Are Foreign Same Sex Couples Eligible for a Divorce in Canada?

One interesting case that took place in Ontario explores the question of whether, for the purposes of divorce, a same-sex union in another country can constitute a “marriage” in Canada.

The couple was two men named Wayne and Gerardo, who met in 2009 and took part in what is called a “civil partnership” ceremony in the U.K. (At the time, the term “marriage” in U.K. law was still specifically reserved for opposite-sex relationships. However, the U.K. began recognizing same-sex marriage in 2013.)

Wayne and Gerardo executed all of the procedural requirements, and exchanged rings.

The decided to move to Canada (Wayne was a Canadian citizen), and Gerardo obtained a U.K. national identity card which identified him as “spouse/partner.” The looked into have a civil marriage ceremony in Canada, and were told that it was unnecessary since they were already in a U.K. civil partnership.

They then separated in 2011, and Wayne filed for divorce in Ontario. He requested equalization of net family property, and spousal support pursuant to the Ontario’s Family Law Act.

Gerardo claimed the parties were not actually married – because “civil partnerships” are not considered “marriages” in the U.K. He argued that an Ontario court had no jurisdiction to grant a divorce or to grant equalization under the Ontario Family Law Act unless the parties were married first.

Wayne then applied to the court for a statement that their relationship was a “marriage” for the purposes of Canadian Family Law.

The court opined that “marriage” is defined by the Civil Marriage Act as “the lawful union of two persons to the exclusion of all others.” Since Wayne and Gerardo’s civil partnership met that definition, they were determined to be a married couple Canadian law is also entitled to treat a foreign civil partnership as a “marriage” if it determined it to be such.

In order to resolve this matter, the court had to considered the legislative and policy framework for marriage and civil unions in both Canada. The court determined that the law is flexible to the extent that it is necessary to meet the evolving realities of Canadian society.

As such, the court declared that Wayne and Gerardo’s civil partnership was a “marriage” under the Canada Civil Marriage Act. To determine otherwise, it said, would be to encourage discrimination and to “run contrary to the express values of Canadian society, expressed in both the case law, and the statute itself.”