Can a Foreign Same-Sex Couple Get a Divorce in Canada?
In Family Law, it perhaps goes without saying that in order to get divorce, a couple must be married first. But the question of whether a same-sex couple’s “marriage” in another country was eligible for divorce in Canada was the crux of an Ontario Court decision handed down a few days ago in Hincks v. Gallardo, 2013 CanLII 248 (ON SC).
The couple, Wayne and Gerardo, had participated in a “civil partnership” ceremony in the UK, pursuant to legislation aimed specifically at recognizing same-sex unions. (In the UK, the law still reserves the term “married” for partners of opposite genders, but allows for a civil partnership ceremony for same-sex unions only). They fulfilled all the requirements of that process, exchanged rings, and under UK law gained all the rights that were equivalent to opposite-sex married couples in that country. When they later moved to Toronto, they inquired at City Hall about going through a civil ceremony here, but were told that as far as the Registrar was concerned, they needn’t bother because they had undergone the civil partnership ceremony in the UK.
When their relationship broke down, Wayne sought a divorce in Canada, and asked for equalization and spousal support under the Ontario Family Law Act. However, Gerardo objected on the basis that they were never married, i.e. their UK civil partnership was not a legal “marriage” in Canada, nor were they “spouses” for Ontario support and equalization purposes.
The court started by pointing out that in Canada, “marriage” is defined under the federal Civil Marriage Act as “the lawful union of two persons to the exclusion of all others.” “Spouse” in Ontario means “two persons who are … married to each other.”
The question of whether the UK civil partnership amounted to a Canadian “marriage” has to take into account not only the wording of the Canadian law – which is to be given “a broad and liberal interpretation to capture relationships that are both formally and functionally equivalent to marriage” – but also the modern societal context. The UK civil partnership between Wayne and Gerardo had all the hallmarks of the type of union recognized by Canadian family law as a “marriage”, and fell within that category for not only divorce but for spousal support and equalization as well. To hold otherwise, said the court, would be discriminatory and violate the equality guarantees of our Charter of Rights and Freedoms.
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