Canada Vs. UK on Gay Divorce } Gay Marriage Wins

 

 An Ontario Superior Court judge has taken the novel step of granting a divorce to a same-sex couple over legal objections from the federal Crown.

Madam Justice Ruth Mesbur ruled that same-sex civil partnerships from foreign countries that don’t permit same-sex marriages can nonetheless qualify as marriages under Canadian law.

 It was the second time in the past year that the federal government has 
   adopted a restrictive position on same-sex marriages.

In an interview Friday, one of the ex-spouses, Wayne Hincks, expressed anger that the federal Crown strung out a costly, emotional process by injecting itself into the case.

“The Attorney-General of Canada intervened in my very private matter and caused it to be stretched out, almost bankrupting me in the process,” Mr. Hincks said. “I eventually had to leave Toronto with no protections, no financial support to acquire my rights and no social network to rely on for personal support.”

The divorcing couple both have Canadian citizenship. They moved to Toronto in 2010, a year after their civil ceremony took place in London, England.

Britain does not permit same-sex couples to marry. Instead, it has a separate legal regime for same-sex couples that involves a civil partnership ceremony.

Last year, Mr. Hincks petitioned the Ontario courts to carry out the divorce. His spouse, Gerardo Gallardo, argued that the couple could not be construed as being legally married in Canada since their union was the result of a civil partnership ceremony.

Sean Gaudet, a lawyer for the Attorney-General of Canada, supported Mr. Gallardo’s position. Ontario Crown counsel Courtney Harris took the opposite position and supported Mr. Hincks.

In her decision, Judge Mesbur said 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 decision means that Mr. Hincks can now pursue a claim for divorce, spousal support and equalization of net family income in Ontario.

Robert Leckey, a professor of family law at McGill University and president of Egale Canada, said he found the federal position to be disturbing.

“I don’t see the legitimate public interest in opposing the bid for recognition in these circumstances,” he said. “When the U.K. government says that a civil partnership is tantamount to marriage, there is no reason for the Government of Canada to deny its existence. … It’s a troubling deployment of Department of Justice resources.”

Last year, Mr. Gaudet argued in a separate case that a foreign couple who came to Canada for a wedding were not eligible to be divorced because their marriage was invalid. His argument, had it prevailed, would have meant that thousands of same-sex couples who flocked to Canada since 2004 for marriages were not legally wed.

Martha McCarthy, a lawyer for one of the spouses in the 2012 case, was critical of the federal Crown Friday for opposing Mr. Hincks.

“All the applicant wanted was to have his civil union dissolved and treated like a marriage for legal purposes,” she said. “To be clear, the issue was not about non-residents nor was it about the validity of marriages that we solemnized. So, why the objection by Canada?”

Ms. McCarthy praised Judge Mesbur and the Ontario Crown for their “progressive approach” to the Hincks case.

Prof. Leckey said the reasoning in the Hincks case will likely extend to similar divorce cases involving civil partnerships that took place in much of the United States, Australia, New Zealand and several European countries.

A Justice Department spokesman, Julie Di Mambro, said Friday that the department cannot comment because the Hincks case is still before the courts.

KIRK MAKIN - JUSTICE REPORTER

The Globe and Mail

  

to an account of the relationship contained in the court decision, Hincks soon gave up his job in Britain and moved to Canada with Gallardo, who owned an architecture business in Toronto. They shared a home, but the relationship faltered and the two eventually split.

Hincks sought a financial settlement, but has so far been denied that because — under Canadian law — the estranged couple’s civil partnership was not considered a marriage, and Hincks was not formally entitled to the full benefits of a legal “spouse.”

Hincks launched a court challenge, winning support for his cause from the gay-rights organization Egale Canada and Randall Garrison, the NDP’s critic for gay and lesbian issues.

In October 2011, citing the Toronto couple’s legal fight over spousal rights, Garrison challenged Justice Minister Rob Nicholson in the House of Commons over the federal government’s intervention in the case against Hincks, accusing the Conservatives of reopening the debate over gay marriage.

“We have been very clear that we are not reopening the issue, but it is a legal dispute over definitions,” Nicholson responded at the time. “As the matter is before the court, I look forward to the decision of the court.”

The Ontario government intervened in the case on Hincks’ behalf, arguing that he should be treated in the divorce settlement with all of the rights available to a legally married spouse under the provincial Family Law Act.

A federal government lawyer argued against Hincks’ bid to equate Britain’s civil partnerships with this country’s definition of a same-sex marriage.

Said Hincks: “It was quite an argument between Ontario and Canada.”

The federal position, according to the judge’s ruling this week, was 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.”

In her decision, however, Justice Mesbur sided with Hincks and the Ontario government, indicating that the federal position would amount to endorsing — against the intent of the Canadian Charter of Rights and Freedom — Britain’s inherently discriminatory “parallel regime” of uniting same-sex couples in a civil partnership rather than a fully constituted marriage.

“Failing to recognize this U.K. civil partnership as a marriage would perpetuate impermissible discrimination, primarily because in the U.K. these parties could not marry because of their sexual orientation, but had to enter into a civil partnership instead,” Justice Mesbur stated. “Their union is a lawful union under the laws of the U.K. 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 U.K., but had to enter into a civil partnership there instead, they have suffered discrimination on the basis of their sexual orientation.”

While wary of a possible appeal by the Canadian government, Hincks said he welcomed the ruling’s “unprecedented” affirmation of Britain’s civil partnerships as a marriage in everything but name — a status that critics of the U.K. system vowed to change. In fact, legislation championed by Conservative Prime Minister David Cameron and expected to be introduced in the British Parliament in the coming weeks could make same-sex marriage legal and equal to heterosexual unions in the U.K.

Miles Geffin, a British lawyer involved in the case on Hincks’ behalf, said Friday that the “decision doesn’t have any direct impact on the position in the U.K., other than that any U.K. civil partners who relocate to Ontario will be viewed as married.”

But he added that, “the decision does, however, bring into sharp focus the sterility of the quasi-religious aspect to the debate on same-sex marriage currently underway in the U.K.”

Hincks said he was pleased that the ruling in his case could bolster efforts in Britain to have that country follow Canada in allowing same-sex marriages.

On a personal level, though, the ruling essentially leaves him at square one of a conventional marriage breakdown, he said.

“What it does is put me at the beginning of a divorce case after two years,” he said. “When we separated I had no recourse to find housing in Toronto or social support… I had no way of getting any spousal support that any normal spouse would be able to claim for, and I had no way of having a home — our matrimonial home. It was all taken away from me by the argument that we were not married.”

BY RANDY BOSWELL, POSTMEDIA NEWS