COURT FILE NO.: FS-22-28112 DATE: 20230118 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rochelle Jamil, Applicant AND: Atif Akhtar, Respondent

BEFORE: Justice Sharon Shore

COUNSEL: M. Bhardwaj for the Applicant B. Akinnusi for the Respondent

HEARD: January 6, 2023

Endorsement

Background

[1] This is the story of two teenagers (the parties) who began dating when they were 16 years old. Time passed and their relationship continued to develop. When the parties graduated from their undergraduate degrees they discussed moving in together while the Respondent carried on in school.

[2] Both parties came from religious Muslim families. Their families were clear that they would not tolerate a sexual relationship outside of marriage. Family meetings were held. The parties were told they either had to break up or go through a religious marriage ceremony. The parties wanted to stay together, so they agreed to participate in a religious marriage ceremony. The parties entered into a nikkah on August 4, 2013. A nikkah, in Islam, is a religious marriage contract between the bride and groom. As is custom with their religious practice, a three-day celebration ensued. After the religious marriage they lived together for seven years.

[3] The Applicant graduated with a Bachelor of commerce with a double major in human resources and marketing management. She works as a human resource and benefits specialist at DHL Express. The Respondent graduated from law school and works as a lawyer. They separated in August 2021.

[4] The Applicant scheduled this long motion for a declaration that the religious marriage be deemed a valid marriage under s. 31 of the Marriage Act, R.S.O. 1990, c. M.3. The declaration is important to the Applicant because otherwise she cannot proceed with her claims for an equalization of net family property, under the Family Law Act, R.S.O. 1990, c. F.3.

[5] The Respondent submits that the Applicant knew all along they were not legally married but went through a religious marriage ceremony so their families would accept them living together.

[6] The question this court must answer in this case is whether the parties’ religious marriage ceremony should be deemed a valid marriage, and specifically, whether the parties intended to get married under the law of Ontario. On reviewing the evidence in this case, it is clear that the parties did not intend to be in compliance with Marriage Act, and they were both aware at the time of the marriage that they were not “legally married”.

The Law

[7] Under s. 1 of the Family Law Act, only married spouses are entitled to equalization of net family property on marriage breakdown. So how do we define “married”?

[8] Section 4 of the Marriage Act provides:

No marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.

[9] But it does not end there. Section 31 of the Marriage Act provides:

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. , s. 31 ; 2005, c. 5, s. 39 (5) . (emphasis added)

[10] The set of facts in this case are not novel. There have been several cases that have considered whether or not a religious ceremony should be deemed a valid marriage. I will briefly review the cases relied on by the parties.

[11] In Alspector v. Alspector, [1957] O.R. 14-27 (S.C.) aff’d Alspector v. Alspector, [1957] O.R. 454 (C.A.), the parties were married in 1949 in a Jewish religious ceremony by a cantor duly authorized to perform marriages under the laws of Ontario. Following the marriage ceremony, the parties lived together until Mr. Alspector died in 1956. For reasons that are not important, the validity of their marriage was brought into question. The court focussed on the meaning of the words “intended to be in compliance with this Act”. Before their marriage, the cantor told Mr. Alspector that he should obtain a licence from city hall. Mr. Alspector replied that the parties intended to live in Israel where the religious ceremony was sufficient, and a licence would not be necessary to be legally married. The judge in that case found that Ms. Alspector believed that they were being married not only under Jewish Law but also under civil law:

My conclusion on the facts is that the plaintiff proceeded with the marriage ceremony in good faith and intended that it should be in compliance with the laws of Ontario and there is no doubt she had performed all her duties as a dutiful wife for seven years following the marriage. I also think the proper conclusion is that Mr. Alspector acted in good faith, believing that a licence was not necessary to the validity of the marriage in the circumstances.

[12] Similar circumstances were discussed in Debora v. Debora (1999), 167 D.L.R. (4th) 759 (Ont. C.A.). In Debora, in 1987, the parties participated in a religious ceremony only, and years later, in 1994, they participated in a civil ceremony. The date of marriage was important because Mr. Debora’s net worth increased significantly between the two dates and would affect his date of marriage deductions.

[13] The parties did not marry under civil law so that Mr. Debora could continue to collect a widow’s pension. In this case, the court explained that there are four elements for the deeming provision in section 31 to apply, namely:

1. The marriage must have been solemnized in good faith;
2. The marriage must have been intended to be in compliance with the Marriage Act
3. Neither party was under a legal disqualification to contract marriage; and
4. The parties must have lived together and cohabited as a married couple after solemnization.

[14] In Debora, there was evidence that the parties deliberately did not comply with the licensing and registration requirements of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) and it could not be stated that they entered into the marriage in good faith. It was therefore concluded that the parties’ marriage was valid on the later date, the date they proceeded to marry under civil law.

[15] In Isse v. Said, 2012 ONSC 1829, 19 R.F.L. (7th) 413, the court specifically considered what is necessary to establish intention to be in compliance with the Marriage Act. The parties are not expected to be familiar with the Act, but that there would be some law in effect regarding the solemnization of marriage. In other words, it should be read as intended to be in compliance with “the law”: see para. 23. The marriage in Isse was deemed valid because the wife’s undisputed evidence was that there was an intention that the marriage be in compliance with the law in Ontario.

[16] The cases provided to the court end with the Court of Appeal decision in Lalonde v. Agha, 2021 ONCA 651, 159 O.R. (3d) 367. In this case, the sole issue to be determined by the court was whether the parties were married. In 1998, Mr. Agha was working in Tennessee. Ms. Lalonde, who was living in Montreal, flew down to Tennessee for the weekend to be with Mr. Agha. That day, he surprised her, and they participated in a religious marriage ceremony. At the end of the ceremony they were presented with a marriage certificate. Neither party inquired as to the formal statutory requirements for a legal marriage in Tennessee. Ms. Lalonde believed it was a valid and legal marriage. Both parties gave evidence that they did not know that they were not complying with Tennessee statutory requirements.

[17] Following the marriage ceremony, they began living together in Detroit. They lived together, bought a home, had children and filed taxes together. They separated in 2016. Mr. Agha’s initial evidence was that the ceremony was a religious “arrangement” to allow him to continue premarital sex with Ms. Lalonde without sin. He said he did not even arrange for a religious ceremony. However, his evidence did not stand up to scrutiny under cross-examination, where he admitted he considered himself married. The court concluded that after the ceremony, both parties believed they were legally married. There was no intentional or deliberate non-compliance.

[18] In Lalonde, the court concludes that both parties wanted to marry and there was good faith solemnization. The decision focusses on whether there was intention to comply with the marriage requirements. “Intention” is defined as being subjective in nature. Was there intentional or deliberate non-compliance? Ms. Lalonde wanted to be married and thought she was. The court therefore concludes that there was intention to comply with the marriage law.

[19] Mr. Agha appealed the decision. The Court of Appeal affirmed the lower court’s decision and dismissed the appeal. The court clarified that the subjective intentions of the parties or one of the parties are relevant. The issue of whether the parties or one of the parties 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. The court states at para. 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 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.

[20] The Court of Appeal states unambiguously that “marriages are deemed valid provided there is some evidence of intent to comply with marriage law and absent deliberate non-compliance”: see para. 49. See the Court of Appeal decision in Lalonde for a comprehensive review of the case law in this area.

[21] In determining the issue before this court, it is crucial whether there is evidence of intention to comply or, conversely of deliberate non-compliance with the formal requirements of the law in Ontario: at para. 62.

[22] As I set out above, the case before this court will be determined on whether the parties solemnized the marriage in good faith and intended that the marriage be in compliance with the law of Ontario. So now let’s turn to the facts of this case.

Analysis

[23] The Applicant submits that the religious ceremony was done with the intent that it was a marriage for all intents and purposes. She submits she simply followed the instructions of the Respondent as far as the requirement for the marriage ceremony.

[24] I do not accept the Applicant’s statement that she entered into the religious marriage, believing it was sufficient for a valid civil marriage. The parties knew they were not “legally married”. When reviewing the evidence in this case, I can reach no other conclusion than the parties did not intend to comply with the civil law and were aware, at the time of the religious marriage ceremony, that they were not in compliance with the law in Ontario. I will explain.

[25] The parties discussed moving in together. The Applicant’s family told them that they either needed to separate or to get married under Islamic law (by participating in the Nikkah). The parties agreed to enter into a Nikkah to appease their families. The family threw a three-day celebration that was attended mostly by family, and some family friends. There is no doubt that the parties enjoyed themselves during the celebrations.

[26] However, the uncontradicted evidence is that parties knew they had to register a licence for a valid marriage, and they chose not to register a marriage licence, although they may differ on the motive for not registering a licence. Given this evidence, the Applicant cannot pass the second part of the test, that she intended for the marriage to be in compliance with the law of Ontario.

[27] There is other evidence that supports the fact that the parties knew they were not entering into a valid marriage, some of which is summarized below:

1. The Applicant acknowledged that they did not register the marriage because the Respondent would be disqualified from certain OSAP loans. When questioned on this issue, the Applicant said that she knew there was no civil ceremony, but she may not have understood the ramifications.
2. The Respondent did not invite his friends to the marriage ceremony. His evidence is that he did not consider the event to be a real wedding.
3. The parties did not identify themselves as being legally married on government documents, including their income tax returns. Throughout the relationship, the parties indicated that they were “single”.
4. Following the ceremony, the parties started to live together. They continued to hold themselves out as “married” to their family and community. However, in other social settings with their friends and at school, they held themselves out as boyfriend and girlfriend living together, consistent with the Respondent’s narrative.
5. The parties did not display any pictures from the religious marriage ceremony in their home or on social media. This is consistent with the narrative that they participated in a religious ceremony so they could live together with their family’s blessing, but that they did not consider themselves “legally married”.
6. Following separation, the Applicant made a complaint to the Canadian Council of Muslim Theologians that the Respondent would not give her a religious divorce. In the complaint she states that the Respondent “convinced me that we should not have the marriage registered legally and we would get it registered legally after he completed law school…We do have a nikkah contract signed by myself, Atif and witnesses, however, the mulana did not sign it as we were not getting the marriage registered at the time.” As an aside, the Council concluded that the Nikkah was not valid under Islamic law.
7. The Applicant indicates on her mortgage application that she is single.
8. In 2019, the parties purchased a home. In an email to the real estate lawyer, dated July 1, 2019, the Applicant states that they “are not legally married at this time”. This allowed the Applicant to qualify for a first-time homebuyer’s rebate.
9. The Applicant completed the Census for Statistics Canada in May 2021 as follows: “Step D Q5 - What is this person’s marital status? Never legally married”. “Step D Q 6 - Is this person living with a common law partner? Yes”. “Step D Q7 - What is the relationship of this person to person 1? Common-law partner of person 1”.

[28] I find that the parties chose to participate in the religious ceremony to appease the Applicant’s parents, and they deliberately chose not to file a marriage licence. They knew at the time of the religious ceremony that they were not complying with terms required for a valid marriage in Ontario. They did not intend to comply with the law. They do not pass the second part of the test which is “the marriage must have been intended to be in compliance with the law of Ontario”.

Order to go as follows

1. The Applicant’s motion is dismissed.
2. As the successful party, there is a presumption that the Respondent is entitled to costs. If the parties cannot agree on costs, the Respondent shall serve and file cost submissions, no more than three pages, plus his bill of costs and any offers to settle. On receiving the cost submissions, the Applicant shall serve and file her responding cost submissions within fourteen days, no more than three pages, plus her bill of costs and any offers to settle. The Respondent may file a brief reply, no more than one page, within five business days of receiving the Applicant’s materials.

Justice Sharon Shore Date: January 18, 2023