Same-sex unions recognized in other jurisdictions are now recognized in Ontario as valid marriages, the Ontario Superior Court ruled earlier this year.*
In jurisdictions such as the United Kingdom, same-sex couples are not allowed to be married but are nonetheless entitled to have their relationship recognized by the state as a civil partnership or civil union. It’s notable that only same-sex couples are allowed to enter into civil unions in the UK, while only opposite-sex couples may be married.
Under Ontario law, married spouses are entitled to statutory property division rights, while common-law spouses do not share this entitlement. For the purposes of family law in Ontario, therefore, it’s important to determine whether couples in civil unions are considered married or not, for family law purposes.
The family law bar in Ontario has indeed been struggling with this issue for some time. On the one hand, the conflict of law rule determines the validity of a marriage according to the law of the place where the marriage was celebrated. On the other hand, many contemporary jurists adopt a contextual approach when determining family law issues, rather than relying on rigid formalities. I personally undertook extensive research on this issue last year and reached the opinion that civil unions, for family law purposes, should be recognized as marriages.
It turned out that I was on the right track. The honourable Madame Justice Mesbur of the Ontario Superior Court ruled that indeed civil unions lawfully granted in a foreign jurisdiction are recognized in Ontario as marriages.
Justice Mesbur adopted a contextual approach in considering the issue at bar. Her honour referred to a British decision where the court described civil unions as essentially having “the same rights and obligations… with the exception of the form of ceremony and the actual name.” Indeed, a married same-sex couple from Canada were recognized as civil partners in the UK, so why not recognize British civil partners as married in Ontario?^
When they were in the UK, the parties did not have a choice between marriage or civil partnership. They were not allowed to be married. Justice Mesbur held that this policy position runs contrary to Canadian public policy because Canadian law finds discrimination on the basis of sexual orientation prohibited under the Charter. To hold otherwise will only perpetuate the long history of discrimination that gay people have suffered through.
In the end, a declaratory order was issued stating that civil partnership is a marriage under Canadian law.
The decision is undoubtedly helpful in clarifying the previous confusion of legal status of people in lawful civil unions. Nonetheless, until civil unions are recognized by legislation in Canada as marriages, individuals will be required to apply for the same declaration case by case, adding to the costs of separating and divorce.
*Hincks v. Gallardo, 2013 ONSC 129 (CanLII)
^Wilkinson v. Kitzinger,  EWHC (Fam. Div.)
This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.