Hincks v. Gallardo: in same-sex unions, the real issue is choice

Earlier this month, the Ontario Superior Court of Justice released a ground breaking decision regarding the interpretation of the Civil Marriage Act. The new, ever so inclusive definition of ‘marriage’ makes clear that in Canada, we place importance on offering same-sex couples that remarkable thing called, a choice.

The status of same-sex marriage is unfortunately still murky waters in many jurisdictions. Ever so slowly more and more places have come to recognize same-sex marriage, or unions which include a same-sex couple. However, this ‘piece-meal marital inclusiveness’, has caused controversy and inevitable debate when it comes to the other side of the coin: divorce and separation.

An English same sex couple, Wayne Hincks and Gerardo Gallardo found themselves in the midst of the divorce debate, as it relates to the jurisdictional discrepancies regarding legal recognition of same-sex marriage.  This matter was so controversial and has such great implications on Canada that the Attorney General of Canada and the Attorney General of Ontario got involved.

In 2009, Hincks and Gallardo entered into a Civil Partnership under the Civil Partnership Act in the United Kingdom. This partnership affords same-sex partners the same rights and responsibilities as those found in a civil marriage. There is no same-sex marriage in the UK.

Both parties having Canadian citizenship moved to Toronto in 2010, at which time their relationship hit troubled times. In early 2011, the couple decided to separate.

The problem for the Superior court however, was determining how to treat the dissolving Civil Partnership on Canadian soil? After all, the Applicant spouse, Hincks, was asserting claims for: divorce, equalization of net family property and spousal support. The Respondent, Gallardo, claimed no marriage therefore no cause of action.

Experienced family law practitioners were perplexed, but took sides; the Attorney General of Canada and the Attorney General of Ontario, took opposing positions-all eyes were on the matter, knowing it would be difficult to hash out but regardless of the outcome, ground breaking.

The Attorney General of Canada along with Respondent Gallardo, asserted that Hincks should seek relief in England under the Civil Partnership Act. It was plain as day to them; if the Civil Partnership declares the union to not be a marriage, guess what? It’s not a marriage!

The issue was not so simple to Applicant Hincks and the Attorney General of Ontario. The rights and responsibilities created by the Civil Partnership are identical to a marriage, so why get caught up in definitional technicalities? In form and function, it’s a marriage!

In deciding the matter Justice Mesbur looked back to the Halpern case, whereby same-sex marriage was recognized in Canada. As established in Halpern, the important factor when dealing with the rights of same-sex parties, is that of freedom of choice.

Justice Mesbur placed an emphasis on the fact that in the UK the parties did not have the choice to marry, but in efforts to solidify their relationship, the best that was offered to them, they took, which was the Civil Partnership.

It is well known that in Canada, with credit to the Charter of Rights and Freedoms, we prohibit discriminating based on sexual orientation. To Justice Mesbur, not recognizing the Civil Partnership as a marriage, when the parties had no choice but to enter into one, would be ‘perpetuating impermissible discrimination’. Mesbur further recognized that the Civil Partnership met the statutory definition of marriage in Canada.

Accordingly the Civil Partnership was declared a ‘marriage’ as defined in the Civil Marriage Act, and the parties were declared spouses as defined by the Divorce Act and Family Law Act. Hincks was able to proceed with his claims.

The take home message is that the courts are willing to assess what options were offered to the same-sex parties in their previous jurisdiction, and analyze the nature of the union. The courts are showing a real commitment to avoiding unjust exclusion from relief in matrimonial matter.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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