Hincks v. Gallardo, 2014 ONCA 494

Hincks v. Gallardo; Attorney General of Canada et al., Intervenors

[Indexed as: Hincks v. Gallardo]

Ontario Reports

Court of Appeal for Ontario,

Gillese, van Rensburg and Hourigan JJ.A.

June 26, 2014

120 O.R. (3d) 721 | 2014 ONCA 494

Case Summary

Family law — Marriage — Parties entering into civil partnership in United Kingdom at time when same-sex marriage was not permitted there — Civil partnership regime being legal equivalent of marriage under U.K. law — Motion judge not erring in finding that parties' civil partnership was "marriage" as defined by Civil Marriage Act and that parties were "spouses" as defined by Divorce Act and s. 1 of Family Law Act — Civil Marriage Act, S.C. 2005, c. 33 — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) — Family Law Act, R.S.O. 1990, c. F.3.

The parties, a same-sex couple, entered into a civil partnership in the United Kingdom under the Civil Partnership Act 2004 (U.K.), 2004, c. 33 at a time when same-sex marriage was not legal in the U.K. The parties, who were Canadian citizens, moved to Ontario and ultimately separated. The respondent brought an application for a divorce and other relief pursuant to the Divorce Act and the Family Law Act. The appellant took the position that the parties were not spouses under these statutes. The 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. She found that the civil partnership regime was the legal equivalent of marriage under U.K. law. She noted that this was not a case where same-sex couples had a choice as to whether to marry or cohabit, and found that failing to recognize a civil partnership as a marriage would thwart the very choice the parties had made to enter into the functional equivalent of a marriage. She limited recognition of civil partnerships as marriages to circumstances where same-sex marriage is prohibited and civil partnership is essentially identical to marriage. The appellant appealed.

Held, the appeal should be dismissed.

The motion judge's interpretation of the terms "spouses" and "marriage" was entirely consistent with the modern approach to statutory interpretation and achieved one of the fundamental purposes of the two Acts: it provided the parties with an equitable and certain process for resolving their economic issues arising out of the dissolution of their relationship. She also interpreted the relevant legislation in a manner that was consistent with Canadian Charter of Rights and Freedoms values. She did not err in law by failing to consider that the respondent could enforce his rights under Part IV of the Family Law Act, which deals with domestic contracts. A domestic contract is distinct from a U.K. civil partnership. The terms of a civil partnership are not subject to bargaining between the parties but imposed upon them by the state. Part IV of the Family Law Act is intended to deal with agreements entered into by individuals. Even if the language of Part IV of the Family Law Act could be construed as including civil unions, requiring same-sex couples to enforce their rights through the cumbersome and ill-suited process set out in Part IV was in effect the same as sanctioning a "separate but equal" regime for same-sex couples. Such a parallel regime has been expressly rejected by the Court of Appeal and is inconsistent with Charter values. [page722]

Cases referred to

Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550, [2004] S.C.J. No. 20, 2004 SCC 22, 236 D.L.R. (4th) 193, 318 N.R. 1, [2004] 6 W.W.R. 1, J.E. 2004-723, 194 B.C.A.C. 161, 25 B.C.L.R. (4th) 1, 47 R.F.L. (5th) 5, 129 A.C.W.S. (3d) 748; Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63, 2005 SCC 62, 258 D.L.R. (4th) 595, 340 N.R. 305, J.E. 2005-2012, 32 Admin. L.R. (4th) 159, 201 C.C.C. (3d) 161, 18 C.E.L.R. (3d) 1, 36 C.R. (6th) 78, 134 C.R.R. (2d) 196, 15 M.P.L.R. (4th) 1, EYB 2005-97111, 143 A.C.W.S. (3d) 465, 67 W.C.B. (2d) 397; Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, [2002] S.C.J. No. 84, 2002 SCC 83, 221 D.L.R. (4th) 1, 297 N.R. 203, J.E. 2003-102, 210 N.S.R. (2d) 273, 102 C.R.R. (2d) 1, 32 R.F.L. (5th) 81, 119 A.C.W.S. (3d) 42; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, D.T.E. 98T-154, 76 A.C.W.S. (3d) 894

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 15

Civil Marriage Act, S.C. 2005, c. 33 [as am.]

Civil Partnership Act 2004 (U.K.), 2004, c. 33

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52

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

Family Law Act, R.S.O. 1990, c. F.3 [as am.], s. 1 [as am.], Part IV [as am.], s. 58

Marriage (Same Sex Couples) Act 2013 (U.K.), 2013, c. 30

Authorities referred to

Mossman, Mary Jane, Families and the Law: Cases and Commentary (Concord, Ont.: Captus Press, 2012)

Appeal from the order of Mesbur J. (2013), 113 O.R. (3d) 654, [2013] O.J. No. 69, 2013 ONSC 129 (S.C.J.) declaring that the parties' civil partnership was a "marriage" and that parties were "spouses".

Michael G. Cochrane, for appellant.

No one appearing for respondent.

Cynthia Petersen and Christine Davies, for intervenor Egale Canada Inc.

Courtney Harris, for intervenor Attorney General of Ontario.

No one appearing for intervenor Attorney General of Canada.

The judgment of the court was delivered by

HOURIGAN J.A.

[page723]

Overview

1On October 21, 2009, the appellant, Mr. Gallardo, and the respondent, Mr. Hincks, entered into a civil partnership under the United Kingdom's Civil Partnership Act 2004 (U.K.), 2004, c. 33 ("CPA"). At that time, as a same-sex couple, they were not permitted to marry in the United Kingdom. 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 U.K. law.

2A short time after entering into their civil partnership, the parties moved to Ontario. A year later, they separated. The appellant commenced and then discontinued an application in the Superior Court seeking a divorce and other relief pursuant to the provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the "DA") and the Family Law Act, R.S.O. 1990, c. F.3 (the "FLA").

3After the appellant discontinued his application, the respondent brought an application in which he, too, sought relief under those statutes. However, Mr. Gallardo then took the position that the parties were not spouses under the DA and the FLA. Consequently, he argued that the respondent did not have the rights of a spouse under either statute.

4The motion judge issued a declaratory order that the parties' civil partnership is a "marriage" as defined by the Civil Marriage Act, S.C. 2005, c. 33 ("CMA"), and that the parties are "spouses" as defined by the DA and s. 1 of the FLA. Mr. Gallardo appeals, alleging multiple errors of fact and law by the motion judge.

5As I will explain, I do not accept his submissions. I agree with the conclusions reached by the motion judge, and with her very thorough and thoughtful reasons. Her interpretation of the terms "spouses" and "marriage" is entirely consistent with one of the fundamental purposes of the DA and the FLA -- that is, to provide an equitable and certain process for resolving economic issues on the dissolution of a conjugal relationship. To the extent that any ambiguity exists in the relevant legislation, the motion judge's interpretation is consistent with Canadian Charter of Rights and Freedoms values and should be preferred.

6Accordingly, I would dismiss the appeal.

Facts

7Mr. Gallardo and Mr. Hincks are Canadian citizens. They met in Ontario in August 2009. Shortly after, they began a relationship. [page724]

8Mr. Hincks, who is also a U.K. citizen, asked Mr. Gallardo to live with him in England. In October 2009, Mr. Gallardo travelled to the U.K. on a Civil Partnership Entry Visa.

9On October 21, 2009, in London, England, the parties entered into a civil partnership under the CPA. To become civil partners, Mr. Hincks and Mr. Gallardo provided documents to show that neither of them was already married nor a civil partner in another union. Mr. Hincks and Mr. Gallardo were then interviewed separately to ensure that their relationship was genuine and that they understood their rights and responsibilities as civil partners. To formalize their union, the parties signed a civil partnership document in the presence of a registrar and two witnesses.

10In 2009, same-sex couples could not marry in the U.K. However, according to two expert witnesses who provided evidence on the motion, the CPA created a parallel regime to marriage that provided same-sex partners with the same legal, financial and practical benefits and burdens as married spouses.

11On January 15, 2010, the parties relocated to Toronto. Over the following year, the parties' relationship deteriorated and by February 2011, the relationship had ended.

12On February 28, 2011, Mr. Gallardo served an application for divorce on Mr. Hincks. In support of his application, Mr. Gallardo swore an affidavit in which he deposed that he and Mr. Hincks were married in England on October 21, 2009. On March 3, 2011, Mr. Gallardo withdrew his application.

13In March 2011, Mr. Hincks commenced his own divorce application. He claimed divorce, equalization of net family property and spousal support. Alternatively, Mr. Hincks claimed spousal support under the FLA.

14After receiving Mr. Hincks' application, Mr. Gallardo took the position that the parties were not married and that the application disclosed no cause of action. Mr. Hincks then moved for a declaration that the parties' civil partnership is a marriage under the CMA.

15The motion came before Grace J. of the Superior Court of Justice in April 2011. Believing that the requested declaration had ramifications beyond the parties, Grace J. ordered that the Attorney General of Canada and the Attorney General of Ontario should be given notice of and an opportunity to intervene in the proceeding. Both Attorneys General elected to intervene, and the motion was heard in October 2012. [page725]

The Decision Below

16The motion judge first considered the very different constitutional and legislative frameworks in Canada and the U.K. regarding marriage. She stated, at paras. 27-30 and 36:

The issue of whether the former common law definition of marriage as "the voluntary union for life of one man and one woman, to the exclusion of all others" was discriminatory against same-sex couples came before the Ontario Court of Appeal in Halpern v. Canada (Attorney General) [(2003), 2003 CanLII 26403 (ON CA), 65 O.R. (3d) 161]. There, the court expressly held that "separate but equal" partnership legislation that fell short of marriage was contrary to Canada's public policy, was discriminatory and violated the equality guarantees of our Charter.

The court in Halpern specifically found that same-sex couples were excluded from the fundamental societal institution called marriage, saying:

Based on the foregoing analysis, it is our view that the dignity of persons, in same-sex relationships is violated by the exclusion of same-sex couples from the institution of marriage. Accordingly, we conclude that the common-law definition of marriage as "the voluntary union for life of one man and one woman to the exclusion of all others" violates s. 15(1) of the Charter .

As a result, the court struck down the former definition of marriage and reformulated it as "the voluntary union for life of two persons to the exclusion of all others". This new definition of marriage has effectively been codified in the Civil Marriage Act, which also codifies in the Preamble the policy statements the courts have enunciated in Halpern and elsewhere.

To the contrary, the United Kingdom has followed a different policy path. There, a civil partnership is the only method by which gay people can change their legal status from single to something different. They are not permitted to marry; instead, the U.K. has developed a parallel but equal system exclusively for the gay community. In the U.K., a civil partnership and a marriage are legally equal. They are considered substantively equal. This was confirmed by the High Court of Justice, Family Division in the U.K. in Wilkinson v. Kitzinger.

The court's conclusion in Wilkinson is, of course, completely contrary to the Ontario Court of Appeal's conclusion in Halpern concerning Canadian values, public policy and the Charter's equality rights. Indeed, Canada's Civil Marriage Act codifies these very principles in its Preamble, where it says, among other things:

WHEREAS only equal access to marriage for civil purposes would respect the right of couples of the same-sex to equality without discrimination and civil union, as an institution other than marriage, would not offer them that equal access and would violate their human dignity, in breach of the Canadian Charter of Rights and Freedoms;

. . . . . [page726]

AND WHEREAS in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended by legislation to couples of the same sex[.]

17After considering these distinct marriage regimes, the motion judge concluded that to do anything other than recognize the parties' civil partnership as a marriage would "run contrary to the express values of Canadian society, expressed in both case law, and the statute itself and would constitute impermissible discrimination": at para. 37.

18The motion judge went on to carefully consider each of the arguments raised by Mr. Gallardo. She rejected, as being contrary to public policy and Charter values, his argument that a U.K. civil partnership cannot be considered a marriage because it is not recognized as such under U.K. law.

19She found that the order sought would not transform civil partnerships under provincial legislation elsewhere in Canada into marriages because, under Canadian law, the parties had a choice to marry.

20Similarly, she rejected the applicability of the Supreme Court of Canada's decision in Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, [2002] S.C.J. No. 84, 2002 SCC 83, where the court found that opposite-sex couples had a choice to marry or cohabit and that to impose the rights and obligations of a married spouse on a person who had chosen to cohabit would violate the person's autonomy. The motion judge found that those principles were not in issue in this case because, in the U.K., the parties did not have the choice to marry. Indeed, she found that failing to recognize a civil partnership as a marriage would "thwart the very choice the parties made" to enter into the functional equivalent of a marriage: at para. 53.

21The motion judge was also careful to restrict the scope of her order. She stated, at para. 54:

As I see it, recognition of this civil partnership would extend only to a civil partnership sharing these particular characteristics; namely, I would limit recognition only to circumstances where same-sex marriage is prohibited, and the state-authorized alternative, namely, the civil partnership, is essentially identical to marriage except in name, and is restricted only to same-sex couples.

22Mr. Gallardo argued that the parties were free to marry in Ontario if they wished to be married spouses instead of continuing on as civil partners. The motion judge rejected this argument, finding that the requirement to enter into another ceremony would have significant consequences on fixing the valuation date for the division of property under the FLA. [page727]

23On the issue of forum shopping, the motion judge recognized the possibility that the order sought could encourage similarly situated parties to forum shop and choose the more generous rights available to married spouses in Ontario. However, she noted that forum shopping is not uncommon in family law and concluded that it was not a valid reason to decide that the parties' civil partnership could not be treated as a marriage.

24Finally, the motion judge rejected the argument that, because Mr. Hincks could proceed with a dissolution proceeding in the U.K., it was unnecessary to provide him with a right to do so under the DA. She found that such an interpretation of the DA would be discriminatory because it would require same-sex couples, but not opposite-sex couples, to seek relief in the U.K.

25After rejecting the arguments raised by Mr. Gallardo, the motion judge considered and adopted the statutory interpretation arguments advanced by the intervenor, the Attorney General of Ontario. She stated, at paras. 73 and 78-80:

Ontario takes the position that the parties here undertook a formal event that changed their legal status from single to partner, while also living in a relationship that is "functionally equivalent to a married spouse under the Family Law Act, including the mutual expectation of an equitable division of family property upon dissolution of their relationship". In support of this proposition, Ontario points to the expert evidence filed by the parties and Canada. The experts agree that a U.K. civil partnership provides equivalent rights and responsibilities to those which arise from marriage in English law, and is equivalent to marriage in all but name. These equivalent rights and responsibilities include not only the right to dissolution, but also to financial and property relief that is identical to that available to divorcing married spouses under U.K. law.

Ontario suggests it would therefore be illogical to exclude this civil partnership from the definition of "spouse" when this same-sex union would be a legal marriage if performed in Ontario, while recognizing as spouses parties to foreign polygamous marriages that would not be legal marriages if performed in Ontario.

Ontario argues that an interpretation that would recognize these parties as "spouses" under s. 1 of the Family Law Act would be consistent with the objectives of the Act set out in its Preamble. The objectives emphasize marriage as an economic partnership, equality between the spouses and an equitable settlement upon the "breakdown of the partnership".

When the parties entered into their civil partnerships, they voluntarily chose to be governed by an equivalent statutory regime to the one applying to married spouses in the U.K. They chose an economic partnership with equal rights and responsibilities to those of U.K. married spouses on the breakdown of their partnerships. Ontario has no mechanism for "same-sex civil partnerships", but rather a single statutory regime that applies equally to all married spouses, whether same-sex or opposite-sex. I agree with Ontario's argument that when one applies the modern approach of statutory [page728] interpretation to the definition of "spouse" in s. 1 of the Family Law Act, and "broadly and liberally" construes it according to the objectives of the Act, these parties must be considered "spouses" under s. 1.

The Issues

26This appeal raises the following issues:

(i) Did the motion judge err in law in her interpretation of the terms "spouses" and "marriage" under the FLA and the DA?

(ii) Did the motion judge make a palpable and overriding error in finding that the parties intended to change their status to the equivalent of marriage?

(iii) Did the motion judge err in law in failing to consider the effect of new U.K. marriage legislation?

(iv) Did the motion judge err in law in failing to consider the fact that the respondent could enforce his rights under Part IV of the FLA?

Analysis

(i) Interpretation of "spouses" and "marriage"

27At its essence, this case is one of statutory interpretation. The modern approach to statutory interpretation articulated by the Supreme Court of Canada requires a court to consider the words of a statute "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63, 2005 SCC 62, at paras. 9-12, citing Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21.

28The interpretation by the motion judge of the terms "spouses" and "marriage" is entirely consistent with the modern approach mandated by the Supreme Court of Canada. Her interpretation achieves one of the fundamental purposes of the DA and the FLA: it provides the parties with an equitable and certain process for resolving their economic issues arising out of the dissolution of their relationship. In contrast, the interpretation urged upon us by the appellant would result in the parties being effectively treated as legal strangers under the legislation and would force them to assert their economic claims through more limited and less predictable means, such as trust claims. [page729]

29Under the FLA, parties to relationships that are both formally and functionally equivalent to marriage may be considered spouses under s. 1 of the Act. Parties who have undergone a marriage ceremony or event in good faith but did not have the capacity to enter into the marriage (e.g., by reason of prohibited degrees of consanguinity) may still be considered spouses for the purposes of the FLA. Similarly, parties to a voidable marriage may also be considered spouses, as will spouses to a polygamous marriage if the marriage was celebrated in a jurisdiction that recognizes such unions as legally valid. The appellant's interpretation of the legislation would result in an anomalous situation where parties to marriages that are not legal in Canada, such as polygamous marriages, can be considered spouses but parties to same-sex marriages, which are legal in Canada, cannot be considered spouses. This type of illogical result must be avoided.

30The appellant submits that the motion judge's decision has the effect of forcing the parties into a non-consensual marriage and is, therefore, contrary to Nova Scotia (Attorney General) v. Walsh. I agree with the analysis of the motion judge on this issue. The appellant's argument fails to recognize that there is a fundamental difference between couples who choose not to marry and instead cohabit and the parties in this case, who chose not to cohabit and instead entered into a status that was the equivalent to marriage for same-sex couples. There is, in these circumstances, no element of coercion or impairment of personal autonomy.

31The appellant makes the in terrorem argument that by declaring a U.K. civil partnership to be the equivalent to marriage for the purpose of the DA and the FLA, the motion judge has called into question the constitutionality of all Canadian civil partnerships. In his submission, if civil partnerships are marriages, then civil partnerships are ultra vires the jurisdiction of the provinces. This argument is fundamentally flawed because it fails to recognize that civil partnerships in Canada are available to both same-sex and opposite-sex couples. They are, therefore, not the equivalent of U.K. civil partnerships that are restricted only to same-sex couples. The appellant's floodgates argument also fails to recognize that the motion judge was very careful to restrict the scope of her order.

32In a lengthy section of his factum, the appellant argues that declaring that a civil partnership under the CPA is not a marriage would be in accord with s. 15 of the Charter. No declaration of invalidity was granted by the motion judge pursuant to s. 52 of the Constitution Act, 1982. Therefore, a consideration of [page730] Charter values arises in this case only in the context of resolving a statutory ambiguity. Where an ambiguity arises, it is a well-established principle of statutory interpretation that a court should prefer an interpretation that is consistent with Charter values and reject an interpretation that is inconsistent with Charter values: Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at paras. 62-64. It is clear that the motion judge, in conducting her statutory interpretation analysis, sought to interpret the relevant legislation in a manner that was consistent with Charter values. There was no error in this regard.

(ii) Intention of the parties to change their status

33The appellant submits 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. In furtherance of this submission, the appellant relies on his affidavit evidence to the effect that he viewed the civil partnership as a first step of a long-term plan to finalize the couple's relationship status. The appellant also submits that the parties' decision not to marry in Ontario is consistent with his position that the parties viewed their civil union as a transitory status that was not equivalent to marriage.

34This 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.

(iii) New U.K. marriage legislation

35The appellant criticizes the motion judge for failing to consider the U.K.'s recent passage of the Marriage (Same Sex Couples) Act 2013 (U.K.), 2013, c. 30 (the "U.K. Marriage Act"). The U.K. Marriage Act legalizes same-sex marriage in England but preserves the existing civil partnership regime. The appellant argues that the U.K. Marriage Act supports his submission that the parties' choice to become civil partners is distinct from [page731] the choice to marry, and that this distinction has been recognized by the U.K. Parliament.

36The motion judge can hardly be faulted for failing to take into account legislation that had not been enacted at the time of the motion, which was heard in October of 2012, or at the time of the release of her reasons, which occurred on January 7, 2013. The U.K. Marriage Act was introduced as a bill on January 24, 2013 and received Royal Assent on July 17, 2013. As of the date of this judgment, not all provisions of the U.K. Marriage Act are fully in force. 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.

(iv) Domestic contract and Part IV of the FLA

37The appellant submitted that the motion judge erred in law by failing to consider the fact that the respondent could enforce his rights under Part IV of the FLA. That part of the legislation deals with domestic contracts. The appellant asserted that a civil union qualifies as a foreign domestic contract and can be enforced under s. 58. Counsel for the appellant opined that this was the appropriate remedy for the respondent to pursue his rights on the dissolution of the parties' civil partnership and that other similarly situated parties should do the same in the future.

38Before considering the merits of this argument, it is worth noting that this submission was not found in the appellant's factum. No case law was provided to assist the court in considering this part of the FLA. Counsel for the two intervenors were placed in the unfortunate position of having to respond impromptu to this submission. Although the manner in which this argument was made is very concerning, in the end it makes no practical difference because the argument is meritless.

39A domestic contract is distinct from a U.K. civil partnership. The terms of a civil partnership are not subject to bargaining between the parties but imposed upon them by the state. In contrast, domestic contracts imply some form of private ordering and bargaining between the parties, outside of the statutory regime: Mary Jane Mossman, Families and the Law: Cases and Commentary (Concord, Ont.: Captus Press, 2012), at p. 363. Domestic contracts "allow spouses to substitute a consensual regime for the statutory regime that would otherwise be imposed on them": Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550, [2004] S.C.J. No. 20, 2004 SCC 22, per Bastarache J., at para. 1. [page732]

40Both the FLA and the CPA recognize this distinction and permit parties to make private contracts thereunder. Treating a U.K. civil partnership as a domestic contract would fail to give effect to this distinction under both the Ontario and U.K. laws, especially since the parties had the opportunity to contract privately in the U.K. but chose not to do so.

41It is evident from the plain meaning of the wording of Part IV that these provisions of the FLA are intended to deal with agreements entered into by individuals. They are fundamentally different from civil partnerships under the U.K. legislation. Those partnerships are intended to have the effect of changing the legal status of the parties. They engage the power of the state to sanction such relationships and they require state involvement to bring about their termination. These are not mere contracts between parties.

42Even if the language of Part IV of the FLA could be construed in the manner suggested by the appellant, thus giving rise to an ambiguity, I would decline to adopt the appellant's interpretation. 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.

Conclusion

43I would dismiss the appeal. The parties have agreed that no costs should be awarded on the appeal. Accordingly, there will be no costs.