Many support payors are under the impression that child support ceases when that child leaves home to attend a post-secondary institution. Our courts, however, have taken a different approach. Child support is reduced but not eliminated. In these cases, the issue is whether the parent receiving child support must reasonably maintain a “home base” for that child.
Subsection 31(1) of the Family Law Act, provides that each parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full-time program of education, to the extent that the parent is capable of doing so. Child support for a child over the age of majority is paid in accordance with section 3(2) of the Child Support Guidelines. That section requires a payor to pay the table amount of child support unless the court considers the table amount to be “inappropriate”. Interestingly enough, the definition of “inappropriate” is not consistent from province to province. However, it is the Ontario law that is relevant for our purposes.
The Ontario Court of Appeal has held that the table amount is “prima facie” inappropriate. Once that is the case, then court has to determine an appropriate amount, based on the”condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.”
The cases have seen child support paid as either a reduced amount over 12 months of the year or full support for the 4 months the child is at home and no support for the 8 months the child is away at school. The courts seem to acknowledge that, even though the child is living away at school, it is normally in the child’s best interest for the parent with whom he or she resided to maintain a home for the child to return to on school breaks. It is accepted that maintaining a permanent home for the child results in incidental expenses that subsist even in the child’s temporary absence.
The question then becomes what is the cost of maintaining that “home base”? Budgets, which we had thought went the way of the dodo in child support cases, are back. A support recipient will need to show the cost of maintaining a home for the child away at university. It must be part of the evidence led in order to be considered by the court.
Parenting disputes are particularly complicated when families have ties to multiple jurisdictions. A fairly straightforward dispute about custody or a parenting schedule may be exacerbated by a battle about which court has authority to determine the children’s fate. Where families have ties to more than one place a dispute may quickly escalate if either parent sees an advantage in commencing a claim in a particular jurisdiction. As a federal state, Canada has thirteen provincial and territorial jurisdictions. With global mobility many parents have close ties to jurisdictions abroad, including fifty potential jurisdictions in the country next door.
Early resolution of the jurisdictional question may well allow the parents to focus on the real issues – where the children should live and how they should be parented. Quick determinations of jurisdictional disputes may also deter parents from a rush to court to try to gain an advantage. In the United States there is a very developed practice of family court judges consulting with their counterparts when there are competing custody and access claims in two states. Within Canada that practice also exists but is not as widely used as it could, and perhaps should, be in Ontario.
The Canadian Judicial Council has approved a network of contact judges in the various provinces and territories. The Canadian Network of Contact Judges exists and has established a protocol for handling these cases within Canada and internationally. Where a parenting dispute arises, the published guidelines provide for transparent communication between judges in both jurisdictions. With notice to both parents, the judges make contact initially in written form by email or fax. Joint case conferences can be held by telephone or video conferencing. A record can be kept of all these communications and, if there is a language issue, court interpreters can be used. The judges can address issues from the mundane to the serious – scheduling, interim orders, mirror orders, the enforcement of undertakings, available services in each jurisdiction, the actual logistics of returning a child. All these issues can be dealt with between the judges with the parties present. This process may facilitate an agreement by removing barriers to communication and access to this information. If the parties cannot enter into a consensus on any issue, even procedural issues, then the courts will still need to address the jurisdictional claims in accordance with their respective law and practices. Following such a protocol would greatly reduce cases that proceed in that manner.
The world lost a great man December 5, 2013 when Nelson Mandela passed. Although a somewhat controversial figure in his youth, his leadership of South Africa and his work in eliminating apartheid were inspired and inspiring. Watching the many celebrations of his life -and I imagine there are many more to come- moved me. But it was the evidence of his capacity for forgiveness that amazed and astounded me. And inspired me to write this post.
Forgiveness is tough. Along with apologizing and asking forgiveness of those we have wronged, truly forgiving is probably one of the hardest things a person can do. We are told to forgive and forget. Is that realistic? I am not sure I really want to forget. I think I would prefer to feel the harm, and then learn from that experience and forgive anyway. I don’t want selective amnesia and I don’t recommend it for others. I suspect that forgetting making you more likely to make the same mistakes all over again.
When a couple breaks up, there is most often pain and anger, hurt, recriminations and blame. If we are lucky, in time, there comes forgiveness, the acceptance of a new role and a renewed vision of your ex as an individual worthy of respect. This is particularly important when you have children together, but respect for your ex is of benefit even if you don’t.
Someone once told me that the opposite of love is not hate, it is indifference. If you are really done with a person and a relationship, then you don’t hate them. You are indifferent to them. Or, in a best case scenario, you can interact with them in a respectful and honest fashion without anger or pain.
Forgiveness is essential to being able to move on. You need to forgive yourself for your part in bringing about the end of the relationship. You need to forgive your ex the harms – real or imagined – done to you. You need to make peace with the fact that you are a divorced or separated person and accept that new identity and role. You need to consider the patterns and behaviours in which you engage which may have been harmful to your past relationship or impede future intimacy.
Consider this: Nelson Mandela spent 27 years in prison. The man who put him there, Dr Percy Yutar, chief prosecutor, was seeking the death penalty. In 1995, Nelson invited Yutar to lunch and forgave him. A year earlier, in 1994, Mandela had his former prison guard as an honoured guest at his presidential inauguration ceremony. As Mandela said: “Forgiveness liberates the soul, it removes fear. That’s why it’s such a powerful weapon.”
Many clients have told me that things their exes have done are unforgiveable. What does that really mean? What is truly unforgiveable? What seems unforgiveable on the heels of the breakup might seem less significant and painful as time goes on. Think about that. Think about your position on forgiveness and rethink it every little while. Are you ready now to forgive something you might have held onto earlier? Surely your soul deserved liberation? Take a first step towards forgiveness today. You won’t regret it.
No matter what side of the fence they are on, clients seem frustrated with the Family Responsibility Office (“FRO”). Whether one client claims FRO is not collecting support fast enough or another thinks FRO is collecting too much support, it seems everyone has a complaint. FRO was established to collect, distribute and enforce child and spousal support payments in this province. Every year, FRO handles more than 180,000 cases, represents nearly 400,000 people and collects about $650 million in support payments. With that amount of work, I suppose they were bound to get it wrong every once in a while….and the 2013 decision in Ashak v Ontario (Director, Family Responsibility Office) is about trying to make it right.
Pursuant to a final order, a husband was ordered to pay child and spousal support to his former wife. The support order was filed with FRO for collection and enforcement. The husband left the jurisdiction and was thought to be in Iraq – a country with which Ontario has no reciprocal support enforcement agreement. The husband defaulted on support payment. Collection efforts were undertaken, all of which failed.
The husband later travels to Ontario. Due to his non-payment of support, the federal government and FRO manage to have husband’s Canadian passport suspended (under the Family Orders and Agreement Enforcement Assistance Act.) The Husband goes to FRO and wants them to authorize the reinstatement of his passport, claiming he was unaware of the support order. FRO tells the husband that unless he secures a support variation (either court ordered or on consent) or until he pays of the arrears, his passport would remain suspended.
A few months later, the husband reappears at FRO and informs them that his lawyer was seeking a variation order. Big fib. Regardless, after a few attendances, FRO authorizes the federal government to remove the suspension of husband’s passport. As you would expect, the husband left Canada soon afterward and has not been seen since.
The wife sued FRO, stating that the office’s conduct was substandard. The wife sought damages for breach of duty, negligence, gross negligence, breach of fiduciary duty, and/or vicarious liability.” FRO sought to have the action summarily dismissed, claiming there was no genuine issue for trial since the wife, as a private citizen, had no cause of action against a public body.
The Ontario Superior Court of Justice dismissed FRO’s summary judgement motion and allowed the case to proceed. The court held that a duty of care arose from the legislative scheme and the interactions between FRO and the wife. The task of enforcing a support order is assumed by the Director of FRO upon its filing. In this case, the support order was being actively enforced when the events in question occurred. Justice Grace found that effective enforcement by FRO would have yielded recovery for the wife and that economic harm to the wife and the children was a foreseeable consequence of negligent enforcement.
Since FRO’s summary judgement motion failed, the case will be proceeding to trial. Stay tuned to find out whether this wife and other support recipients have a remedy against FRO if and when that office is negligent.
Is the situation in Ontario’s family law courts bad enough to prompt change? Innumerable studies in recent years identifying problems in family law processes and courts have not had an impact on alleviating the crisis in delivery of family law in this province and elsewhere in Canada. The crisis is manifest in the overwhelming numbers of self-represented litigants in the courts, the lack of access to mediation or other conciliation services, the high costs of private legal services and restricted eligibility to Legal Aid. The most recent report by the Action Committee on Access to Justice in Civil and Family Law Matters reiterates the call for meaningful change.[i] The Committee concludes that while the substance of family law is fair, the delivery fails families. This failure is not for a lack of sensible ideas about how to improve the system but rather for a lack of will and resources to implement those ideas. Some improvements have been implemented in Ontario but on a piecemeal basis. The Committee makes a number of recommendations to reform the family law system. The Committee’s stated goal is to foster what it calls “Consensual Dispute Resolution” (“CDR”) over litigation wherever possible. Some of the recommendations are:
To expand unified family courts province wide. No one could defend the practice of having two family courts operating in overlapping spheres of jurisdiction. It is a consequence of our federal system but not a necessary consequence. Some 35 years ago the first unified family court opened in Ontario. All Ontario families should have access to a unified family court with specialist judges. These courts can then be the hub of a system that delivers a comprehensive set of services to separated families, not just traditional litigation.
To expand eligibility for legal aid. The threshold for legal aid in family law is extraordinarily low. Only those at the lowest income levels are eligible for a certificate. There is no coverage for those in income levels from $20,000 to $50,000 yet private legal fees are largely out of reach for Ontarians at those income levels. The Committee recommends expanded use of legal aid clinics as a cost-effective way to provide legal aid service.
To expand the role of paralegals. The Committee emphasizes the need for paralegals to be trained and supervised. Paralegals currently cannot provide family law services independently although many law clerks work with lawyers in private practices. There is a risk that simply expanding the scope of practice for paralegals will paper over the problem if paralegals perform work that requires a level of knowledge and skills that they do not have. Clients don’t know what they don’t know and may not be able to assess the level of expertise needed to advise them in family law matters which involve complex legal issues.
Exploring the use of inquisitorial models for family law hearings. This is the most radical recommendation and, in my view, the one with the most potential to improve delivery of family law in our system. Our current system is based on an adversarial system in which opposing parties come to court with the information and legal arguments and contest the facts using formal rules of evidence. The judge plays the role of neutral arbitrator who is not permitted to enter into the fray. The inquisitorial model, which is used in many countries, permits the judge to actively direct the proceedings, to investigate and to propose resolutions. In a system overloaded by self – represented parties who are, on the whole, without the knowledge or training to be able to analyse the law or present the facts properly, the inquisitorial system is the only way that family law matters will be properly heard and disposed of on a fair legal basis. It is not realistic to expect that self represented parties will vanish from the system even if legal aid is increased. Nor is it realistic to expect that the legal skills lawyers acquire through years of university training, articling and experience, can be taught to self –represented parties in information sessions. It is simply not possible to learn the rules of evidence in a webinar. Yet the rules of evidence are not an esoteric exercise. These rules have been developed over centuries to delve into the truth. In cases with self-represented parties the only person in the court room who knows the rules of evidence is the judge. An inquisitorial model would enhance the judge’s ability to determine the facts.
The Committee is not alone in proposing radical changes to our family law system. Let’s hope that this time the province and federal government will listen and take action.
[i] Action Committee on Access to Justice in Civil and Family Matters Meaningful Change for Family Justice: Beyond Wise Words, April 2013.
Perron v Perron is a custody case decided by the Ontario Court of Appeal where the issue of language education featured prominently. It contains interesting commentary not only on the status of French in Canada and education as an aspect of custody, but also on the importance of timely appeals and the impact of status quo.
The parties were married in 1996 and have three children. The father was a native French speaker who taught at a homogenous French language school. The mother was a native English speaker with some knowledge of French, whose mother was francophone.
When the parties separated in 2006, the three children were enrolled in French Immersion, a program to which both parents had agreed. The father changed his mind after separation and wanted the children enrolled in a homogenous French language program. The mother objected, stating her desire that the children receive education in both English and French, as was the case in French Immersion.
At trial, the father asked for sole custody, or in the alternative, joint custody of the children and the mother sought sole custody. As an incident of custody, the father also asked for an order stipulating that the children be enrolled in a homogenous French language program. After a ten day bilingual trial, the Superior Court judge awarded custody to the mother with access rights to the father. The trial judge’s reasons were silent on the issue of the children’s language education.
The father appealed, claiming that the trial judge should have considered whether it was in the best interests of the children to order homogenous French language education for the children as a condition of awarding custody to the mother. He also asked for an order requiring the mother to enroll the children in a homogenous French language school.
The Court of Appeal decision unequivocally recognizes the essential role of the French language in Canada and extolled the virtues of homogenous French language education. Interestingly, and despite the Court of Appeal’s confirmation that the trial judge erred in failing to consider ordering homogeneous French language schooling as a condition of custody order, the court had ruled against the father. Acknowledging that courts regularly include conditions such as those requested by the father, the court still declined to move the children to a homogenous French language school. Considering that more than two years had elapsed between the trial and the appeal, the court found it would be contrary to the children’s best interests to mandate a change in school. The children had spent all of their educational careers to date in an Immersion program. They were in Grades 5, 3 and 2 respectively at the time of the appeal and had never known anything but French Immersion. The court felt this fact was fatal to the father’s appeal. Despite the advantages the children would have enjoyed through homogenous French language instruction, a change in schools would not be made as it was not in their best interests.
At what point after separation do former spouses truly have economic independence from one another? Child support obligations tie parents together until the children become independent adults. That may be a lengthy period of time after separation but it is a defined period. For spousal support obligations there may be no clear end date to the obligation. Unless former spouses have agreed to release each other from future claims or have agreed to a fixed term limit for support, the obligation can continue indefinitely. That leaves open the possibility of ongoing legal expense and uncertainty. Spousal support may be adjusted to reflect changes in the former spouses’ lives such as retirement, job loss, remarriage or ill health. There is a lack of clarity in how and when spousal support should be adjusted in the years after the initial settlement. One of the most contentious questions is whether a support payor is required to share increases in income which occur after the separation.
Spousal support is justified in one of three ways: (i) the couple agreed to spousal support, perhaps by a marriage contract; (ii) one of the spouses was disadvantaged economically by the relationship and has a right to compensation; or (iii) one of the spouses is in need. The amount of spousal support should reflect the couple’s lifestyle during their relationship and is directly related to the payor spouse’s income at the time of the separation. What if a support payor’s income increases substantially in the years after separation? Does the support recipient have a right to come back and ask for more? The answer is not at all clear. Courts have not dealt consistently with these cases. The uncertainty in this area promotes conflict and litigation.
The argument in favour of allowing a support recipient to share in the payor’s good fortune post – separation is that in some respect that success relates to the other spouse’s contribution during the marriage. That may be because the payor spouse acquired professional qualifications, started a business, or started to climb the corporate ladder during the marriage which led to financial success later. On the other hand, post-separation success may be largely attributable to the hard work and creativity of the payor spouse. Others, such as a new spouse, adult child or business partner may have contributed to the post-separation success. The idea that spouses acquire a property interest in each other’s careers has long since been rejected by Ontario courts, yet sharing post separation income increases looks a lot like sharing ownership of a career.
Courts are more likely to order a payor spouse to share increased income if it is earned in the same business in which the spouse worked during the relationship. Also, an increase in income close in time to the separation is more likely to be shared than when the increase comes many years later. Some courts require very specific contributions to the ultimate benefit, such as paying for a spouse’s professional education. Other courts have accepted typical domestic services such as caring for children or the household as being sufficient to entitle a spouse to increased post-separation income.
The uncertainty as to whether or not post-separation increases in income will have to be shared with a former spouse can generate conflict and litigation. This possibility is yet another good reason why it is advantageous to negotiate a lump sum payment of spousal support with a release or, at least, a time limit on support payments to mitigate this risk.
Restructuring is what family law needs, says the as-of-yet unreleased report from the Cromwell committee to Chief Justice McLachlin of the Supreme Court of Canada. No kidding. Haven’t family lawyers and parties been saying exactly that forever? I know I have been…
The Globe and Mail obtained a copy of the Report of the Action Committee on Access to Justice in Civil and Family Matters expected to be released this month. Critical of the adversarial system, we are told that the report suggests a total restructuring of the family courts in order to shift the focus to mediation and settlement. The litigation process should be streamlined and used only as a last resort. Family lawyers and, more importantly, family law litigants have known for years that the system is broken. The report makes a series of recommendations urging an overhaul of the current system, including:
The creation of unified family courts across the country, thereby eliminating the problems inherent in a system with both provincial and federal systems;
The imposition of severe sanctions in the form of heavy cost awards against parties who thwart settlement or behave badly in the litigation;
Stressing the importance and value of family law in law school curricula, in order to recognize the fact that family law disputes affect more Canadians than any other single area of law and, hence, lawyers should be trained to handle these cases;
Increased legal aid funding for family cases; and
I strongly support what it appears the recommendations will be and await the release of the full report. From all that I have read so far, however, it appears that the report is missing a recommendation that I consider essential to a reduction in the need for access to the family courts: the education of the general public. Let me explain.
Most everyone in this country will be impacted by family law at some time in their lives, either knowingly or not. This is because the majority of Canadians enter into at least one intimate and significant relationship in their approximately 80 years on this planet. How do they decide whether or not they want the law governing property division on marriage breakdown to apply? They really don’t. How do they know when two people living together count as spouses under the law? They don’t. How do they know what their obligations are to their children, and even their step-children, if they separate? Again, they don’t. But they should.
People butt up against the family law system most often at a time of crisis. Marriages or relationships are ending, emotions are high and much of the damage has already been done. That is why the Family Information Sessions are too little too late. These are two hour sessions mandated by the Court where a lawyer and a social worker present information about the effects of separation and divorce on parties and children, alternatives to litigation and court process. Unfortunately, parties are only required to attend the Family Information Sessions when litigation is started. By that time, most of the facts that will frame the outcome of the case have already been set. For example, married spouses in Ontario are required to equalize their property on marriage breakdown. Cohabiting spouses are not. Hence, whether or not a couple married all those years ago has a significant financial impact. As another example, a party may have, by steps taken or omitted during the relationship, unwittingly established a child or spousal support obligation.
I do not like the idea of law applying to people without their knowing it. But in family law, this happens all the time. Couples marry, or don’t, without knowing what the future impact of that decision could be, which I believe is dangerous. Family law is not intuitive. It impacts in ways that are unexpected. This leads to people who feel ill-used and unfairly treated by the system. These people are more likely to challenge the results of the laws they consider unjust and, hence, litigate their family law matters. Even if they choose not to litigate, uninformed parties take longer to resolve their matters. They must first get over feeling duped and then learn how the law applies to them before they can take any steps towards settlement.
Education is the only answer to this problem. Before a couple gets married, it is imperative that they both know how the law would impact them upon divorce. Family Information Sessions are a great idea but, in my mind, are timed wrong. People need to attend such sessions before they marry, not when they are ending a relationship. Parties require a licence to marry. Why not mandate that, before a licence is granted, the couple must attend a program similar to the Family Information Session, where information about the law can be shared. Couples who choose not to marry would not get the benefit of information this way, so we would need alternate dissemination options but it would, at least, educate the marrying population. Get them when they need something from us, I say. We have a captive audience – let’s educate them.
Our globalized economy has more and more families on the move with ties to a number of jurisdictions. Families migrate to follow business opportunities with ease. While a family is intact the question of where their real home is of little importance. They may move back and forth between their place of birth and overseas jurisdictions. A couple may have two distinct places of origin, meet and form a family in a third and move on from there. When a relationship fails, the jurisdiction in which family law issues are settled suddenly becomes of fundamental significance. Rights to share in property, to spousal and child support, to the care and custody of children and, even, to divorce vary enormously between different jurisdictions. The choice of the law that will be applied and the jurisdiction in which any legal dispute will be resolved may determine the outcome favourably or unfavourably for each party.
Ontario has some of the most generous child and support provisions for recipient spouses in the world. Ontario imposes broad rights to share in the value of property at the end of a marriage. Our province also has even handed custody and access law with no formal advantage given to either mothers or fathers. This legal framework is advantageous to some and disadvantageous to others. There are clear incentives to selecting Ontario and to avoiding this jurisdiction, depending on a spouse’s situation and goals. A recent Ontario Court of Appeal decision, Wang v. Lin 2013 ONCA 33 provides some guidance as to how these cases will be decided and in so doing emphasizes the importance of the family’s “real home” in these decisions.
In Wang v. Lin, the family were all Chinese by birth. The parents married in China and had two children born in China. The family moved to Ontario as permanent residents in 2005. The mother and both children resided in a family home in Ontario, obtained OHIP cards, attended school in Ontario and all three became Canadian citizens. The father remained in China looking after the family businesses. He lost his permanent residency status in Canada and did not become a Canadian citizen. In 2010, the mother and two children moved back to China where the family lived together. The children attended Chinese schools and spent time with both parents and extended family. The mother’s evidence was that this move was intended to be temporary with the goals of improving the children’s Mandarin skills and for the father to obtain legal status to reside, again, in Canada. They kept their Ontario home.
In April, 2012, the mother returned to Ontario where the parties still owned a home. She started a claim for a divorce, property claims under Ontario family property law, child and spousal support, and custody of the children. She brought an application for a world- wide injunction to freeze her husband’s assets which was directed not only to China and to Canada but also to the British Virgin Islands where she obtained an order against the husband’s corporate assets in that jurisdiction. The husband responded by seeking to stay the Ontario action for lack of jurisdiction. Although when the wife started the Ontario action the children were living in Beijing and attending school there, the wife subsequently moved the children to Ontairo and re-registered them in the Ontario school that they had previously attended. On learning this, the husband started a family law application in China and also moved in Ontario for the children to be returned to China.
The wife’s application was under the federal Divorce Act, the provincial Family Law Act, and the Children’s Law Reform Act. Oddly enough there are different jurisdictional tests under each piece of legislation despite the fact that most family cases involve more than one of these statutes. Simply put, to obtain a divorce at least one of the spouses must have resided in Canada at least one year before starting the claim. For spousal, child support or custody and access claims under the Divorce Act, either spouse may make a claim if ordinarily resident in a province at the outset of the lawsuit or if both spouses accept the jurisdiction. Of course, if there is no jurisdiction to grant a divorce then a court could not make an order for support, custody or access under the Divorce Act. Under the Family Law Act which governs property claims and spousal and child support claims where no divorce is sought or needed, the common law requirement that there be a real and substantial connection between the claim and Ontario governs The Court of Appeal held that ordinary residence of the family or “their real home” is a presumptive connecting factor relevant to jurisdiction. Even if jurisdiction is taken, Ontario family property law only applies if the spouses’ last habitual residence together was Ontario or they consent. The Children’s Law Reform Act has very specific jurisdictional terms which require a child to have a habitual residence in Ontario except in the rarest of cases.
For this family, the Court of Appeal had no difficulty in concluding that ordinary residence of the parties or, in more direct language, their “real home” was in China. The existence of an intention to move back to Ontario was not sufficient to displace the facts that at the outset of the Ontario application, the family lived together in China in a family home there, the children attended school there and had close relationships with extended family there. The wife’s claims in Ontario were dismissed with an Ontario court only permitted to decide the question of whether there should be an interim solution for the children who were enrolled in Ontario schools by the time the appeal was heard.
The result in Wang v. Lin is clear enough for that family. The wife’s decision to start an application in Ontario while her children were still living in China and attending school there is stark enough to have decided the case. The fact that the family were living together in China and could not live together in Ontario as the father did not have legal immigration status here was also an important factor. The focus on identifying a family’s real home may not always be so easily determined, however. What if this family were of Canadian birth and origin and had moved to China with an intention to move back to Ontario in the foreseeable future? In that case would a court so quickly dismiss the relevance of the family intention and ownership of a home here? What if the mother had been of Canadian origin and the father of Chinese origin, with extended family in both countries? Would that have changed the result? I suspect that finding a family’s real home will not be an easy task in many cases. Given the real financial and personal implications of both choice of jurisdiction and the law to be applied, no doubt we will see many more families in these disputes.
In January 2013, an experienced Ontario family court judge, the Honourable Madam Justice Mesbur, ruled that a British civil union between a same sex couple would be recognized as a marriage in Ontario for the purposes of property division, support and, ultimately, divorce.
A conservative hold out, the United Kingdom does not permit same sex marriage. Same sex couples are, however, are offered the parallel regime of being permitted to enter into “civil unions”. These civil unions, offered only to same sex partners, provide them with virtually all of the rights and responsibilities accorded to married couples other than the name.
In Hincks v. Gallardo this case, Wayne Hincks and Gerardo Gallardo entered into a civil union in Britain in October of 2009. On January 15, 2010, the couple relocated to Toronto. After their relocation, the parties’ relationship slowly began to deteriorate. In February 2011, Mr. Gallardo filed for divorce in Ontario, but then withdrew the application. In March 2011, Mr Hincks commenced a proceeding. In response, Mr Gallardo took the position that the parties were not married and, as such, the application disclosed no cause of action. Mr Hincks then asked the Ontario court to find that the civil union qualified as a marriage and could be dissolved according to Ontario law.
The sides were drawn. The Attorney General of Canada sided with Mr. Gallardo and argued that the only available relief for Mr Hincks was in England under the Civil Partnership Act. Since the British legislation made it clear that a civil union was not a marriage, who was Canada (a colony at best) to argue?
On the other side were the Attorney General of Ontario and Mr Hincks. They asserted that, since the rights and responsibilities in a civil union were identical to those in a marriage, it should simply be considered a marriage. The old “if it walks like a duck….” argument.
Justice Mesbur issued a declaratory order that the civil partnership was a “marriage” and that, as such, the parties were to be considered “spouses” as defined by the Ontario legislation. Her Honour’s decision was primarily based on a refusal to compound or condone the discriminatory denial of marriage to same sex couples in Britain:
The parties entered into a civil partnership in the UK. They could not choose to get married in the UK because that country does not permit same sex couples to marry. That policy position runs contrary to Canadian public policy because Canadian law finds discrimination on the basis of sexual orientation prohibited under the Charter. Canadian law specifically holds that only equal access to marriage for civil purposes would respect same sex couples’ right to equality without discrimination. Canadian law specifically holds that a civil union, as an institution other than marriage, would not offer same sex couples that equal access and would violate their human dignity, in breach of the Charter.
Failing to recognize this UK civil partnership as a marriage would perpetuate impermissible discrimination, primarily because in the UK 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 UK. 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 UK, but had to enter into a civil partnership there instead, they have suffered discrimination on the basis of their sexual orientation.
In the particular circumstances of this civil partnership, where the parties were denied the choice to marry in the place where the union was celebrated I would perpetuate impermissible discrimination if I failed to recognize their civil partnership as a marriage.
This ruling continues the proud Ontario tradition (does a mere decade qualify as a proud tradition? ) of respect for freedom of choice and recognition of all kinds of relationships that started with our very own 2003 “right to marry” case Halpern et al. It was heartening to read Justice Mesbur’s decision confirming the Court’s commitment to the express values of equal access to marriage for all couples, same sex or not. We’ve come a long way, baby.