Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20210924 DOCKET: C68482
Brown, Roberts and Zarnett JJ.A.
BETWEEN
Sophie Lalonde Applicant (Respondent)
and
Samer Agha Respondent (Appellant)
Counsel: Robert J.M. Ballance, for the appellant Michelle DiCarlo, for the respondent
Heard: June 29, 2021 by video conference
On appeal from the order of Justice Kirk W. Munroe of the Superior Court of Justice dated June 3, 2020, with reasons reported at 2020 ONSC 3486.
L.B. Roberts J.A.:
Overview
[1] This appeal concerns the scope of s. 31 of Ontario’s Marriage Act, R.S.O. 1990, c. M.3, which operates to validate a formally invalid marriage solemnized in good faith. Specifically, this appeal will determine whether s. 31 extends to marriage ceremonies performed outside of Ontario and to purely religious ceremonies where the parties took no steps to obtain a licence or register the marriage.
[2] The trial of the issue of the validity of the parties’ marriage arose in the context of the respondent wife’s application in which she sought custody [1] of their children, child and spousal support, and equalization of net family property. In his answer, the appellant husband claimed there was no legally valid marriage and, as a result, the respondent’s claim for equalization of net family property must be dismissed.
[3] The appellant appeals from the trial judge’s final order that the parties’ August 7, 1998 marriage in Memphis, Tennessee is deemed to be a valid marriage pursuant to s. 31 of the Marriage Act and, therefore, that the parties are “spouses” under the Family Law Act, R.S.O. 1990, c. F.3 (“the FLA”), s. 1(1), for the purpose, among others, of equalization of net family property. Under s. 1(1) of the FLA, only legally married spouses, or those who have “together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right” are entitled to equalization of property on marriage break down.
[4] For the reasons that follow, I would dismiss the appeal.
Factual background
[5] On August 7, 1998 the parties participated in a religious marriage ceremony at a mosque in Memphis, Tennessee. The appellant, a practising Muslim, had attended this mosque for the few months that he resided and worked in Tennessee. He had arranged for the ceremony to take place during the weekend that the respondent was visiting him from Canada. While the appellant subsequently disputed the legal validity of the ceremony for the purposes of property equalization, his evidence was that he believed the ceremony was necessary to permit the parties to engage in sexual relations, as pre-marital sexual relations were considered sinful under Islamic religious law. The respondent had converted to Islam about a year before the ceremony.
[6] The mosque’s Imam performed the marriage ceremony and signed the marriage certificate. Following the marriage ceremony, the parties received a marriage certificate with the seal of the mosque’s Imam. The certificate states that they “[h]ave been married according to the Quran and Sunnah and are hereby given the rights and privileges of husband and wife according to the Islamic Shariah”.
[7] No marriage licence was issued by any government entity. Other than having the marriage solemnized by the mosque’s Imam and witnessed by other members of the mosque, the parties did not try to ascertain or comply with the formal statutory conditions of a legal marriage in Tennessee, including the requirements to obtain a marriage licence and register the marriage.
[8] The parties both gave evidence that they did not know that they were not complying with Tennessee statutory requirements. They did not know they had to obtain a marriage licence or register their marriage. Rather, they considered themselves to be legally married. Until their separation in 2016, they lived openly as husband and wife for many years in Windsor, Ontario, where they had three children and purchased the matrimonial home. They recognized themselves as married to each other on government and other official documents. On his cross‑examination at trial, the appellant testified that even following the parties’ separation, he thought of himself as married to the respondent. However, in response to the respondent’s application for equalization of net family properties, the appellant took the position that there was no marriage.
Trial of an issue
[9] The appellant never disputed that the parties were common law spouses, entitling the respondent to spousal and child support. The point of contention at the trial was whether the August 7, 1998 religious ceremony created a valid marriage under Tennessee or Ontario law for the purpose of the respondent’s entitlement to make property claims under the FLA. The respondent’s equalization claim pursuant to s. 5 of the FLA relied on her meeting the definition of a “spouse” under s. 1(1) of the FLA.
[10] Both parties called legal expert evidence concerning the conditions of a valid marriage in Tennessee and the validity of their marriage ceremony at the mosque. Both experts agreed that in Tennessee, marriage is governed by statute, common law marriage is not recognized, and the statute, Tennessee Code Annotated, requires the issuance of a marriage licence prior to any religious ceremony. They also agreed that in certain exceptional circumstances, the absence of a marriage licence does not invalidate a marriage on public policy grounds and that the equitable doctrine of marriage by estoppel could be applied to validate a formally invalid marriage.
[11] The experts disagreed on whether the doctrine of marriage by estoppel should be applied in the circumstances of this case. While the respondent’s expert, Martha Child, opined that the doctrine of marriage by estoppel should be invoked here, the appellant’s expert, Jason Ridenour, thought that it should not, because even though they were unaware of the requirement, the parties knew they had not obtained a Tennessee marriage licence.
[12] The trial judge found that the religious ceremony did not create a valid marriage under Tennessee law because the parties did not obtain a marriage licence. However, he determined that it was unnecessary to resolve the question as to whether the Tennessee doctrine of marriage by estoppel should be applied to validate the parties’ formally invalid marriage. He concluded that Ontario law applied because the parties spent their entire married life in Ontario and the respondent was seeking the division of assets that is governed by the law of the parties’ domicile. The trial judge determined that it is the law of the province of Ontario that controls the legal significance of the post-ceremony events. While not a valid marriage under Tennessee law, the parties lived as a married couple in Ontario. According to the trial judge, whether subsequent events created a valid marriage should therefore be determined by Ontario law.
[13] The trial judge considered and applied the following definition of “spouse” under ss. 1(1)(a) and (b) of the FLA:
“spouse” means either of two persons who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
[14] He concluded that s. 1(1)(b) did not apply because the marriage was not voidable or void, given that there was no question that the parties had the legal capacity to enter into a marriage. In determining whether the parties were “married to each other” and therefore “spouses” under s. 1(1)(a), he looked at the criteria under s. 31 of the Marriage Act, which provides as follows:
If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.
[15] The trial judge concluded that the criteria for a deemed valid marriage under s. 31 of the Marriage Act had been met for the following reasons:
- The parties’ marriage was solemnized in good faith because there was no evidence of bad faith and both parties wanted to marry and did so in a religious ceremony.
- The parties must have intended to follow the Marriage Act because the respondent wanted to be legally married and therefore intended to comply with the law. There was no intentional or deliberate non-compliance or indifference as to compliance.
- There was no evidence that either party was under a legal disqualification to contract marriage.
- The parties lived together and cohabited as a married couple after the religious ceremony at the mosque.
[16] As a result, the trial judge determined that the Tennessee religious ceremony was deemed to be a valid marriage pursuant to s. 31 of the Marriage Act and the parties were therefore spouses within the meaning of s. 1(1)(a) of the FLA. As such, they were able to access the property division, equalization, and security provisions of Parts I and II of that Act.
Issues
[17] I would summarize the appellant’s principal submissions as follows:
- The trial judge erred in applying s. 31 of the Marriage Act to validate a ceremony that took place in, and was formally invalid under the laws of, Tennessee. The law of the jurisdiction where the marriage was performed (lex loci celebrationis) is the sole consideration in determining formal marriage validity. Section 31 of the Act applies only to marriages that were solemnized in Ontario and cannot be imported into the law of Tennessee. Under Tennessee law, the parties’ marriage was invalid and cannot be validated by the application of the Tennessee equitable doctrine of marriage by estoppel because the parties knew they had not obtained a marriage licence. If the marriage is invalid in the place where it was solemnized, it cannot be a valid marriage anywhere else.
- Alternatively, if s. 31 is applicable to marriages solemnized outside of Ontario, the trial judge misinterpreted its provisions by considering the respondent’s subjective good faith and intention as to the legality of the marriage and compliance with the Act. Section 31 was designed to deal with inadvertence, absences, irregularities, or insufficiencies in the process and was not intended to apply to a ceremony that totally ignored all formalities of the Marriage Act and the process itself. Alspector v. Alspector (1957), 9 D.L.R. (2d) (Ont. C.A.), was rendered prior to the enactment of the FLA and has been overtaken by this court’s approach in Debora v. Debora (1999), 167 D.L.R. (4th) 759 (Ont. C.A.).
Analysis
Standard of Review
[18] The issues argued by the appellant involve the interpretation of s. 31 of the Marriage Act. As such they raise questions of law reviewable on a standard of correctness. As I shall explain, in my view, the trial judge made no error of law.
(i) Can s. 31 of the Marriage Act apply to validate a marriage solemnized outside of Ontario?
[19] I see no error in the trial judge’s conclusion that s. 31 of the Marriage Act applies to validate the parties’ formally invalid marriage notwithstanding that it was solemnized in Tennessee.
[20] In my view, the appellant’s position that s. 31 can only apply to marriages solemnized in Ontario represents an overly narrow and technical interpretation of s. 31. It undermines and is inconsistent with the public policies underlying family law legislation in Ontario that support the presumption of the validity of marriages entered into anywhere in good faith where the parties have lived as, and held themselves out to be, a married couple.
[21] The modern approach to statutory interpretation requires that, unless ambiguous, the provisions of a statute are to be interpreted in accordance with their plain meaning and legislative purpose: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21. The appellant does not submit that s. 31 is ambiguous. Rather, he urges an interpretation that, in my view, does not respect the plain meaning of s. 31’s provisions or its legislative purpose.
[22] For ease of reference, I reproduce the provisions of s. 31:
If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.
[23] The appellant argues that persons married in Tennessee or elsewhere cannot intend to be married under the laws of Ontario but, rather, can only intend to be married under the laws of the place where the marriage is solemnized or performed.
[24] However, if s. 31 of the Act applied only to marriages performed in Ontario, the legislature could have easily included that requirement. Instead, such limitation is absent from s. 31. It is one among several provisions in the Marriage Act that apply to persons, like the parties here, who were married outside of Ontario but are domiciled in Ontario when the Act is invoked. For example, s. 1(2) provides that: “This Act does not apply in respect of any ceremony or form of marriage gone through by two persons who are married to each other by a marriage previously solemnized in accordance with this Act or recognized as valid in Ontario” (emphasis added). And s. 8(3) specifically refers to the dissolution or annulment of a previous marriage “elsewhere than in Canada” with respect to the prohibition of the issuance of a licence in certain circumstances.
[25] This interpretation is also consistent with well-established conflict of law principles. As the appellant correctly points out, the formal validity of a marriage is determined by the law of the jurisdiction where the marriage is celebrated, the “lex loci celebrationis”: Berthiaume v. Dastous, [1930] 1 D.L.R. 849 (P.C.), at pp. 851, 853; Brook v. Brook (1861), 11 E.R. 703 (H.L.); Janet Walker, Castel & Walker: Canadian Conflict of Laws, loose-leaf (ReI. 82-9/2020), 6th ed. (Markham, Ont.: LexisNexis Butterworths, 2005) vol. 2, at para. 16-2. As noted by the author in Canadian Conflict of Laws, at para. 16-2:
The lex loci celebrationis governs the formalities surrounding the marriage ceremony, including such questions as whether a religious ceremony is necessary or sufficient; whether a marriage may be constituted per verba de praesenti, that is, by an informal exchange of consent; whether a marriage may be celebrated by proxy; or simply by the couple or one of them or someone authorized by them reporting the marriage to the appropriate governmental body. [Footnotes omitted.]
[26] However, whether a marriage is formally invalid under the lex loci celebrationis is a different question from whether it can be deemed legally valid.
[27] Section 31 contemplates marriages that are otherwise not legally valid until the provision “deems” them to be so. It is the law of the jurisdiction where the parties reside that applies to the question of whether the marriage will be legally validated notwithstanding its formal irregularities. Julien D. Payne and Marilyn A. Payne explain in Canadian Family Law, 8th ed. (Toronto: Irwin Law, 2020), at p. 16: “Although based on a contract between the parties, marriage is a status to which the state attaches its own conditions as to its creation, duration, and consequences” (footnote omitted). As this court reiterated in Alspector, at pp. 685-86, a competent court has jurisdiction to define matrimonial status and, in particular, to declare a marriage valid.
[28] In the same way, the appellant’s reliance on s. 4 of the Marriage Act is in my view misplaced. Section 4 stipulates that “[n]o marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns”. However, these provisions do not limit the use of the word “solemnized” in s. 31 to marriages performed in Ontario. Rather, s. 4 refers to the question of formal validity. While they must be read together, sections 4 and 31 serve different purposes.
[29] The legal validation of marriages also reflects the long-standing societal importance of marriage that, in the face of a dispute between the parties, favours deeming the marriage valid. As the Supreme Court stated in Porteous v. Dorn et al., [1975] 2 S.C.R. 37, at pp. 40-41:
If persons live together as man and wife for such length of time and in such circumstances as to have acquired local repute as married a presumption that they are legally married may arise, which can only be displaced by cogent evidence to the contrary.
[30] See also Powell v. Cockburn, [1977] 2 S.C.R. 218.
[31] Section 31 is a validation clause that protects a marriage contracted in good faith from invalidity on the ground of formal irregularities: H.R. Hahlo, Nullity of Marriage in Canada: With A Sideways Glance At Concubinage And Its Legal Consequences, (Toronto: Butterworth & Co. (Canada), 1979), at p. 19. As the authors of Canadian Family Law, at p. 19, state: “Non-compliance with statutorily presented formalities, though subject to penalties, does not render the marriage void unless the statute expressly or by necessary implication invalidates the marriage” (footnote omitted): see also Peppiatt v. Peppiatt (1916), 30 D.L.R. 1 (Ont. C.A.), at pp. 10-12; Kerr v. Kerr and Ontario (Attorney General), [1934] S.C.R. 72; Clause v. Clause (1956), 5 D.L.R. (2d) 286, at pp. 292-93.
[32] Strict compliance with the statutory requirements for a formally valid marriage licence is therefore not required to invoke the deeming validity provisions of s. 31. If that were so, there would be no need for s. 31. As this court held in Alspector, “the Legislature did not assume, believe or expect that every couple who should intermarry in the Province would be familiar with this Act. It would be the rare case, indeed, in which either of them would know of the existence of the Marriage Act” (emphasis in original): at p. 687.
[33] I also note that section 31 has existed more or less in the same form since at least 1896 and the history of validating formerly invalid marriages extends back to legislation enacted in the province of Upper Canada: The Marriage Act, 1896, S.O. 1896, c. 39, s. 29; William Renwick Riddell, “The Law of Marriage in Upper Canada” (1921) 2 Can Historical Rev 226. The historical need for the legal validation in Ontario of marriages formally solemnized outside of Ontario likely stems from the practical reality that not all of the hundreds of thousands of individuals who have settled in this province have been in a position to prove the formal validity of their marriages. This practical difficulty, along with the strong presumption in favour of the “regularity and validity” of marriage, was observed by Robinson C.J. for the Upper Canada Court of Queen’s Bench in Breakey v. Breakey (1846), 2 U.C.Q.B. 349, at p. 354:
Now I take the principle of law to be, that on all questions of pedigree arising in a contest about property, the presumption is strong in favour of the regularity and validity of the marriage, especially when the parties have lived together as man and wife for twenty or thirty years, and have been so reputed till the connection has been dissolved by death, and when they have left issue. The presumption is indeed so strong, that those who would impeach the validity of the marriage are required to make the alleged illegality clearly appear. It would be cruel, as regards the feelings and interests of parties, if the law were not in this respect rigid, and the hardship in this country would be grievous, where so many thousands of people have emigrated from distant countries, and are of that station in life that they cannot be supposed always to have preserved or to be able to procure such evidence as could satisfy any doubts and cavils in regard to the regularity of their marriages….
[34] As the court concluded in Smith v. Waghorn, 2012 ONSC 496, upon finding the requisite intention to comply for the purposes of applying s. 31 of the Marriage Act to validate a marriage celebrated in Florida, absent evidence to the contrary,“[i]t would be unusual that a person following the laws of one state intended to be married within that jurisdiction but not married in another jurisdiction”: at para. 42.
[35] As a result, I would not give effect to this argument.
[36] In my view, s. 31 of the Marriage Act can apply to validate a marriage solemnized outside of Ontario.
(ii) If s. 31 applies to marriages solemnized outside of Ontario, can a court consider the subjective intention of the parties to comply with the Act?
[37] The appellant submits that even if s. 31 of the Marriage Act can apply to marriages solemnized outside of Ontario, it was an error to consider the parties’ subjective good faith and intention. For the appellant, the words, “intended to be in compliance with this Act”, mean that the parties objectively intended to be in compliance with the Marriage Act of Ontario and that the objective nature of the parties’ intention requires them to take objectively reasonable steps to formally comply with the Act. The consideration of either party’s subjective intentions is irrelevant and would lead to confusion and uncertainty. The trial judge therefore erred in taking into account the respondent’s subjective intentions to marry the appellant. Moreover, the appellant argues, the applicable deeming provision of s. 31 in this case relieves against only technical irregularities and insufficiencies with respect to the issue of the marriage licence [2]; the failure to obtain a marriage licence is not a technical irregularity or insufficiency.
[38] Here too, in my view, the appellant’s approach is overly strict, does not represent a plain reading of s. 31, and undermines its purpose.
[39] I reiterate the well-established public policy discussed above that favours marriage as a social institution, which, in my view, is reflected in s. 31 of the Marriage Act.
[40] I also disagree with the appellant’s position that the parties’ subjective intentions to comply with the law of Ontario are irrelevant. Neither the English nor the French language version of s. 31 precludes the assessment of the parties’ subjective intentions to comply nor have they been excluded from judicial consideration. As this court confirmed in Alspector, even the subjective intentions of one party are relevant. However, whether the evidence of an intention to comply is credible or reliable is another question. The issue of whether the parties or one party intended to conform with the law is a question of mixed fact and law that involves issues of credibility and reliability for a judge to determine.
[41] Moreover, the curative provisions of s. 31 are not limited, as the appellant suggests, to situations involving mere “irregularity or insufficiency” in the issue of a marriage licence. The appellant’s proposed interpretation omits the express curative provision in s. 31 for the “absence” of the issue of a marriage licence [3], which is what occurred here.
[42] That said, I agree with the appellant’s position that “intended to be in compliance with this Act” requires something more than the condition that the parties have solemnized their marriage “in good faith”. Otherwise, there would be no need to include the requirement of “intended to be in compliance” in addition to the requirement that the marriage be “solemnized in good faith”. As the author of Nullity of Marriage states at p. 20:
While failure to comply with prescribed statutory formalities does not, as a rule, invalidate a marriage – at least where the parties acted in good faith – there must always be it is submitted, something which, at least in appearance, amounts to a proper marriage ceremony. An informal consent marriage, even if it was contracted by the parties in good faith and was followed by their cohabitation as man and wife, can never qualify as a marriage. It is a “non-marriage”. [Footnote omitted.]
[43] See also: Dutch v. Dutch (1977), 1 R.F.L. (2d) 177 (Ont. Co. Ct.), at pp. 187-89.
[44] In my view, a marriage is “intended to be in compliance with this Act” where there is an intention to create a formally binding legal marriage, that is, one that would be recognized for civil, as opposed to only religious, purposes. That intention will not be present where the parties know of the relevant formal legal requirements and deliberately choose not to follow them, notwithstanding that their marriage is recognized as a valid religious ceremony or was solemnized in good faith. But that intention may be found where the parties believe they are marrying for all purposes, any non-compliance was non-deliberate, and where the parties’ subsequent behaviour confirms that they considered themselves, from the time of the marriage ceremony, to have become legally married.
[45] As the following review of the relevant case law in Ontario demonstrates, this is the approach that has been followed uniformly for more than fifty years by the courts that have considered the “intention to comply” provisions of s. 31 and its predecessors. I disagree with the appellant’s submission that there is any conflict in the approach taken by courts or that this approach has led to divergent or unpredictable results.
[46] I begin with a review of Alspector and Debora. In my view, Alspector has not been overturned by Debora; these cases can be read consistently with each other. The key factual distinction between them is that in Debora, unlike in Alspector, there was a finding of deliberate non-compliance with Ontario law.
[47] Alspector involved circumstances where the parties were married in Ontario by a cantor in a Jewish religious ceremony without a marriage licence. The husband made inquiries as to whether a marriage licence was required and believed it was not because the parties intended to live in Israel. The wife relied on the husband’s advice that a marriage licence was not required. This court accepted the wife’s subjective intention to comply with the law of Ontario to enter into a formally valid marriage and held that her subjective intention was sufficient to satisfy “the intention to comply” provision of the predecessor to s. 31 of the Marriage Act.
[48] In comparison, Debora involved materially different factual circumstances and therefore is distinguishable from Alspector and the present case. The parties participated in a religious ceremony in 1987 and later went through a civil ceremony in 1994. The court interpreted “marriage” in the definition of spouse under s. 1(1) of the FLA as meaning a marriage under the Marriage Act. This court held that while the 1994 ceremony was valid, the 1987 religious ceremony did not create a formally valid marriage because the parties had deliberately not complied with the law of Ontario. Although aware of the requirement, they intentionally did not register their marriage following the 1987 ceremony so that the husband could continue to receive a widower’s pension. This court focused its analysis on the meaning of “good faith on the part of the person asserting a right” under s. 1(1)(b) of the FLA and determined, citing Harris v. Godkewitsch (1983), 41 O.R. (2d) 779 (Ont. Prov. Ct.), at p. 781, that “spouse” under s. 1 should not be extended to cover a person who participated in a ceremony in Ontario that was “clearly and deliberately” outside the Marriage Act, notwithstanding the marriage was solemnized in “good faith”: Debora, at pp. 762-63.
[49] I turn next to consider what the appellant has described as two conflicting lines of cases. In my view, there is no conflict. Rather, the divergent results in these cases stem from their divergent facts. A review of the caselaw reveals a consistent approach: marriages are deemed valid provided there is some evidence of intent to comply with marriage law and absent deliberate non-compliance.
[50] I start with the cases where the courts declined to validate marriages under s. 31 of the Marriage Act.
[51] In Harris, the application judge found that the applicant chose not to be married for the purposes of Ontario law “but, instead, to be committed personally and spiritually through the Jewish ceremony” because of “a desire not to be in a position to make any property claims against the respondent”: at p. 780. The marriage was not deemed valid.
[52] Kanafani v. Abdalla, 2010 ONSC 3651, 89 R.F.L. (6th) 189, is similarly distinguishable from Alspector and the present case on its facts. In 2004, the parties were married in Toronto under Sharia law by an Islamic religious leader. They never obtained a marriage licence or registered the marriage. They subsequently attended before a judge in the United Arab Emirates (“UAE”). The focus of the motion for summary judgement was on the subsequent UAE ceremony, which the wife asserted resulted in a valid civil marriage. The motion judge found there was no intention to comply with Ontario law and concluded that “on the undisputed facts” the religious marriage was not valid under the Marriage Act. She held that the certificate issued by the judge in the UAE did not suggest a new valid marriage ceremony had occurred. Her conclusion was supported by the wife’s contradictory assertions about whether the UAE ceremony created a new marriage or merely registered the Toronto marriage.
[53] Chhokar v. Bains, 2012 ONSC 6602, involved a finding of deliberate non‑compliance. The parties had participated in a Sikh religious marriage ceremony in Ontario. The trial judge accepted the respondent husband’s evidence that the applicant wife, prior to the religious marriage ceremony, did not want to obtain a marriage licence. He concluded that she knew of the need for a marriage licence and did not intend to comply with the laws of Ontario. As a result, he declined to validate the marriage under s. 31 of the Marriage Act.
[54] In Aden v. Mohamud, 2019 ONSC 6493, the court declined to deem the marriage valid pursuant to s. 31 of the Marriage Act because the parties did not intend to comply with the law of Ontario. The parties participated in a religious marriage ceremony in 2007 without registering the marriage. The husband later married another woman in 2014, which was registered in Ontario. The court held that this arrangement was inconsistent with a legal marriage in Ontario such that the marriage was not valid pursuant to s. 31 of the Marriage Act. The court, at para. 22, rejected the wife’s stated belief that she assumed her marriage was legal on the basis that had she truly believed that she was married according to the law of Ontario, her marriage would have ended in 2014 when her husband informed her of his intent to have more than one wife.
[55] Moza and Thusu (Re), 2021 ONSC 1552, 54 R.F.L. (8th) 132, is the most recent reported decision to consider s. 31 of the Marriage Act. The application judge refused to validate the parties’ marriage celebrated in a religious ceremony in India because she was not satisfied that there was evidence of the formal requirements under Indian law nor of an intention to comply with Ontario law.
[56] By contrast, the cases where courts have validated marriages under s. 31 of the Marriage Act all involve findings that at least one of the parties intended to comply with the law of Ontario.
[57] The court in Friedman v. Smookler, [1964] 1 O.R. 577 (Ont. S.C.), deemed a marriage to be valid because the parties intended to comply with the Act. Following the ceremony, the parties had lived together as man and wife. Although they did not obtain a licence and the celebrant was not an authorized marriage officer, the court held that it is enough that the persons to the marriage act under a belief that a religious ceremony will be recognized as a legal marriage.
[58] Like the present case, in Ayoub v. Osman, , the court considered whether the parties’ formal religious marriage ceremony officiated by an Imam in Ontario produced a formally valid marriage where no marriage licence had been obtained and the marriage was not registered. The court validated the marriage under s. 31 of the Marriage Act because the parties considered themselves formally married to one another, lived together as husband and wife for almost 12 years, and had two children.
[59] The parties’ subjective intention to marry one another was also an important factor in the court’s decision to validate the marriage in Smith. In Florida, the parties had participated in a marriage ceremony before a duly authorized officer and obtained a marriage licence. However, they had misrepresented the husband’s name to the Florida court and marital officials. The application judge applied s. 31 to validate the marriage. He concluded that although the applicant knew that the respondent had misrepresented his name for employment purposes, she did not understand that this misrepresentation would invalidate their marriage. He found on the evidence that the parties intended to enter into a legally binding marriage “and thereafter to be so considered in accordance with the laws of all jurisdictions, including the Province of Ontario”: at para. 42. This finding was fact-specific. After the marriage ceremony, the parties cohabited, lived together, and repeatedly represented to the public and their families that they were married to one another.
[60] In Isse v. Said, 2012 ONSC 1829, 19 R.F.L. (7th) 413, the parties participated in an Islamic wedding ceremony in Ontario according to Sharia law. No marriage licence was issued and the marriage was not registered under the law of Ontario. The court determined that the marriage was valid under s. 31 of the Marriage Act because the ceremony was solemnized in good faith and the parties intended to comply with the Marriage Act. Importantly, the court accepted that the wife assumed that the religious ceremony legalized the marriage and did not know that any further steps were required.
[61] Jama v. Basdeo, 2020 ONSC 2922, is also factually similar to the present case. The parties participated in a traditional Islamic wedding ceremony and intended to be legally married. While there were witnesses to the ceremony, the parties did not obtain a marriage licence and there was no evidence that the officiant was authorized to solemnize marriages. The trial judge concluded that both parties intended to comply with the law to enter into a valid marriage. In particular, she accepted the wife’s evidence that she was not aware that a marriage licence was required in order to make the marriage legal and that had she known, she would have obtained a licence. As a result, the trial judge validated the marriage under s. 31 of the Marriage Act.
Application of the law to the facts of this case
[62] Each of the decisions that I have just reviewed turned on the particular factual circumstances of each case. In each, it was crucial whether there was evidence of an intention to comply or, conversely, of deliberate non-compliance with the formal requirements of the law in Ontario [4].
[63] Here, the parties believed that the marriage ceremony created a binding marriage in conformity with the laws of Tennessee and Ontario, and their subsequent conduct shows they acted on that belief. That belief, as the trial judge found, correctly in my view, indicated an intention to enter into a valid, legally recognized marriage. His finding was grounded firmly in the evidence. Unlike in some of the cases reviewed above, there was no evidence in the present case that either party intended not to be legally married or was deliberately not complying with the law of Ontario. Other than the failure to obtain a marriage licence, the parties complied with all the other statutory requirements for a valid marriage under Tennessee or Ontario law. They were married by an Imam. There were witnesses present at the ceremony. They had the capacity to enter into the marriage and consented to do so. Most important, neither of them knew that a marriage licence was required to create a formally valid marriage. In other words, they believed that they had entered into a legally binding marriage that would be legally binding anywhere, including under the laws of Ontario, where they intended to reside following the ceremony.
[64] There is also no question that the parties complied with all of the other provisions of s. 31 of the Marriage Act: they entered into their marriage in good faith; they were married in a religious ceremony in a mosque by an Imam which was consistent with their religious faith at the time of the marriage; they had the capacity to enter into marriage and consented to do so; and they lived as a married couple following the religious ceremony: the respondent wore a ring and the parties indicated they were married as their status on various legal documents, including income tax returns, hospital records, birth records, and mortgage documents.
[65] As a result, I see no error in the trial judge’s conclusion that the provisions of s. 31 of the Marriage Act were met and that the marriage was deemed valid. The onus is on the appellant to rebut the presumption of a valid marriage: Powell, at p. 225. In my view, he has failed to do so.
[66] In sum, the parties intended to comply with whatever law governs the solemnization of marriages in Tennessee that would be recognized in Ontario. Denying the parties’ marriage would work an injustice on the respondent who relied on the appellant and unjustly relieve the appellant of his legal obligations in respect of the marriage that he voluntarily arranged, entered into, and derived the benefit of for 18 years. As this court stated in Alspector, “the law will not permit him in a subsequent action to plead his own fraud upon the bride in order to have the ceremony declared a nullity”: at pp. 687-88. This would run counter to the long‑standing presumption of the validity of marriage and frustrate the socially important goal of avoiding the very circumstances that s. 31 of the Marriage Act was intended to address.
Disposition
[67] For these reasons, I would dismiss the appeal.
[68] If the parties cannot agree on the disposition of costs, I would permit them to submit brief written argument of no more than two pages, plus a bill of costs, within ten days of the release of these reasons.
Released: September 24, 2021 “D.B.” “L.B. Roberts J.A.” “I agree. David Brown J.A.” “I agree. B. Zarnett J.A.”
[1] Now called decision-making responsibility and parenting time.
[2] The curative provisions of s. 31 also may relieve against the circumstance where the person who solemnized the marriage was not authorized to solemnize marriages; however, this was not an issue raised on appeal.
[3] The French language version of s. 31 also stipulates clearly that its curative provisions apply in the absence of a licence, and not merely in the circumstance of an irregularly issued licence, as follows: « Le mariage est valable, même si le célébrant n’était pas autorisé à le célébrer et même s’il n’y a pas eu de publication de bans ni de délivrance de licence , ou s’il s’est glissé quelque irrégularité dans cette publication ou cette délivrance , quand les parties à la célébration du mariage étaient de bonne foi, désiraient se conformer à la présente loi, n’étaient sous le coup d’aucun empêchement légal de contracter mariage et vivent ensemble et cohabitent comme couple marié depuis le mariage. » [Emphasis added].
[4] The appellant also relied on three judgments of courts outside of Ontario. None of them is binding on this court. Furthermore, they are of little assistance in interpreting Ontario statutes and are factually distinct. For example, in Bussey v. Dwyer, 2017 NLCA 68, the case turned on the parties’ deliberate choice not to enter into a legal marriage but exchange rings in a “peculiar ceremony” at their home without an officiant, a witnesses or a licence, and where they read out a bible verse to each other used at weddings.
