Feb 25, 2013

Ontario ruling supports same sex right to marry abroad

In January 2013, an experienced Ontario family court judge, the Honourable Madam Justice Mesbur, ruled that a British civil union between a same sex couple would be recognized as a marriage in Ontario for the purposes of property division, support and, ultimately, divorce.

A conservative hold out, the United Kingdom does not permit same sex marriage. Same sex couples are, however, are offered the parallel regime of being permitted to enter into civil unions. These civil unions, offered only to same sex partners, provide them with virtually all of the rights and responsibilities accorded to married couples other than the name.

In Hincks v. Gallardo this case, Wayne Hincks and Gerardo Gallardo entered into a civil union in Britain in October of 2009. On January 15, 2010, the couple relocated to Toronto. After their relocation, the parties’ relationship slowly began to deteriorate. In February 2011, Mr. Gallardo filed for divorce in Ontario, but then withdrew the application. In March 2011, Mr Hincks commenced a proceeding. In response, Mr Gallardo took the position that the parties were not married and, as such, the application disclosed no cause of action. Mr Hincks then asked the Ontario court to find that the civil union qualified as a marriage and could be dissolved according to Ontario law.

The sides were drawn. The Attorney General of Canada sided with Mr. Gallardo and argued that the only available relief for Mr Hincks was in England under the Civil Partnership Act. Since the British legislation made it clear that a civil union was not a marriage, who was Canada (a colony at best) to argue?

The sides were drawn. The Attorney General of Canada sided with Mr. Gallardo and argued that the only available relief for Mr Hincks was in England under the Civil Partnership Act. Since the British legislation made it clear that a civil union was not a marriage, who was Canada (a colony at best) to argue?

Justice Mesbur issued a declaratory order that the civil partnership was a marriage and that, as such, the parties were to be considered spouses as defined by the Ontario legislation. Her Honour’s decision was primarily based on a refusal to compound or condone the discriminatory denial of marriage to same sex couples in Britain:

The parties entered into a civil partnership in the UK. They could not choose to get married in the UK because that country does not permit same sex couples to marry. That policy position runs contrary to Canadian public policy because Canadian law finds discrimination on the basis of sexual orientation prohibited under the Charter. Canadian law specifically holds that only equal access to marriage for civil purposes would respect same sex couples’ right to equality without discrimination. Canadian law specifically holds that a civil union, as an institution other than marriage, would not offer same sex couples that equal access and would violate their human dignity, in breach of the Charter.

Failing to recognize this UK civil partnership as a marriage would perpetuate impermissible discrimination, primarily because in the UK these parties could not marry because of their sexual orientation, but had to enter into a civil partnership instead.

Their union is a lawful union under the laws of the UK. Their union is of two persons, to the exclusion of all others. In the simplest terms it meets the statutory definition of marriage in Canada. Because these parties could not marry in the UK, but had to enter into a civil partnership there instead, they have suffered discrimination on the basis of their sexual orientation.

In the particular circumstances of this civil partnership, where the parties were denied the choice to marry in the place where the union was celebrated I would perpetuate impermissible discrimination if I failed to recognize their civil partnership as a marriage.

This ruling continues the proud Ontario tradition (does a mere decade qualify as a proud tradition? ) of respect for freedom of choice and recognition of all kinds of relationships that started with our very own 2003 right to marry case Halpern et al. It was heartening to read Justice Mesbur’s decision confirming the Court’s commitment to the express values of equal access to marriage for all couples, same sex or not. We’ve come a long way, baby.

Photography by Mike Licht

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