropriate), on the ground that they are married and should be treated as such – recognizing, however, that the federal government is unlikely to accept this argument. No matter which course you take, there is some legal risk involved. Before making a decision about this issue, you should consult a tax attorney or an accountant if you can afford to do so.

If my partner and I marry in Canada and then have children, will we both be legal parents?
The answer depends on whether you live in a state that respects the validity of your marriage. If you do, then both you and your partner would be considered legal parents under most state’s laws. Even if that is the case, however, you should ALWAYS consult a family law attorney in your state and get a court decree stating that you are both legal parents. If you do not live in a state that respects the validity of your marriage, or if this question is not clear in your state, then you should NOT rely on your marriage to secure your parental rights. The safest course – regardless of whether you are married or not – is to consult an experienced family law attorney where you live and take whatever steps are necessary to give both parents the greatest legal protections. For more information about laws affecting LGBT parents in your state, contact NCLR at 415-392-6257 or info@nclrights.org.

If my partner and I marry in Canada, should we describe ourselves as married on applications for jobs, health insurance, car insurance, credit, mortgages, etc.?
Yes, of course. You are legally married, and you should describe yourself accordingly. You should be aware, however, that discriminatory laws and practices still exist in all of these areas. Thus, the fact that you are legally married will not necessarily guarantee that you will be afforded the rights of a married couple by employers, insurers, credit companies, mortgage companies, etc. If you encounter problems in these areas, contact NCLR or another LGBT legal organization for advice.

If my partner and I marry in Canada, will it affect my eligibility for public benefits or for continuing alimony from a prior marriage?
Yes. If you are legally married, it is likely that your spouse’s income will be taken into account in calculating whether you are eligible for public benefits. This may be true even if your marriage is not respected for other purposes. And it is also likely that you will no longer be entitled to alimony from a prior marriage.

How can I find out whether my city or state will honor my marriage?
Unfortunately, there is no simple way to be sure which cities and states will honor your marriage and which will not. In addition, some jurisdictions may honor your marriage for some purposes, but not for others. Generally speaking, localities and states with homophobic laws and policies are less likely to respect your marriage, and vice-versa. For more information on laws affecting same-sex couples in specific cities and states, contact NCLR at 415-392-6257 or info@nclrights.org.

If my partner and I marry in Canada, should we also take other steps to protect ourselves?
Yes. Even if you and your partner marry, you should create a safety net by executing additional documents that will protect you to the greatest extent possible in the event that your marriage is challenged or not respected. At a minimum, you should have a will, powers of attorney for health care and finance, and a partnership agreement. For more information, consult Lifelines: Documents to Protect You and Your Family in Times of Trouble, NCLR’s new publication on partnership protection documents, available at http://www.nclrights.org. Where possible, couples with children should also secure adoptions or court decrees of parentage. Where these are not available, couples should consult with a family law attorney to protect both parents to the extent possible under your state’s laws. For more information on adoption and parentage laws in your state, contact NCLR at 415-392-6257 or info@nclrights.org.

If my partner and I marry in Canada and then face discrimination in the U.S., what should we do?
Same-sex couples who marry in Canada and return to the U.S. are almost certain to face at least some discrimination from employers, businesses, or governmental entities. You can protect yourself to some degree by being prepared to educate, advocate, and work with others in your community to change discriminatory policies and practices. In most cases, filing a lawsuit is not the most effective strategy, either for protecting your family, or changing the law. For education materials, talking points about marriage equality, and tips about how to advocate for yourself, contact your statewide LGBT group or one of the national advocacy groups, such as Freedom to Marry (http://www.freedomtomarry.org), the Human Rights Campaign (http://www.hrc.org), the National Gay & Lesbian Task Force (http://www.ngltf.org), or NCLR (http://www.nclrights.org). If you are considering filing a lawsuit, contact NCLR (http://www.nclrights.org) or another LGBT legal group for assistance.

* J Craig Fong is a partner of the Pasadena Fong & Aquino. He is an attorney with more than twenty years of experience. Admitted to practice in California, Illinois, and before the Supreme Court of the United States, his immigration law practice focuses on family immigration, employment-based immigration, HIV and sexual orientation-related asylum, and US-Canada relocation issues. website: www.fongandchun.com