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Digest of the Week - "divorce equality"

Hincks v. Gallardo

2013 CarswellOnt 109                                                            
Ontario Superior Court of Justice

Judgment: January 7, 2013

Family law | Marriage | Nature of marriage | Same sex marriage

Status of foreign civil partnership — Parties were same-sex partners who entered into civil partnership in United Kingdom under Civil Partnership Act (CPA) while they were living in United Kingdom — After relationship ended, applicant commenced proceeding in Ontario seeking divorce, equalization of family property and spousal support, but respondent took position that parties were not married — Applicant brought motion for declaration that parties' civil partnership was marriage within meaning of Civil Marriage Act (CMA) — Motion granted — Civil partnership entered into in United Kingdom pursuant to CPA was "marriage" as defined by CMA — Parties were "spouses" as defined by Divorce Act and Family Law Act — Union was lawful under laws of United Kingdom, as it was union of two persons, to exclusion of all others — As parties could not marry in United Kingdom but had to enter into civil partnership, they suffered discrimination on basis of sexual orientation — Under Canadian law, only equal access to marriage for civil purposes would respect same-sex couples' right to equality without discrimination — Civil partnership was marriage in all but name, and failing to recognize civil partnership as marriage would thwart choice parties made — Forum shopping was not reason to decide parties' civil partnership could not be marriage — Family Law Act had expansive definition of "spouse" to capture relationships that were formally and functionally equivalent to marriage.

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