Wayne Hincks and Gerardo Gallardo, both Canadians, met in Britain in 2009. Shortly after they met they entered into a civil union under U.K. law. Hincks gave up his job in the U.K. and returned to Canada with Gallardo who runs an architecture business in Toronto. The couple lived together but their relationship deteriorated and they eventually split up.
Hincks commenced a legal action to obtain support and a division of family assets. These were initially denied as the men were not considered to be legally married. Although civil unions give persons who enter into them similar rights to married couples, the unions are not considered marriages in the United Kingdom.
As reported by Xtra
, the federal government and the Ontario government took opposite positions. The position of the federal government was that the legality of the union should be determined by the law of the country where the ceremony was held. Therefore British law should be applied and the parties considered not to be married. The Ontario government also intervened in the case and argued treating Hincks and Gallardo differently from same sex couples who are married in Canada violates the equality provisions of the Charter of Rights and Freedoms.
Mesbur sided with Hincks and the province, finding civil unions to be an inherently discriminatory "parallel regime" that does not treat same sex couples the same as heterosexual couples. Mesbur is quoted in the Ottawa Citizen
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. 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.
Writing in the Law on the Web
blog in the U.K., Luke Whitmore reports this was the first time a foreign court has held a civil union to be a marriage and "the decision has sent shockwaves through the legal world." Whitmore quoted Hincks as saying he hopes the U.K. does away with the difference between civil partnerships and marriage.
Toronto lawyer Martha McCarthy couldn't understand why the federal government intervened in the case. McCarthy was quoted in the Globe and Mail
as saying, "All the applicant wanted to do was to have his civil union dissolved and treated like a marriage for legal purposes. To be clear, the issue was not about non-residents nor was it about the validity of marriages that we solemnized. So why the objections by Canada?"
It is not known whether Gallardo or the federal government will appeal the decision.