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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Justice Mesbur decided that accepting Gallardo's argument that a U.K. civil partnership is not a "marriage" under Canadian law would go against the grain of Canadian values and the Charter. After all, the civil partnership was functionally and legally identical to marriage. Most importantly, same-sex couples in the U.K. have no choice to enter anything but a civil partnership, and to them, a civil partnership is marriage.
The decision that a U.K. civil partnership meets the definition of "marriage" under Canadian law has important ramifications. The creation of alternative mechanisms for same-sex couples to enter into something like marriage, but not exactly marriage, is not limited to the U.K. It is widespread across Europe, certain nations in Central and South America, New Zealand, Australia, and some U.S. States. It is a way to satisfy competing groups' interests—those who are opposed to opening the institution of marriage to anyone other than male-female couples and the LGBT community. Canada has now rejected the use of such alternative mechanisms, rightly recognizing that they send a strong message in their exclusion of non male-female couples from the "official" institution of marriage. Because of the existence of these alternative unions in other countries, however, Canada is bound to encounter more and more couples who have entered into such a partnership abroad and then separate after moving here. Hincks v. Gallardo has set a precedent for closely examining whether the union that was entered into is like a marriage—and, if it is, for recognizing it as a marriage in Canada. This, in turn, allows the separating couple to obtain a divorce and apply for all the protections and benefits of a divorce, such as division of property accumulated during the relationship and spousal support payments.
Eric and Lola
In Hincks v. Gallardo, Judge Mesbur decided that the parties were legally married, and Hincks received the benefits of a legal divorce. But what happens when a separating couple isn't legally married—specifically, when they're common-law spouses? While the law of divorce is federal, the law that deals with separation after a common-law relationship is provincial. Benefits for separating common-law partners thus vary by province and territory.