Court Cases & Orders

Granting a Canadian Divorce to a Foreign Same-Sex Couple – Are They Even “Married”?

Written by Russell Alexander / (905) 655-6335

An interesting Ontario case decided last week untangles the question of whether – for the purposes of divorce – a same-sex union in another country can constitute a “marriage” in Canada.

The couple, two men named Wayne and Gerardo, met in 2009 and went through what is known as a “civil partnership” ceremony in the UK, in keeping with legislation devoted specifically to recognizing same-sex relationships in that country. (The term “marriage” in UK law is still specifically reserved for opposite-sex relationships).

They complied with all the UK procedural requirements, and exchanged rings.

When they decided to move to Canada (where Wayne was originally from), Gerardo obtained a UK national identity card which identified him as “spouse/partner”. Upon inquiring at Toronto City hall about the prospect of having a civil marriage ceremony here, they were told that as far as the Registrar was concerned it was unnecessary, since they were already in a UK civil partnership.

They separated in early 2011, and Wayne filed in Ontario for a divorce. He claimed equalization of net family property, and spousal support pursuant to the province’s Family Law Act.

However, Gerardo countered by claiming the parties were not actually married – i.e. that “civil partnerships” do not constitute “marriages” in the UK, much less in Canada. As such, he asserted that an Ontario court has no authority to grant a divorce or to grant equalization under the Ontario Family Law Act unless the parties are married spouses first.

Accordingly, and as a prerequisite to a divorce, Wayne applied to the court for a declaration that the union between him and Gerardo was a “marriage” for the purposes of Canadian family law.

The court observed that in Canada, “marriage” is defined by the Civil Marriage Act as “the lawful union of two persons to the exclusion of all others.” Wayne and Gerardo’s civil partnership met that criterion. Moreover, Canadian law was entitled to treat a foreign civil partnership as a “marriage” if it saw fit, and there was no need to force Wayne and Gerardo to have their civil partnership dissolved using the procedures established in the UK.

To resolve the question the court had to take into account the legislative and policy framework for marriage and civil unions in both Canada and elsewhere. In particular, the court recognized that the law is possessed with the flexibility necessary to meet the changing realities of Canadian society.

With that context in mind, the court declared that Wayne and Gerardo’s civil partnership could constitute of “marriage” under the Canada Civil Marriage Act. To hold otherwise, it said, would be to perpetuate discrimination and to “run contrary to the express values of Canadian society, expressed in both the case law, and the statute itself.”

For the full text of the decision, see:

Hincks v. Gallardo, 2013 CanLII 248 (ONSC)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.