author Posted by: Bob on date Apr 29th, 2013 | filed Filed under: In the News, Same-Sex Marriage

In January 2013, Madam Justice Ruth Mesbur ruled that same-sex civil partnerships from foreign countries that don’t permit same-sex marriages may still be viewed as valid marriages under Canadian law.

The case in question involves two men who entered a civil union in London, England in 2009. Wayne Hincks and Gerardo Gallardo are both Canadian citizens, and moved to Toronto in 2010.  British law does not permit marriage between same-sex couples as is the case in Canada. Instead, they have a separate legal regime that allows same-sex couples to enter into civil partnerships. The difference between a marriage and a civil partnership is that those in civil partnerships will generally not have as many rights/entitlements as married spouses upon dissolution of the marriage. In Canada, we also have two separate legal regimes for common law and married spouses; however, Canadian law permits same-sex marriages, whereas British law does not.

The crux of the legal issue in this case was whether or not Mr. Hincks and Mr. Gallardo could be considered legally married in Canada, as their union was the result of a civil partnership ceremony and not a marriage. Or, more specifically, was either spouse entitled to receive the entitlements of a married spouse upon separation and/or divorce.

Justice Mesbur ruled that refusing a divorce would “constitute impermissible discrimination. 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.”  The effect of this decision is that Mr. Hincks may now pursue an equalization and/or spousal support claim in Ontario.

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Robert Berman B.C.L, LL.B
Founder & Family Lawyer