Hincks v. Gallardo, (2014) 323 O.A.C. 90 (CA)

• Judge: Gillese, van Rensburg and Hourigan, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 06, 2014
• Jurisdiction: Ontario
• Citations: (2014), 323 O.A.C. 90 (CA);2014 ONCA 494

Hincks v. Gallardo (2014), 323 O.A.C. 90 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JL.004

Wayne Trevor Hincks (applicant/respondent in appeal) v. Gerardo Gallardo (respondent/appellant in appeal) and Attorney General of Canada, Attorney General of Ontario, and Egale Canada Inc. (intervenors)

(C56581; 2014 ONCA 494)

Indexed As: Hincks v. Gallardo

Ontario Court of Appeal

Gillese, van Rensburg and Hourigan, JJ.A.

June 26, 2014.

Summary:

On October 21, 2009, Gallardo and Hincks entered into a civil partnership under the United Kingdom's Civil Partnership Act. At that time, as a same-sex couple, they were not permitted to marry in the UK. The civil partnership regime then extant operated as a separate but equal system exclusive to same-sex couples and was the legal equivalent of marriage under UK law. The parties moved to Ontario. A year later, they separated. Gallardo commenced and then discontinued an application in the Superior Court seeking a divorce and other relief pursuant to the provisions of the Divorce Act (DA) and the Family Law Act (FLA). Hincks also brought an application seeking relief under those statutes. Gallardo then took the position that the parties were not spouses under the DA and the FLA, and Hincks therefore did not have the rights of a spouse under either statute. Hincks moved for a declaration that the parties' civil partnership was a marriage under the Civil Marriage Act (CMA).

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 129, issued a declaratory order that the parties' civil partnership was a "marriage" as defined by the CMA, and that the parties were "spouses" as defined by the DA and s. 1 of the FLA. Gallardo appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 8318

Canadian Charter of Rights and Freedoms - General - Application - Statutory interpretation - Preference to Charter values - [See Family Law - Topic 326 and Family Law - Topic 3202 ].

Family Law - Topic 151

Marriage - General - Proof of marriage - On October 21, 2009, Gallardo and Hincks entered into a civil partnership under the United Kingdom's Civil Partnership Act - The parties moved to Ontario - A year later, they separated - A motion judge issued a declaratory order that the parties' civil partnership was a "marriage" as defined by the Civil Marriage Act, and that the parties were "spouses" as defined by the Divorce Act and s. 1 of the Family Law Act - Gallardo appealed - He submitted that the motion judge made a palpable and overriding error in finding that the parties intended to change their status to the equivalent of being married - The Ontario Court of Appeal stated that "This submission is premised on the notion that the parties' subjective intent regarding the effect of entering into a civil partnership is relevant to the court's statutory interpretation analysis. However, the subjective intention of the parties is only relevant to the issue of whether the civil partnership was voluntary. There was no evidence that either party entered the civil partnership under duress or fraud, nor was there evidence that either party lacked the capacity to appreciate the legal consequences of their actions. In the absence of such evidence, the court must consider the legal effect of the union, which, according to the expert evidence, was to bestow upon the parties all the rights and responsibilities of marriage" - See paragraphs 33 to 34.

Family Law - Topic 156

Marriage - General - Status of parties - Determination of - [See Family Law - Topic 326 ].

Family Law - Topic 326

Marriage - Practice - Declarations respecting existence of marriage - On October 21, 2009, Gallardo and Hincks entered into a civil partnership under the United Kingdom's Civil Partnership Act - At that time, as a same-sex couple, they were not permitted to marry in the UK - The civil partnership regime then extant operated as a separate but equal system exclusive to same-sex couples and was the legal equivalent of marriage under UK law - The parties moved to Ontario - A year later, they separated - A motion judge issued a declaratory order that the parties' civil partnership was a "marriage" as defined by the Civil Marriage Act, and that the parties were "spouses" as defined by the Divorce Act (DA) and s. 1 of the Family Law Act (FLA) - Gallardo appealed - The Ontario Court of Appeal dismissed the appeal - The motion judge's interpretation of the terms "spouses" and "marriage" was consistent with one of the fundamental purposes of the DA and the FLA, i.e., to provide an equitable and certain process for resolving economic issues on the dissolution of a conjugal relationship - To the extent that any ambiguity existed in the relevant legislation, the motion judge's interpretation was consistent with Charter values - See paragraphs 27 to 32.

Family Law - Topic 1002

Common law, same-sex or adult interdependent relationships - Spouse - Meaning of - [See Family Law - Topic 326 ].

Family Law - Topic 2325

Maintenance of wives and children - Maintenance of wives - Spouse - What constitutes - [See Family Law - Topic 326 ].

Family Law - Topic 3202

Separation agreements, domestic contracts and marriage contracts - General - What constitutes - On October 21, 2009, Gallardo and Hincks entered into a civil partnership under the United Kingdom's Civil Partnership Act - At that time, as a same-sex couple, they were not permitted to marry in the UK - The civil partnership regime then extant operated as a separate but equal system exclusive to same-sex couples and was the legal equivalent of marriage under UK law - The parties moved to Ontario - A year later, they separated - On a motion brought by Hincks, a motion judge issued a declaratory order that the parties' civil partnership was a "marriage" as defined by the Civil Marriage Act, and that the parties were "spouses" as defined by the Divorce Act (DA) and s. 1 of the Family Law Act (FLA) - Gallardo appealed - He submitted that the motion judge erred in law by failing to consider the fact that Hincks could enforce his rights under Part IV of the FLA - That part of the legislation dealt with domestic contracts - Gallardo asserted that a civil union qualified as a foreign domestic contract and could be enforced under s. 58 - The Ontario Court of Appeal rejected the argument - A domestic contract was distinct from a U.K. civil partnership - Even if the language of Part IV of the FLA could be construed in the manner suggested by Gallardo, thus giving rise to an ambiguity, the court would decline to adopt his interpretation - The court stated that "The notion of requiring same-sex couples to enforce their rights through this cumbersome and ill-suited process is in effect the same as sanctioning a 'separate but equal' regime for same-sex couples. Such a parallel regime has been expressly rejected by this court in Halpern and is inconsistent with Charter values" - See paragraphs 37 to 42.

Family Law - Topic 3501

Divorce - Jurisdiction - General - Existing marriage of parties - [See Family Law - Topic 326 ].

Family Law - Topic 3507

Divorce - Jurisdiction - General - Foreign marriages - [See Family Law - Topic 326 ].

Practice - Topic 9043

Appeals - Law on appeal - Change in law between trial and appeal (incl. statutory) - On October 21, 2009, Gallardo and Hincks entered into a civil partnership under the United Kingdom's Civil Partnership Act - At that time, as a same-sex couple, they were not permitted to marry in the UK - The civil partnership regime then extant operated as a separate but equal system exclusive to same-sex couples and was the legal equivalent of marriage under UK law - The parties moved to Ontario - A year later, they separated - A motion judge issued a declaratory order that the parties' civil partnership was a "marriage" as defined by the Civil Marriage Act, and that the parties were "spouses" as defined by the Divorce Act and s. 1 of the Family Law Act - Gallardo appealed - Gallardo criticized the motion judge for failing to consider the U.K.'s recent passage of the Marriage (Same Sex Couples) Act ("the U.K. Marriage Act") - The Ontario Court of Appeal stated that the motion judge could not be faulted for failing to take into account legislation that had not been enacted at the time of the motion, or at the time of the release of her reasons - In any event, even if all parts of the U.K. Marriage Act were fully in effect, it would make no difference to the result because the parties' relationship was only ever governed by the legislative scheme in place at the time they entered into their civil union - See paragraphs 35 to 36.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Family Law - Topic 326 ].

Statutes - Topic 1411

Interpretation - Construction where meaning is not plain - General principles - Avoidance of conflict with Charter - [See Family Law - Topic 326 ].

Cases Noticed:

Nova Scotia (Attorney General) v. Walsh - see Walsh v. Bona.

Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 2002 SCC 83, refd to. [para. 20].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 27].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 27].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 32].

Statutes Noticed:

Civil Marriage Act, S.C. 2005, c. 33, generally [para. 4].

Civil Partnership Act 2004 (U.K.), c. 33, generally [para. 1].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, generally [para. 2].

Family Law Act, R.S.O. 1990, c. F-3, sect. 1 [para. 4].

Authors and Works Noticed:

Mossman, Mary Jane, Families and the Law: Cases and Commentary (2012), p. 363 [para. 39].

Counsel:

Michael G. Cochrane, for the appellant;

No one appearing for the respondent;

Cynthia Petersen and Christine Davies, for the Intervenor, Egale Canada Inc.;

Courtney Harris, for the Intervenor, Attorney General of Ontario;

No one appearing for the Intervenor, the Attorney General of Canada.

This appeal was heard on May 6, 2014, before Gillese, van Rensburg and Hourigan, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Hourigan, J.A., and was released on June 26, 2014.