A case comment on the Court of Appeal for Ontario's
decision in Hincks v. Gallardo
In November, 2014, the Court of Appeal for Ontario released its
decision in Hincks v. Gallardo1. Justice
Hourigan, writing for the Court, upheld the motion judge's
declaratory order that a civil partnership entered into in the
United Kingdom is a marriage as defined by the Canadian Civil
Marriage Act (the "CMA") and parties to
such a civil partnership are considered spouses for the purpose of
the federal Divorce Act (the "DA") and
the Ontario Family Law Act (the "FLA").
This important decision promotes the principle of marriage equality
which underpins the Court of Appeal for Ontario's 2003 decision
in Halpern v. Canada (Attorney General)2 and
the companion cases across the county3.
In 2009, Wayne Hincks and Gerardo Gallardo, then residents of
the United Kingdom, entered into a civil partnership under the
United Kingdom's Civil Partnership Act 2004 (the
"CPA"). At that time, same-sex couples were not
permitted to marry in the United Kingdom. The civil partnership,
exclusive to same-sex couples, extended the same legal rights and
obligations as marriage to those in a civil partnership. The
CPA created a true separate but equal regime.
Shortly after entering into the civil partnership, Hincks and
Gallardo moved to Ontario. One year later, they separated. Hincks
commenced an application for divorce, equalization of net family
property and spousal support. Hincks took the position that he and
Gallardo were spouses under the DA and FLA.
Gallardo disagreed. The issue of whether Hincks and Gallardo were
spouses was brought before the Honourable Justice Mesbur of the
Superior Court of Justice. In a thoughtful and well-reasoned
decision, Justice Mesbur made a declaratory order that the
parties' civil partnership is a marriage as defined by the
CMA and that the parties are spouses under the DA
and FLA. Gallardo appealed. The Court of Appeal for
Ontario upheld Justice Mesbur's decision. Justice Hourigan,
like Justice Mesbur, provides a thorough and principled
Justice Hourigan points out that the failure to recognize the
civil partnership as a marriage will result in the parties
"being effectively treated as strangers". Such a result
must be avoided when the parties expressly and deliberately opted
into a civil partnership (which was the legal equivalent of
marriage) at a time when marriage was not available to them. The
parties entered into a relationship which, in substance but not
form, was identical to marriage. Justice Hourigan adopted Justice
Mesbur's comments in respect of the importance of recognizing
such a union as a marriage in Ontario and noted the following:
...the motion judge concluded that to
do anything other than recognize the parties' civil partnership
as a marriage would "run contrary to the express values of
Canadian society, expressed in both case law, and the statute
itself and would constitute impermissible
It must be noted that the Court limited the application of such
declarations to foreign civil partnerships made in jurisdictions
where same-sex marriage is not permissible. This limitation is
important since the declaration of marriage in respect of a union
made in a jurisdiction in which same-sex marriage is possible will
inappropriately impose rights and obligations on parties who,
through their decision to enter into a civil partnership, had
expressly opted out of marriage.
The Courts of Ontario are firmly committed to ensuring the
equality of same-sex couples. The Courts appear to remain guided by
the principle, gleaned from Halpern v. Canada (Attorney
General), of "recognizing and protecting human dignity
and equality in the context of the social structures available to
conjugal couples in Canada." O Canada, I'm proud to call
1 201 ONCA 9 (CanLII) ("Hincks"). On appeal from
the order of Mesbur, J., dated January 7, 2013, 2013 ONSC 129
2 2003 CanLII 2603 ("Halpern")
3 Those cases set the stage for the Reference re Same-Sex
Marriage before the Supreme Court of Canada in 200 and the
introduction of Bill C-38, The Civil Marriage Act, on February 1,
2005, which received Royal Assent on July 20, 2005.
4 Since that time, the United Kingdom has legalized
same-sex marriage in England pursuant to the Marriage (Same Sex
Couples) Act 2013.
5 Hincks, supra note 1, at para 17.
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