June 28, 2013 • In web :: Features
Courts Rule on Rights for ‘Non-Traditional’ Families
Marta Balcewicz reports on the changing scope of family law in Canada.
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Hincks v. Gallardo
The first decision was released in January by the Ontario Supreme Court of Justice. The case involved a same-sex couple, Hincks and Gallardo, who entered into a civil partnership in the U.K. in 2009. The U.K. does not recognize same-sex marriage and instead created a law in 2005 that allows same-sex couples to enter into civil partnerships. The civil partnership is virtually identical to marriage in terms of the protections and rights it offers. Same-sex couples in the U.K. can thus enter something that is identical to civil marriage, minus the name. This form of offering rights to a group (most often a minority group) is called an "equal but different" approach and is problematic, as the Ontario court in this case recognized. It perpetuates the idea that somehow the group is not worthy of being given all the same rights as are offered to the remainder of society.
Hincks and Gallardo, who were Canadian citizens, moved to Toronto shortly after entering the civil partnership. Their relationship began to deteriorate and, after two years, they separated. Hincks went to court seeking a divorce, equal division of the couple's property, and spousal support from Gallardo. (Hincks would have likely not met the legal definition of a common-law spouse because in Ontario a couple has to live together for three years or longer to be considered common-law spouses). Gallardo, in turn, claimed that their relationship, being a civil partnership, was not a marriage, as defined by Canadian law. If it was not a marriage, then Hicks had no right to seek a divorce, division of family property, or spousal support from Gallardo.
Justice Mesbur, the judge in this matter, examined the definition of "marriage" in Canada, which is found in the federal Civil Marriage Act. The definition states that "marriage" is "the lawful union of two persons to the exclusion of all others." Prior to the 2003, the definition of marriage was "the voluntary union for life of one man and one woman to the exclusion of all others." The Ontario Court of Appeal in Halpern v. Toronto (City) decided that this definition violated the Canadian Charter of Rights and Freedoms—specifically, by discriminating against persons based on their sexual orientation. The present definition of marriage, which is non-gendered, was subsequently created, and Canada joined the small but growing group of countries that recognized same-sex marriage.