Many jurisdictions do not allow same sex couples to marry. Ontario does not differentiate between same sex and opposite sex marriage. Families are more and more mobile, and may move from one type of jurisdiction to another. This leads to interesting issues. If parties come to Ontario from a jurisdiction that does not allow them to marry, but they have gone through an alternate ceremony similar to marriage, are they married under Ontario law?
In Hincks v. Gallardo, the parties entered into a civil partnership in the UK. As they were a same sex couple, they were not eligible to marry in the UK. A civil partnership in the UK provides the parties with essentially every material right and responsibility arising from marriage, but the parties are not married.
The parties moved to Ontario. They did not marry here. They then separated. One party started an application for divorce and equalization of net family property. In Ontario, these remedies are available only to married spouses.
However, in Ontario, both same sex and opposite sex couples may marry, and there is no difference in any rights or obligations arising from marriage.
Previously, in Halpern v. Toronto, the definition of marriage as “the voluntary union for life of one man and one woman to the exclusion of all others” was found to violate the equality guarantee in the Canadian Charter of Rights and Freedoms and was reworded to “the voluntary union for life of two persons to the exclusion of all others. This has since been codified in the Civil Marriage Act.
The issue before this court was whether the couple should be treated as married or common law, for the purpose of divorce and equalization of family property.
Both the Attorneys General of Canada and Ontario intervened. The Attorney General of Canada stated that the question of whether parties are married is to be determined by the law of the place where the ceremony took place. As the UK does not recognize the parties as married, Canada should not recognize them as married.
The Attorney General of Ontario stated that the couple should be treated as married, as the definition of “married spouse” in the Family Law Act must be given a broad and liberal interpretation.
The judge found that the parties should be treated as married in Ontario, therefore the claims for divorce and equalization of family property may proceed. She stated:
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.
So, although this couple is not married in the UK, the couple is married in Ontario. This may not be the end of the matter, given the broad-reaching impact of this decision, an appeal would not be surprising.