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.
The issue of same sex marriage in the UK is now high on the political agenda, and the Government recently 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.