Court Cases & Orders

Canadian Divorce and Foreign Same-Sex Couples – Appeal Ruling Now

Written by Russell Alexander / (905) 655-6335

Last year I wrote about an interesting Ontario family law case called Hincks v. Gallardo, [link to: ]. In a nutshell, the case hinged on the question of whether, for the purpose of divorce, a same-sex union in another country can amount to a “marriage” under Canadian law.

The couple, who were two men named Wayne and Gerardo, had exchanged rings and gone through a “civil partnership” ceremony in the U.K., under laws that recognized same-sex unions in that country. They moved to Ontario and later decided to divorce. Wayne asked for equalization and spousal support from Gerardo under the province’s Family Law Act (the FLA) and the federal Divorce Act (DA).

As a prerequisite to obtaining that divorce-related relief, Wayne had to prove they were actually married first. Gerardo claimed that the union between them was not a “marriage” under Canadian law.

The judge hearing the original motion disagreed and – in its judgment rendered recently – the Ontario Court of Appeal confirmed that decision. Emphasizing that the wording of the FLA and DA were to be interpreted in their entire context, and in their grammatical and ordinary sense in harmony with the scheme and purpose of the legislation, the Court of Appeal concluded:

The interpretation by the motion judge of the terms “spouses” and “marriage” is entirely consistent with the modern approach [to statutory interpretation] mandated by the Supreme Court of Canada [in a prior decision]. Her interpretation achieves one of the fundamental purposes of the DA and the FLA: it provides the parties with an equitable and certain process for resolving their economic issues arising out of the dissolution of their relationship. In contrast, the interpretation urged upon us by the appellant would result in the parties being effectively treated as legal strangers under the legislation and would force them to assert their economic claims through more limited and less predictable means, such as trust claims.

As a result, under the FLA two people who are in a relationship that is both formally and functionally equivalent to marriage may be considered spouses under that Act; likewise, they have the same standing for the purposes of the divorce legislation. The appeal was accordingly dismissed.

For the full text of the decision, see:

Hincks v. Gallardo, 2014 ONCA 494 (CanLII)

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About the author

Russell Alexander

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