Hincks v. Gallardo
RE: Wayne Trevor Hincks, Applicant, and
Gerardo Gallardo, Respondent
 O.J. No. 69
2013 ONSC 129
Court File No. FS-11-367046
Ontario Superior Court of Justice
R.E. Mesbur J.
Heard: October 30 and 31, 2012.
Judgment: January 7, 2013.
James S. Marks for the Applicant.
Michael G. Cochrane and Jennifer Krob for the
Sean Gaudet for the Intervener, The Attorney General
Courtney Harris for the Intervener, Attorney General of
R.E. MESBUR J.:
Introduction and factual background:
In Canada marriage for civil purposes is defined
as "the lawful union of two persons to the exclusion of all
others." [See Note 1 below] The issue on this motion is
whether the union the parties entered into pursuant to the
United Kingdom's Civil Partnership Act 2004 [See Note
2 below] is a marriage that can be dissolved under the
provisions of Canada's Divorce Act, [See Note 3 below]
and whether that union made the parties "spouses" as defined
by Ontario's Family Law Act. [See Note 4 below]
Note 1: Civil Marriage Act, S.C. 2005, c. 33.
Note 2: 2004, c. 33.
Note 3: R.S.C. 1985, c.3 (2nd Supp.) as amended.
Note 4: R.S.O. 1990, c. F.3.
Wayne Hincks and Gerardo Gallardo are same sex
partners. Mr. Hincks holds dual Canadian/United Kingdom
citizenship. Mr. Gallardo is a dual Canadian/Mexican citizen.
Shortly after the parties met in August of 2009, they
developed a romantic relationship. At that time, Mr. Hincks
was practicing architecture in the UK, while Mr. Gallardo
owned and operated a business in Toronto. According to Mr.
Hincks, Mr. Gallardo expressed a wish to reside in the UK. Mr.
Gallardo says Mr. Hincks invited him to come and live in the
UK because Mr. Gallardo could not practice architecture in
Ontario. Regardless of what led to the decision, the parties
decided to live together and formalize their relationship.
They agreed Mr. Gallardo would move to the UK and they would
enter into a civil partnership so that Mr. Hincks could
sponsor Mr. Gallardo to come to the UK under a Civil
Partnership Entry Visa.
The United Kingdom, unlike Canada, does not have
provision for marriage between same sex partners. Instead, the
Civil Partnership Act creates a parallel regime that
affords same sex partners the same rights and responsibilities
as civil marriage by virtue of a civil partnership. Only same
sex partners can enter into civil partnerships in the UK.
Mr. Gallardo travelled to the UK under the Civil
Partnership Entry Visa in early October of 2009. On October
21, 2009 the parties entered into a civil partnership under
the UK's Civil Partnership Act. In order to enter into
their civil partnership, the parties were required to do the
Post a declaration of their impending civil
partnership in a newspaper and on the wall in the
council two weeks before the ceremony;
Provide documentation proving that neither was
married or a civil partner in another civil
partnership, and swear a declaration to that effect;
Be separately interviewed by the Registrar to ensure
that their relationship was genuine and that they
understood their rights and obligations as civil
Have two witnesses present for the creation of the
civil partnership before the Registrar.
The parties exchanged vows and rings before the
Registrar. While there is some dispute between the parties, it
is apparent they enjoyed a celebratory dinner after the event,
cut a special cake and then travelled to Bologna, Italy.
Whether this trip was a "honeymoon" or not is of little
importance. What is of importance is that the creation of
their civil partnership changed the parties' legal status;
after the ceremony they were no longer single persons, but
became civil partners with virtually identical rights and
responsibilities as those enjoyed by married persons in the
After the parties became civil partners, Mr.
Gallardo obtained a UK national identity card, which
identifies him as "SPOUSE/PARTNER".
Mr. Gallardo did not work in the UK, but operated
his Toronto business remotely. Because his business was
struggling, he decided he would have to return to Toronto to
manage it here. On January 15, 2010 the parties relocated to
Toronto. At that time, Mr. Hincks' employer was experiencing a
slowdown in its business so Mr. Hincks decided to take an
unpaid six-month sabbatical for the period he would be in
Toronto. Had he not, he likely would have been laid off.
After the parties returned to Toronto their
relationship began to deteriorate. In July 2010, at the end of
his sabbatical, Mr. Hincks returned to London only to find he
no longer had a job. The parties agreed that Mr. Hincks would
come back to Toronto again. He did so on September 17, 2010.
The relationship deteriorated even further.
In November of 2010 Mr. Hincks found work in
Toronto as an urban designer at a salary of $69,000 per year.
He held the position from then until January, 2011. In
February of 2011 Mr. Hincks accused Mr. Gallardo of assaulting
him. Criminal charges followed, as did the end of the
relationship later in February, 2011.
In February, 2011 Mr. Gallardo filed for divorce
in Ontario but later withdrew the application. The parties
disagree on why this was done. In March, 2011 Mr. Hincks
commenced this proceeding. In it, he claims a divorce,
equalization of net family property and spousal support. In
the alternative, Mr. Hincks claims spousal support under the
provisions of the Family Law Act.
When he received Mr. Hincks' application, Mr.
Gallardo took the position the parties were not married and
therefore the application disclosed no cause of action. Mr.
Hincks then moved, among other things, for a declaration that
the parties' civil partnership is a marriage within the
meaning of Canada's Civil Marriage Act.
The motion came on before Grace J in April of
2011. Justice Grace was of the view [See Note 5 below] that
the "requested declaration may have ramifications beyond the
parties." He went on to hold that "the Attorney General of
Canada and the Attorney General of Ontario should be given
notice of and an opportunity to intervene in this proceeding."
He recognized that while a constitutional issue had not been
raised before him, the Attorneys should nevertheless be given
notice of the declaration the applicant sought.
Note 5: Hincks v. Gallardo Court file FS-11-367046
(S.C.J.) unreported endorsement of Grace J released April 8,
Both Attorneys General received notice, and were
given an opportunity to intervene. Both elected to do so.
Interestingly, like the parties themselves they take a
contrary position to one another.
The parties' and Attorneys' positions:
The parties' positions
Mr. Hincks takes the position that first, the
requirements of the UK Civil Partnership Act meet all
the statutory criteria of marriage as defined by Canada's
Civil Marriage Act. He therefore argues the parties are
married, and this marriage can be dissolved. He says to hold
otherwise would be discriminatory and contrary to the equality
provisions of the Charter. Second, he says the
provisions of the UK Civil Partnership Act are
sufficient to satisfy the criteria of the Family Law
Act in its definition of married spouse under Part I of
Mr. Gallardo takes the position that the parties
were never married. In a nutshell, he says the Civil
Partnership Act specifically states civil partnerships are
not marriages in the UK. Indeed, the UK Matrimonial Causes
Act [See Note 6 below] makes a marriage void if the
parties to it are not "respectively male and female". In the
face of this, he suggests an Ontario court cannot declare the
civil partnership a marriage. As a result, he says the court
has no jurisdiction to grant any relief under the Divorce
Act or equalization under the Family Law Act. He
says the parties do not fall into the extended definition of
"spouse" under the Family Law Act since they did not
cohabit for a period of more than three years, and therefore
no support rights are available under the Family Law
Note 6: Matrimonial Causes Act, 1973 c. 18 section
Mr. Gallardo suggests that some UK civil partners
would not choose to marry even if it were an option in the UK.
He therefore says that Canadian courts should not impose
marriage on civil partners who move to Canada when they may
have always intended to avoid marriage.
Mr. Gallardo points to the fact that same sex
couples from foreign jurisdictions are free to marry when they
come to Canada if they wish to change their legal status. He
therefore says the court should not confer married status on
such couples unless they unequivocally choose that particular
Mr. Gallardo also suggests that if the court
recognizes foreign institutions as marriages in Canada, this
will encourage jurisdiction shopping in order to acquire
rights that would not be available to civil partners in their
Last, Mr. Gallardo raises what might be called
the "floodgates" or "unintended consequences" argument,
meaning that all civil partnerships, including those
registered under provincial law in, for example, Quebec or
Nova Scotia, would be deemed to be marriages. He says this
would or could run contrary to the parties' express intentions
in those jurisdictions, making them married with all the
attendant rights and responsibilities they had no intention of
acquiring. He therefore says this motion must be dismissed.
Canada also says the parties are not married. It
points to the conflict of law rule that the validity of a
marriage is determined by the law of the place where the
marriage was celebrated. Canada relies on British case law
that says a civil partnership is not, by definition, a
marriage, and therefore Canada cannot confer a legal status on
the parties that the lex loci celebrationis does not
confer on them.
Canada points to the fact that the Civil
Partnership Act sets out its own dissolution process that
includes resolving property and financial matters. It says Mr.
Hincks should therefore seek relief in England, rather than in
Last, Canada takes the position that section
15(1) of the Charter does not require the court to
construe a UK civil partnership as a "marriage" under the
Civil Marriage Act and the Divorce Act.
Ontario, however, takes the position the parties'
civil partnership brings them into the definition of married
spouses under section 1 of the Family Law Act. Ontario
says that the "modern approach" to statutory interpretation
must be applied having regard to the context and objectives of
the Family Law Act. Ontario argues that the definition
of "spouse" in section 1 must be given "a broad and liberal
interpretation to capture relationships that are both formally
and functionally equivalent to marriage." [See Note 7 below]
It argues that by analogy to the Family Law Act's
recognition of polygamous marriages and void and voidable
marriages as "marriage", under the definition of "spouse" in
section 1, similar recognition should be extended to the
parties' civil partnership.
Note 7: Ontario's factum at paragraph 2.
Ontario points to British case law [See Note 8
below] that has held an Ontario same sex marriage cannot be
recognized as a marriage in the UK, but will be recognized as
a civil partnership. It argues the same logic can be applied
here; namely, if an Ontario same sex marriage can be
recognized as a British civil partnership, why can a British
civil partnership not be recognized as a marriage in Ontario?
When he first considered this issue, Grace J raised this very
Why, logically, could the converse not also be true? Why
couldn't a court in Canada look at the nature of the
foreign process, the incidents which attach to the union
and conclude, as a matter of public policy, that it may
not be a marriage in name but it is one in substance?
[See Note 9 below]
Note 8: Wilkinson v. Kitzinger,  EWHC 2022
Note 9: Op cit at footnote 5, paragraph 26.
The contrary positions taken by Canada and
Ontario raise the interesting question of whether the parties
could be spouses for the purposes of Ontario legislation, but
not spouses for the purposes of the Divorce Act.
What is marriage? Put a different way, what
marriages can be dissolved in Canada under the provisions of
the Divorce Act? What relationships create the status
of "spouses" under the Divorce Act and the Family
Law Act? Would it violate our Charter values not to
recognize these parties' registered civil partnership as a
"marriage"? These are the fundamental question I must answer.
In doing so, I will address all the arguments the parties have
raised. First, however, I situate the issue in the context of
the different legislative and constitutional frameworks in
Canada and the UK.
The constitutional and legislative framework
in Canada and the UK
The issue of whether the former common law
definition of marriage as "the voluntary union for life of one
man and one woman to the exclusion of all others" [See Note 10
below] was discriminatory against same sex couples came before
the Ontario Court of Appeal in Halpern v. Toronto
(City). [See Note 11 below] There, the court expressly
held that "separate but equal" partnership legislation that
fell short of marriage was contrary to Canada's public policy,
was discriminatory and violated the equality guarantees of our
Note 10: Hyde v. Hyde (1866), L.R. 1 P.D. 130, 35
L.J.P. & M.57 (Eng. P.D.A.).
Note 11: Halpern v. Toronto (City), (2003), 172
The court in Halpern specifically found
that same-sex couples were excluded from the fundamental
societal institution called marriage, saying:
Based on the forgoing analysis, it is our view that the
dignity of persons, in same-sex relationships is violated
by the exclusion of same-sex couples from the institution
of marriage. Accordingly, we conclude that the common-law
definition of marriage as "the voluntary union for life
of one man and one woman to the exclusion of all others"
violates s. 15(1) of the Charter.
As a result, the court struck down the former
definition of marriage and reformulated it as "the voluntary
union for life of two persons to the exclusion of all others."
This new definition of marriage has effectively been codified
in the Civil Marriage Act, which also codifies in the
Preamble the policy statements the courts have enunciated in
Halpern and elsewhere.
To the contrary, the United Kingdom has followed
a different policy path. There, a civil partnership is the
only method by which gay people can change their legal status
from single to something different. They are not permitted to
marry; instead, the UK has developed a parallel but equal
system exclusively for the gay community. In the UK, a civil
partnership and a marriage are legally equal. They are
considered substantively equal. This was confirmed by the High
Court of Justice, Family Division in the UK in Wilkinson v.
Kitzinger. [See Note 12 below]
Note 12: See Wilkinson v. Kitzinger, op cit.
In Wilkinson the parties were same sex
partners who had validly married in Canada. They applied to
the court in the UK for a declaration recognizing their
marriage as a marriage in the UK. Alternatively, they
suggested that s. 11(c) of the Matrimonial Causes Act
and chapter 2 of part 5 of the Civil Partnership Act
were incompatible with the Human Rights Act of 1998. [See Note
Note 13: S. 11(c) of the Matrimonial Causes Act makes
a marriage void if the parties are not "respectively male and
female". Chapter 2 of Part 5 of the Civil Partnership
Act deals with "overseas relationships" and treats them as
civil partnerships in the UK. "Overseas relationships" are
defined in the Civil Partnership Act and include
same-sex marriages solemnized in Canada, as well as Nova
Scotia Civil Partnerships and Quebec Civil Unions.
The court in Wilkinson describes the civil
partnership scheme as making available to civil partners
"essentially every material right and responsibility presently
arising from marriage, with the exception of the form of
ceremony and the actual name and status of marriage.
Parliament ostensibly passed the Act ... because it elected to
do so as a policy choice." The court goes on to address the
UK's legislative intention and says it "was not to create a
'second class' institution but a parallel and equalising
institution designed to redress a perceived inequality of
treatment of long term monogamous same-sex relationships,
while at the same time, demonstrating support for the long
established institution of marriage."
In Wilkinson the court says: "Parliament
has taken steps by enacting the C.P.A. to accord to same-sex
relationships effectively all the rights, responsibilities,
benefits and advantages of civil marriage save the name." It
concludes that if that distinction discriminates against
same-sex partners, the discrimination has a legitimate aim,
and is reasonable and proportionate.
Finally, the court in Wilkinson determined
that "apart from the insurmountable hurdle presented by s.
11(c) to recognition of a same-sex marriage as valid in
English law, there is abundant authority that an English court
will decline to recognise or apply what might otherwise be an
appropriate foreign rule of law, when to do so would be
against public policy: Vervaeke v. Smith  AC 145
at 164C. As already indicated, English public policy in the
matter is demonstrated by s. 11(c) of the MCA and the relevant
provisions of the CPA." [See Note 14 below]
Note 14: Wilkinson at paragraph 130.
In the result, Wilkinson, relying on the
express provisions of the Civil Partnership Act
regarding foreign same sex marriages, treated the parties'
marriage as a civil partnership under the Act.
The court's conclusion in Wilkinson is, of
course, completely contrary to the Ontario Court of Appeal's
conclusion in Halpern concerning Canadian values,
public policy and the Charter's equality rights.
Indeed, Canada's Civil Marriage Act codifies these very
principles in its preamble, where it says, among other things:
WHEREAS only equal access to marriage for civil purposes
would respect the right of couples of the same sex to
equality without discrimination and civil union, as an
institution other than marriage, would not offer them
that equal access and would violate their human dignity,
in breach of the Canadian Charter of Rights and
AND WHEREAS in order to reflect values of tolerance,
respect and equality consistent with the Canadian
Charter of Rights and Freedoms, access to marriage
for civil purposes should be extended by legislation to
couples of the same sex ...
By its statutory requirements in the UK, the
parties' civil partnership is a "lawful union of two persons
to the exclusion of all others." At first blush it falls into
the definition of civil marriage under the Civil Marriage
Act. It seems to me that to do anything other than
recognize this particular civil partnership as a marriage
would run contrary to the express values of Canadian society,
expressed in both the case law, and the statute itself and
would constitute impermissible discrimination.
But what about the arguments Mr. Gallardo and
The lex loci argument
Both Mr. Gallardo and Canada take the position
that a civil partnership registered under the Civil
Partnership Act cannot be a "marriage" because the UK does
not consider it to be a marriage in law.
If Canada's position about the lex loci
held, then surely the UK would have been bound in
Wilkinson to recognize a valid Canadian same sex
marriage as a "marriage", since it was a valid marriage
according to the law of where it was celebrated. One of the
reasons the court advanced in Wilkinson for failing to
recognize "what might otherwise be an appropriate foreign rule
of law" was that it would be against English public policy to
do so. It seems to me the same argument holds here. An English
law that makes a marriage other than between a man and a woman
void, and another that creates a "separate but equal" system
for same sex partners are clearly contrary to Canadian public
policy and Charter values.
I recognize that the UK Civil Partnership
Act has a specific provision in which it says valid
foreign same sex marriages will be treated like civil
partnerships in the UK. I see no reason why this civil
partnership, a marriage in all but name, cannot be treated as
a marriage in Canada, particularly when the parties chose to
change their status to a status equivalent to married in the
It is not, in my view, necessary for Parliament
to legislate specifically to state that Canada will treat a UK
civil partnership as a "marriage" in order for me to find it
so. Turning again to Halpern, the court there said "In
our view, 'marriage' does not have a constitutionally fixed
meaning. Rather, like the term 'banking' in s. 91(5) and the
phrase 'criminal law' in s. 91(27), the term 'marriage' as
used in s. 91(26) of the Constitution Act, 1867 has the
constitutional flexibility necessary to meet changing realties
of Canadian society without the need for recourse to
constitutional amendment procedures." [See Note 15 below] If
constitutional amendments are unnecessary to define or
redefine marriage, then surely a statutory amendment is
unnecessary as well to include this civil partnership in the
definition of marriage.
Note 15: Halpern at paragraph 46.
Halpern pointed out that one of the key
components in analysing parties' rights is the issue of
freedom of choice. One of the reasons the court found the
former definition of marriage discriminatory was that gays and
lesbians were denied the choice or whether to marry or not.
The Civil Partnership Act does nothing to redress what
we view as that discriminatory result. Given that the parties
had no choice of whether or not to marry in the UK, and their
only choice was this parallel method of changing their status,
it seems to me that this particular relationship meets all the
criteria for marriage. If I fail to recognize this union as a
marriage, then discrimination will be perpetuated.
But what about the arguments concerning
unintended consequences of such a finding, or the "floodgates"
the "floodgates" argument
Mr. Gallardo raises the spectre of unintended
consequences if I were to declare this particular civil
partnership a marriage. He points to the fact that, for
example, both Nova Scotia and Quebec have registered civil
partnership schemes. He suggests that if I find this civil
partnership to be a "marriage", then those civil partnerships
would also be captured in the definition of marriage. He goes
further and says that, for example, Nova Scotia civil partners
[See Note 16 below] would be treated as civil partners under
the Civil Partnership Act if they moved to the UK. He
suggests that if they then returned to Canada they would be
considered married if they returned to Canada. He says this
could have the unintended consequence of declaring parties who
had no wish to be married as married.
Note 16: Nova Scotia has a legislative scheme for
registering civil partnerships. The scheme is available to
both same-sex and opposite-sex couples.
I do not see it this way. In this hypothetical
example, the Nova Scotia civil partners would be treated as UK
civil partners. Their partnership would not be transformed
into a UK civil partnership; it would simply be "treated" as
one. That of course could well have the unintended consequence
of imposing more rights and responsibilities on the parties
under UK law than they would have under Nova Scotia law. It
would not, however, transform their relationship into a
Canadian marriage if they were to return to Canada since their
partnership would not truly be a UK civil partnership.
The fundamental difference is one of choice.
The question of choice: the autonomy
Both Mr. Gallardo and Canada point to the issue
of freedom of choice, and raise this specifically as a part of
their floodgates arguments. They say that parties must be left
to choose how to order their affairs, and should not have
other rights and obligations thrust upon them when they did
not choose them. They rely on the reasoning of the Supreme
Court of Canada in Nova Scotia (Attorney General) v.
Walsh [See Note 17 below] to support this position. I
disagree: Walsh is distinguishable.
Note 17:  4 S.C.R. 325, sometimes referred to as
Walsh v. Bona.
In Walsh, the Supreme Court had to address
the issue of whether excluding unmarried cohabiting
opposite-sex couples from the definition of "spouse" in
matrimonial property legislation was discriminatory. The court
held there was no discrimination. It found that applying Nova
Scotia marital property legislation only to married persons
reflected the differences between unmarried cohabiting
relationships and married relationships, and represented the
fundamental personal autonomy and dignity of the individual.
The difference, of course, is that in
Walsh the couple was an opposite sex couple and had the
choice of whether to marry or not. They chose not to. The
court respected this fundamental choice, and determined it
should not impose married rights and responsibilities on them
when they had not chosen to be married. Here, the parties had
only the choice of civil partnership if they wished to change
their status in the UK.
There is a fundamental difference between
Canadian civil partnerships and those entered into under the
UK Civil Partnership Act. In the UK only same-sex
couples can enter into these civil partnerships, and in the UK
only same-sex couples are not permitted to marry. The parties'
only choice in the UK was to enter into their civil
partnership if they wished to change their legal status from
single persons to another status that in all ways is
functionally equivalent to marriage.
Nova Scotia and Quebec both have provision for
civil unions or civil partnerships. These are formal,
registered relationships. They are open to both same- sex and
opposite-sex couples. In Nova Scotia and Quebec, and indeed,
throughout Canada, both same-sex and opposite-sex partners
have a choice whether to marry or not. They may choose to
marry. They may choose to cohabit. They may choose to enter
into a registered civil partnership in some provinces. In
Ontario there is no scheme of registered civil partnerships.
Couples here may, however, choose to enter into cohabitation
agreements which contractually set out their respective rights
and responsibilities during their relationship. In Canada, all
couples have a choice between marriage and civil partnerships.
In the UK they do not.
Here, the parties chose a regime with all the
rights and responsibilities of marriage. They deliberately
chose to change their status from single to something
functionally equivalent to marriage in the UK. In Ontario, the
only regime with all the rights and responsibilities of
marriage is marriage. Failing to recognize this civil
partnership as a marriage would be to thwart the very choice
the parties made. Recognizing this civil partnership as
marriage would support the parties' freedom of choice and
As I see it, recognition of this civil
partnership would extend only to a civil partnership sharing
these particular characteristics; namely, I would limit
recognition only to circumstances where same sex marriage is
prohibited, and the state-authorized alternative, namely the
civil partnership, is essentially identical to marriage except
in name, and is restricted only to same sex couples.
But Mr. Gallardo and Canada say the parties could
have married in Ontario when they moved back here. They
suggest that since the parties chose not to, the court should
not impose married status on them.
Mr. Gallardo and Canada both point to the fact
that the parties were free to marry in Ontario if they wished
to be married spouses instead of civil partners. While this is
true, Mr. Hincks' uncontradicted evidence is that he inquired
in Toronto about the possibility of getting married here and
was told there was no need, because as civil partners, he and
Mr. Gallardo were considered already married. He said:
Well, I went to the Toronto City Hall to get information
about doing a civil marriage at the City Hall and I asked
whether or not it was necessary to do that if we were
already in a UK civil partnership, and we were told that
it wasn't necessary to do that because we would already
be married as far as the registrar was concerned. [See
Note 18 below]
Note 18: Cross-examination of W.T. Hincks taken 10 January
2012 at Question 70.
Whether what Mr. Hincks was told was true or not
is irrelevant; Mr. Hincks relied on it as an accurate
representation of his status.
What is interesting, of course, is that Mr.
Gallardo must have considered the parties married as well, at
least in February of 2010. After all, it was he who first
commenced divorce proceedings in Ontario, although he later
There is another reason to reject the argument
that the parties simply could have married in Ontario when
they returned to live here. It bears on the issue of timing.
Under the Family Law Act parties' property rights are
affected by the date on which the parties married - that is,
the date on which their legal status changed from single to
married. The concept of equalization of net family property
effectively results in parties sharing in the value of assets
accumulated between the date of their marriage and the date
they separated. Couples who marry in the UK, move to Ontario
and seek equalization will have their marriage date as the
operative date for the calculation, even though their legal
status was changed in the UK.
If Mr. Gallardo and Canada are correct, then UK
civil partners would not be able to rely on the date their
legal status changed, but rather would have to go through
another process, thus creating a different date. Under these
circumstances, date of marriage deductions could be vastly
different for UK civil partners than they would be for UK
married partners. This would be so even though the Civil
Partnership Act purports to create a parallel but equal
system of rights and obligations for same sex partners and
I conclude that the potential option to marry in
Ontario is not an answer to the problem, and would in fact
perpetuate discrimination and unequal treatment that the
Civil Partnership Act is apparently designed to
Mr. Gallardo says that to recognize the parties'
civil partnership as a marriage would encourage forum
shopping, with parties attempting to "opt in" to more generous
rights available to married spouses in Ontario.
While the argument has some merit, I note that
forum shopping exists today among married spouses of whatever
sexual orientation. It is not uncommon for there to be two
jurisdictions with concurrent jurisdiction over the parties
for divorce and corollary relief. For example, when a couple
separates in Ontario, one of the parties might return to his
or her birthplace in a foreign jurisdiction. Both that foreign
jurisdiction and Canada could have divorce jurisdiction over
the parties. One might prefer to commence proceedings in
Ontario to obtain greater rights, while the other might prefer
to commence in his or her home country, with different rights
and obligations. In these not uncommon circumstances, forum
shopping is hardly unique, and is not limited to same sex
unions or civil partnerships.
I cannot see forum shopping as a reason to decide
the parties' civil partnership cannot be a marriage.
But Mr. Gallardo and Canada say it is not
necessary to recognize this civil union as a marriage because
Mr. Hincks is not without a remedy. He has returned to the UK
and could initiate dissolution proceedings there under the
Civil Partnership Act to dissolve the civil
partnership. He could claim financial relief under that
statute. Does that make a difference?
Does Mr. Hincks have another remedy?
It is true that Mr. Hincks could pursue
dissolution proceedings in the UK. The difference, of course,
is that if these parties were an opposite sex couple, married
in the UK, they would have the choice of whether to dissolve
their union either in Canada under the Divorce Act, or
in the UK under their divorce legislation. These parties are
unable to do so, only because of their sexual orientation. In
my view, this constitutes discrimination on the basis of
sexual orientation, which is prohibited under the equality
provisions of the Charter. I therefore conclude it is
irrelevant that Mr. Hincks has another remedy.
To this point, I have focused on the arguments
Mr. Gallardo and Canada raise, but have not dealt with
Ontario's particular arguments concerning the definition of
"spouse" under the Family Law Act.
Ontario raises some compelling arguments about
statutory interpretation, when considering the definition of
"spouse" in section 1 of the Family Law Act. It
suggests that the modern approach to statutory interpretation
should result in the parties being recognized as spouses under
Section 1(1) of the Family Law Act defines
"spouse" in the following way:
"spouse" means either of two persons who,
are married to each other, or
have together entered into a marriage that is
voidable or void, in good faith on the part of a
person relying on this clause to assert any right.
The Family Law Act goes on to provide, in
Polygamous marriages - In the definition of
"spouse", a reference to marriage includes a marriage
that is actually or potentially polygamous, if it was
celebrated in a jurisdiction whose system of law
recognizes it as valid.
Polygamous marriages are contrary to Canada's
public policy. Nevertheless, under the Family Law Act
we recognize parties to a polygamous marriage as "spouses" for
all purposes under the Family Law Act.
Void marriages are not marriages at all, and yet
the Family Law Act recognizes innocent parties to a
void or voidable marriage as "spouses". Ontario argues that
when one considers this expansive definition of married spouse
under the Family Law Act, one should give the
definition of "spouse" in section 1 of the Act a broad
and liberal interpretation to capture relationships that are
both formally and functionally equivalent to marriage within
the scheme of the Family Law Act.
Ontario takes the position that the parties here
undertook a formal event that changed their legal status from
single to partner, while also living in a relationship that is
"functionally equivalent to a married spouse under the
Family Law Act, including the mutual expectation of an
equitable division of family property upon dissolution of
their relationship." [See Note 19 below] In support of this
proposition, Ontario points to the expert evidence filed by
the parties and Canada. The experts agree that a UK civil
partnership provides equivalent rights and responsibilities to
those which arise from marriage in English law, and is
equivalent to marriage in all but name. These equivalent
rights and responsibilities include not only the right to
dissolution, but also to financial and property relief that is
identical to that available to divorcing married spouses under
Note 19: Ontario's factum at paragraph 2.
After the UK enacted the Civil Partnership
Act, it made consequential amendments to more than one
hundred statutes to add the term "civil partner" to almost all
references to "wife", "husband" or "spouse" in the laws of
England and Wales. Thus, UK civil partners have equivalent
legal rights and responsibilities to those provided to married
couples under statute.
Ontario points to the "modern approach" to
statutory interpretation when considering whether these civil
partners should be found to be "spouses" under the Family
Law Act. By this, it means that statutory interpretation
cannot be founded only on the wording of the legislation.
Instead, "the words of an Act are to be read in their entire
context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament." [See Note 20 below]
Note 20: Montreal (City) v. 2952-1366 Quebec Inc.,
 3 S.C.R. 141, and the cases referred to in it.
Ontario goes on to say that this approach is
consistent with s. 64(1) of the Legislation Act, 2006
[See Note 21 below] which says: "An Act shall be interpreted
as being remedial and shall be given such fair, large and
liberal interpretation as best ensures the attainment of its
objects." Where there is genuine ambiguity in the statute,
that is, the provision at issue can be subject to differing
but equally plausible interpretations, the presumption is that
the interpretation that is consistent with the Charter
shall prevail. [See Note 22 below]
Note 21: 2006, S.O. 2006, C. 21 Sched. F.
Note 22: Bell ExpressVu Limited Partnership v. Rex,
 2 S.C.R. 559.
Ontario points out that the definition of
"spouse" in s. 1 of the Family Law Act includes persons
who have entered a void or voidable marriage in good faith.
Void marriages are not marriages at all. By including parties
to a void or voidable marriage in the definition of "spouses",
the Family Law Act does not restrict the definition of
"spouse" only to strictly legal valid marriages. Similarly,
the Act recognizes parties to a polygamous marriage as
spouses, if the marriage was celebrated in a jurisdiction
where such marriages are valid. Again, even though polygamous
marriages are contrary to the definition of marriage in
Canada, the Act nevertheless recognizes such parties as
Ontario suggests it would therefore be illogical
to exclude this civil partnership from the definition of
"spouse" when this same-sex union would be a legal marriage if
performed in Ontario, while recognizing as spouses parties to
foreign polygamous marriages that would not be legal marriages
if performed in Ontario.
Ontario argues that an interpretation that would
recognize these parties as "spouses" under s. 1 of the
Family Law Act would be consistent with the objectives
of the Act set out in its preamble. The objectives
emphasize marriage as an economic partnership, equality
between the spouses and an equitable settlement upon the
"breakdown of the partnership".
When the parties entered into their civil
partnerships they voluntarily chose to be governed by an
equivalent statutory regime to the one applying to married
spouses in the UK. They chose an economic partnership with
equal rights and responsibilities to those of UK married
spouses on the breakdown of their partnerships. Ontario has no
mechanism for "same-sex civil partnerships" but rather a
single statutory regime that applies equally to all married
spouses, whether same-sex or opposite-sex. I agree with
Ontario's argument that when one applies the modern approach
of statutory interpretation to the definition of "spouse" in
section 1 of the Family Law Act, and "broadly and
liberally" construes it according to the objectives of the
Act, these parties must be considered "spouses" under
The parties entered into a civil partnership in
the UK. They could not choose to get married in the UK because
that country does not permit same sex couples to marry. That
policy position runs contrary to Canadian public policy
because Canadian law finds discrimination on the basis of
sexual orientation prohibited under the Charter.
Canadian law specifically holds that only equal access to
marriage for civil purposes would respect same sex couples'
right to equality without discrimination. Canadian law
specifically holds that a civil union, as an institution other
than marriage, would not offer same sex couples that equal
access and would violate their human dignity, in breach of the
Failing to recognize this UK civil partnership as
a marriage would perpetuate impermissible discrimination,
primarily because in the UK these parties could not marry
because of their sexual orientation, but had to enter into a
civil partnership instead.
Their union is a lawful union under the laws of
the UK. Their union is of two persons, to the exclusion of all
others. In the simplest terms it meets the statutory
definition of marriage in Canada. Because these parties could
not marry in the UK, but had to enter into a civil partnership
there instead, they have suffered discrimination on the basis
of their sexual orientation.
In the particular circumstances of this civil
partnership, where the parties were denied the choice to marry
in the place where the union was celebrated I would perpetuate
impermissible discrimination if I failed to recognize their
civil partnership as a marriage.
For these reasons a declaratory order will issue
declaring that the civil partnership entered into by the
parties on October 21, 2009 in Hackney, London, United
Kingdom, pursuant to the UK Civil Partnership Act is a
"marriage" as defined by the Civil Marriage Act. A
further order will issue declaring that the parties are
"spouses" as defined by the Divorce Act and s. 1 of the
Family Law Act.
As the parties agreed, there will be no order as
to costs of this motion. I would like to take this opportunity
to thank all counsel for their very thorough and helpful
materials and submissions.
R.E. MESBUR J.