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Posts tagged ‘marriage’

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

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

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)

http://canlii.ca/t/fvkpd

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

A Husband with An Assumed Identity … An Uncertain Marriage in Florida – What Does It Mean in Ontario?

A Husband with An Assumed Identity … An Uncertain Marriage in Florida – What Does It Mean in Ontario?

This is an Ontario divorce case with unusual facts: in order to resolve the couple’s issues on separation, they first had to determine whether they were legally married. But a further complicating twist was that the husband had been living under an assumed identity, and there were questions as to whether the couple had been married in Florida, which in turn affected the validity of their union in Ontario.

The man and woman started living together in Ottawa in 1993. During part of 1994 and 1995, they lived in Florida, but then returned to Ontario in 1995, where they lived together until they separated in 2009.

They had two children together, one of which is disabled and requires a high level of care. However, the man had not seen the children since their 2009 separation, and – other than $250 – had paid neither spousal nor child support since that time. The woman has been receiving public benefits.

The woman accordingly brought a routine application for an order requiring the man to pay support, but it included a request for a rather unusual declaration: that “John Muir” (the name of the man she married) and “David Waghorn” (the man who appeared in court in response to the support application) are one and the same. Furthermore, as prerequisite to determining the support matter she needed the court to rule on whether she and the man were legally married in Ontario.

First, the court considered of the man’s true legal identity, specifically whether “David Waghorn” had been living under the name of “John Muir”.

The Applicant [woman] testified she and the Respondent [man] started dating and moved in together in 1993. She states that they became engaged in 1994 and were to get married in Ottawa in 1995.

Each party testified that they were acquainted in Ottawa with a male person who is an American citizen from Florida and lived in Ottawa at the time. It is agreed that the parties saw the male individual on a social basis in Ottawa in 1993. The Applicant testified this male acquaintance is one John Muir. The Respondent, without corroboration, argued that the name of this individual is Moir, not Muir.

It is agreed the parties moved to Florida in 1993 and lived there until 1995 when they returned together and lived in the Niagara and then Ottawa area.

The Applicant testified that they decided to live in Florida for a while and obtained identification documents from Mr. Muir in order that the Respondent could work while they were in Florida. The Applicant states the documents the Respondent Mr. Muir received and used in Florida include:

(a) His social security card,

(b) An Hawaiian statement of live birth, and

(c) A Florida voter identification card.

The above documents identify John Sinclair Muir, however none have a photograph.

The Respondent denies that he identified himself as or used the name John Muir at anytime. He testified that the Applicant was married to John Muir and that Mr. Muir told the parties at one point in the past that he had lost his wallet. This is the Respondent’s speculation as to how the above documents came into the possession of the Applicant. The Applicant denies this.

The woman also produced employment applications in the name of “John Muir”, and certain other correspondence. (The man, on the other hand, claimed he could produce the “real” John Muir as a witness in the trial, but then demurred at the last minute, claiming that he could not issue a summons in the U.S. where the real John Muir apparently lives).

After considering all the evidence, the court concluded that the man’s testimony was untruthful, and it believed the woman’s version of events as to the man’s identity.

Next, the court considered whether the man and woman had gotten legally married in Florida. At the outset, the woman conceded that she knew the man’s use of “John Muir” to Florida marriage officials was untrue, but it was done to avoid any inconsistencies of records. She provided evidence that included a Florida marriage licence, a wedding band, and the man’s 2006 and 2007 tax returns, which indicated his status as “married.” The man had also signed as consenting spouse on the mortgage to the couple’s matrimonial home.

Based on this evidence, the court made a declaration that the man and woman had indeed been married to each other under the laws of Florida. However, this led to the next legal question: whether the couple was married under Ontario law, given the fact that they had misrepresented the name of one of them to wedding officials there.

Clearly, the couple had intended to marry each other when then obtained a Florida marriage license, and then participated in a marriage ceremony before a qualified marriage official in that state. They did not intend to limit their marriage to that jurisdiction, and neither was disqualified from marrying the other at the time. The marriage was therefore in accord with the laws of all jurisdictions, including Ontario; it was not invalidated by the misrepresentation as to John Muir’s real identity.

Based on the conclusion that the parties were married under Ontario law, the court went on to determine issues relating to custody, access, and child support issues.

Smith v. Waghorn, 2012 ONSC 496  http://canlii.ca/t/fqbx4

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

B.C. Court Rules on Constitutionality of Polygamy

B.C. Court Rules on Constitutionality of Polygamy

In a ruling released within the past week, the B.C. Supreme Court has ruled that the current ban in Canada against polygamy is indeed constitutional.

Among other things, the decision examines the federal Criminal Code provision which make polygamy a crime.   Specifically, by virtue of s. 293 of the Code – which imposes up to five years’ imprisonment upon conviction – polygamous marriages have been illegal in Canada since 1892.  Moreover, polygamy is illegal even though the participants may be consenting adults, and even though there is no dependence, abuse of authority, undue influence, or other power imbalance in the polygamous relationship.

The matter arose out of polygamy charges which had been laid against two Mormon leaders Bountiful, B.C.    The charges were stayed in 2009 and a constitutional issue was referred to the B.C. Supreme Court for its resolution by the provincial government.

After 42 days of legal argument, the court ruled upon the proper balance to be struck between constitutionally-entrenched religious freedom rights on the one hand, and the potential harm to those involved in the polygamous lifestyle – particularly women and children.

While conceding that the present law violates the religious freedom of certain groups (such as fundamentalist Mormons, who advocate marriage between a single husband and multiple wives), the harm against women and children who participate in polygamist lifestyles overrides those concerns.  The court had heard evidence that polygamy puts woman and children at risk, and that any encroachment on religious freedom, and freedom of association and expression, were justified.  It also heard evidence from individuals directly involved in polygamous relationships.

However, in the context of affirming the criminal nature of such relationships, the court carved out a specific exception for minors:  it ruled that those between the age of 12 and 17 who violate the law by participating in a polygamous relationship should not be prosecuted, because that prosecution – coupled with the possibility of the minor serving jail time — would create greater harm to the minor than the polygamy itself.  The court urged the federal Parliament to amend the legislation in order to address that concern.

The B.C. Supreme Court’s decision is certainly subject to further appeal.   As it stands, it probably affects directly only a relatively small number of Canadians.  Nonetheless, it is an important ruling in an interesting area of the law, and one that seeks to strike a balance between Charter-entrenched rights and other interests.

For the full text of the decision, see:

Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 (CanLII) http://canlii.ca/t/fnzqf

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit www.RussellAlexander.com