Civil partnership as marriage: The recognition of foreign same-sex unions under Canadian law [Case note on Hincks v. Gallardo, 2013 ONSC 129]

Wiggerich Sandro

Abstract

If a Canadian same-sex marriage is recognised as a civil partnership in the UK, why should a British civil partnership not be recognised as a marriage under Canadian law? In Hincks v Gallardo [2013] ONSC 129, the Ontario Superior Court of Justice held not only that this is possible, but also that not doing so would violate the Canadian Charter of Rights and Freedoms. The applicant in this case had entered into a civil partnership in the UK and later filed for divorce in Ontario. The court’s jurisdiction depended on whether the civil partnership could be recognised as a marriage for the purposes of Canadian law, which it answered in the affirmative. While the court erred in drawing an analogy to the public policy argument in the British case of Wilkinson v Kitzinger [2006] EWHC 2022 (Fam), [2007] 1 FLR 295, it is to be applauded for focusing on the autonomous decision made by the parties. From this argument, a rule can be derived in which cases a foreign same-sex legal union has to be recognised as marriage under Canadian law. Regarding UK civil partnerships, the commencement of the Marriage (Same Sex Couples) Act 2013 will allow the parties to choose whether to convert their union into a marriage. This possibility of choice will have to be taken into account for the further recognition of UK civil partnerships as marriages in Canada.