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After legalizing his divorce, Wayne Hincks is now eligible for legal claims such as spousal support and equalization of net family income. (Jim Ross For The Globe and Mail)
After legalizing his divorce, Wayne Hincks is now eligible for legal claims such as spousal support and equalization of net family income. (Jim Ross For The Globe and Mail)

Law

Ontario court grants same-sex divorce Add to ...

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.

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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.

 

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