For Wayne Hincks, getting a divorce has become a federal matter.
Hincks and his partner, both Canadian citizens, were joined in a civil union in the UK before returning to Canada to live. But when the relationship ended and he tried to file divorce proceedings, he was informed that his civil partnership wasn’t equivalent to a civil marriage under Canadian law.
What’s worse, federal Attorney General Rob Nicholson has now intervened to argue this case.
“Please be advised that the Attorney General of Canada will be intervening in this proceeding to oppose the issuance of a declaration that a civil partnership registered in the United Kingdom is a ‘marriage’ for the purpose of the Civil Marriage Act and that the parties to such a partnership are spouses within the meaning of the Divorce Act,” reads the letter from Nicholson’s office.
However, Egale Canada is pleading with the federal government to think again.
“Civil unions in the UK are recognized, for all intents and purposes, as equivalent to marriage and the same should hold in Canada,” says Helen Kennedy, executive director of Egale Canada.
Kennedy sent an open letter to Nicholson, asking him to reconsider his decision to intervene in the case.
“We think it pretty much has the potential to slip through the back door to reopen the issue of marriage in that it won’t recognize civil partnerships from the UK,” Kennedy says, a concern that NDP queer issues critic Randall Garrison shares.
“We’ll be writing to or asking the minister to clarify the government’s position, and I hope it’s not a backdoor way of carving away at same-sex rights,” Garrison says. “It seems to be quite clear that people who enter into a civil partnership in good faith would expect that to be recognized in Canada.
“We’re going to be very clear in calling for a recognition of civil partnerships from other countries as having the same status as marriage in this country, and that includes, obviously, the right to fair treatment for divorce, which is what this specific case is about,” Garrison adds.
In her letter, Kennedy notes that Spain, like Canada, allows same-sex marriage yet recognizes UK civil partnerships as the equivalent of marriage.
Liberal justice critic Irwin Cotler, who was justice minister when changes to the Civil Marriage Act were made to allow same-sex marriage across the country, says the government should not be intervening in this case.
“We should support the intent and the effect of the Civil Marriage Act, which was to provide equal access to gays and lesbians to civil marriage, and this approach by the government of Canada in the manner of its intervention effectively undermines that,” Cotler says, adding that he thinks the government’s case is precarious.
“When I referred the legislation to the Supreme Court, the Supreme Court itself was unanimous to the effect that equality was something which not only flowed from the Charter of Rights and Freedoms but was indeed mandated by it,” Cotler says. “I would expect that would be the contemporary interpretation if the matter were to go to the courts in that regard.”
Nicholson’s office has declined further comment, saying the matter is before the courts; however, he did speak on the issue in the House of Commons on Oct 6. "We have been very clear that we are not reopening the issue," he said. "But it is a legal dispute over definitions. As this matter is before the court, I look forward to the decision of the court."