On Monday 7 January 2013, the Superior Court of Ontario declared that a UK Civil Partnership is a marriage under Canadian Law.
The declaration was made in proceedings between Wayne Hincks and Gerardo Gallardo, a Canadian resident same sex couple who had entered into a Civil Partnership in London prior to their relocation to Canada in 2010. In 2005, in order to comply with its equalities Charter, Canada introduced legislation enabling two people to marry regardless of whether they were of the opposite or same sex.
Currently under UK Law entering into a Civil Partnership is the only method by which same sex couples can change their legal status from single to something different. They are not permitted to marry; instead through the Civil Partnership Act 2005 the UK has developed a distinct and parallel system exclusively for gay people. The issue of same sex marriage in the UK is now relatively high on the political agenda. On 11 December 2012, the British Government published its response to its "equal civil marriage" consultation announcing its intention to introduce legislation this year allowing same sex marriage.
Following the breakdown of their relationship, Mr Hincks brought proceedings for divorce in Ontario, Canada. He argued that his UK Civil Partnership should be recognised by the Canadian Courts as equivalent to a Canadian same sex marriage. Mr Gallardo opposed the application arguing that the parties were never married.
The Attorney Generals for Canada and the State of Ontario both intervened in the proceedings. The Attorney General for Canada agreed with Mr Gallardo that the parties were not married, whilst the Attorney General for Ontario argued that under Canadian Law, "marriage" should be given a broad and liberal interpretation to include relationships equivalent to marriage, such as the UK's Civil Partnership.
Miles Geffin, a Legal Director in Mishcon de Reya's Family Department, gave expert evidence to the Canadian Court on behalf of Mr Hincks regarding the nature and effects under English Law of entering into a Civil Partnership. Making its declaration, the Canadian Court ruled that because Mr Hincks and Mr Gallardo could not marry in the UK but had to enter into a Civil Partnership there instead, they had suffered discrimination on the basis of their sexual orientation. The Court, therefore, held that not to recognize a UK Civil Partnership as a marriage would run contrary to the values of Canadian society and would constitute impermissible discrimination against same sex partners.
This Canadian ruling is significant for anyone interested in the debate surrounding equal civil marriage in the UK, not least because a senior judge in a Commonwealth country has expressed the clear opinion that the UK's distinction between Civil Partnership and marriage is discriminatory to gay people.