ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-114-10
DATE: 2012-03-21

BETWEEN:

Abdirashid Mohamed Isse Applicant – and – Linda A. Said Respondent

Self-Represented
Michael D. Lannan, for the Respondent

HEARD: March 2, 2012

The Honourable Mr. Justice D. A. Broad

[ 1 ] The Applicant (Mr. Isse) commenced an Application on October 28, 2010 seeking various relief, including equalization of net family property and/or reimbursement of alleged overpayment of spousal support, a declaration that his support obligations to the Respondent (Ms. Said) have been fully satisfied and that a vehicle be returned by Ms. Said to him. The Application stated that the parties were married in December 2002 with the note that “marriage was in Ontario but under Sharia law, not Ontario” and that they separated on October 9, 2010.

[ 2 ] On February 28, 2011, Justice MacPherson granted leave, on a Case Conference, to the parties to amend their pleadings to deal with the issue of whether the parties are “spouses” for the purpose of the equalization of property. On a Settlement Conference on August 8, 2011, Justice Flynn ordered that the Applicant must bring a Motion to determine whether the Sharia “marriage” is valid for the purposes of divorce and property considerations. In accordance with that direction, the Applicant has now moved for a declaration that that the Islamic Sharia marriage ceremony which the parties participated in was not a valid marriage, recognized in Ontario for the purpose of divorce and equalization of property, and a declaration that the relationship between the parties from December 2002 to the date of separation was “common law in Ontario.”

Background

[ 3 ] In his Affidavit, dated August 31, 2011, in support of the Motion, Mr. Isse deposes that he and Ms. Said participated in an Islamic Sharia marriage in Kitchener, held in Ms. Said’s bachelor apartment. The ceremony was administered by Sheikh Addulkadir and as a witness there was Sheik Addulkadir’s nephew. In his Affidavit Mr. Isse deposes that “the purpose of the ceremony was to be legally in the front of Allah (God).” The Affidavit goes on to depose that when Mr. Isse’s original Application was filed it included a claim to equalization of net family property “under the mistaken assumption that the Islamic Sharia ceremony we participated in Ontario was a valid marriage.”

[ 4 ] Mr. Isse recites the circumstances of the Case Conference and Settlement Conference when the issue of the validity of the marriage was brought to light and concludes that “after research it appears to be established law that the Islamic Sharia law ceremony we participated [in] was not a valid marriage in Ontario, and [an] equalization claim is not applicable.” The Affidavit appended a copy of the 2010 case of Kanafani v Abdalla, referred to below.

[ 5 ] In a brief supplementary affidavit dated September 23, 2011, Mr. Isse attaches a “Declaration” of Sheikh Addulkadir which states that in December 2002 “I performed Nikah (Islamic Sharia marriage ceremony) to legalize the relationship as husband and wife Mr. Isse and Ms. Said.” The declaration stated that Sheikh Addulkadir did not make a record of the exact date of the ceremony “because the ceremony was religious” and that he “administered the ceremony according to the Holy Quran and the Sunna (teachings) of prophet Mohamed peace upon him.”

[ 6 ] In her responding Affidavit Ms. Said deposes that the ceremony referred to in Mr. Isse’s Affidavit as having taken place in December, 2002, was in reference to the parties’ engagement and was not an actual wedding ceremony. She stated that the actual wedding ceremony was performed by Abdulkadir Mohamed who advised her that he had authority to perform civil marriage ceremonies in Ontario. She deposes that the marriage ceremony was performed at a rental facility on February 8, 2003 with 30 to 40 people in attendance. Following the ceremony the parties attended at the Mosque for a reception which consisted of about 200 guests. A Mosque marriage certificate (with translation) dated February 8, 2003, was attached to Ms. Said’s Affidavit.

[ 7 ] Ms. Said deposes in her Affidavit that at the ceremony she wore a Somalian wedding gown and Mr. Isse was also wearing “special attire”, and that following the ceremony she and Mr. Isse resided together as a married couple.

[ 8 ] At paragraphs 13. and 14. of her Affidavit, Ms. Said deposed as follows:

13. At no time during the organization of our wedding, did it enter my mind that it was necessary to have a license and that the marriage would have to be registered in the Province of Ontario.

14. As far as I was concerned, we went through all of the traditional steps for a valid marriage and we lived together as husband and wife from February, 2003 until October, 2009.

[ 9 ] Ms. Said further deposes that during the period of the marriage she and Mr. Isse held joint accounts, went on trips together and acted as a couple for both social and religious purposes. Moreover, she deposes that for income tax purposes the two of them were considered as married, appending copies of Mr. Isse’s tax returns for 2007 and 2008 showing his status as “married.” It is noteworthy that Mr. Isse did not file any responding Affidavit disputing Ms. Said’s evidence.

Discussion

[ 10 ] Rule 16(4) of the Family Law Rules provides that a party may move for summary judgment for a final order without a trial on all or part of any claim or any defence in the case. I agree with Justice Spies in Kanafani v Abdalla 2010 ONSC 3651, [2010] O.J. 2749, at para. 21 that since the Family Law Rules for summary judgment have not been amended like the Rules for summary judgement in civil matters, the law that developed with respect to the “genuine issue” test applies to this motion. As Justice Spies expressed in Kanafani, I can therefore assume that the parties have “put their best foot forward” in their Affidavit material, and therefore, if the matter were to go to trial, Mr. Isse would present no additional evidence and, in particular, no evidence contrary to Ms. Said’s affidavit evidence.

[ 11 ] Although there is a factual dispute as to where and when the actual marriage ceremony took place, the parties are agreed that they did go through an Islamic wedding ceremony according to Sharia law, without a marriage license having been issued, and that the marriage was not registered under the law of Ontario.

[ 12 ] Pursuant to the Family Law Act (FLA) the persons must be spouses to claim an equalization of net family property. “Spouse” is defined at section 1(1) of the FLA as follows:

“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. (“conjoint”) R.S.O. 1990, c. F.3, s. 1 (1) ; 1997, c. 20, s. 1; 1999, c. 6, s. 25 (1); 2005, c. 5, s. 27 (1, 2); 2006, c. 19 , Sched. C, s. 1 (1, 2, 4).

[ 13 ] In the case of Debora v Debora (1999) 1999 1840 (ON CA), 167 D.L.R. (4th) 759 (Ont. C.A.) the Court of Appeal held that “marriage” under the FLA means marriage under the Marriage Act R.S.O 1990, c. M.3 (see Debora para. 12).

[ 14 ] Section 4 of the Marriage Act provides that “no marriage can be solemnized except under the authority of a license issued in accordance with this Act or the publication of bans.”

[ 15 ] However, there is a saving provision set forth at section 31 of the Marriage Act to deal with circumstances of non-compliance or imperfect compliance with section 4 of the Act. It provides as follows:

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. R.S.O. 1990, c. M.3, s. 31 ; 2005, c. 5, s. 39 (5).

[ 16 ] There are four necessary elements for the deeming provision in paragraph 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.

[ 17 ] In Debora, there was evidence that the parties deliberately did not comply with the licensing and registration requirements of the Marriage Act in order to permit the husband to continue to receive a widower’s pension from a previous marriage. On this basis it can be said that the second requirement for the deeming provision of section 31 had not been satisfied in that case.

[ 18 ] Justice Spies in Kanafani relied upon Debora in holding that a marriage performed under Sharia law, without a license or registration, was not a marriage for the purposes of the FLA. It is noted however that in Kanafani there was a specific finding, at para. 27, that there was no evidence that the parties intended to comply with Ontario law and in particular the requirements of the Marriage Act.

[ 19 ] The question in the present case is whether there is a genuine issue for trial on the question of whether the four elements of the deeming provision of section 31 of the Marriage Act have been satisfied. If they have been, then the marriage is deemed to be in compliance with the Marriage Act, and hence the parties were “married” for the purpose of s. 1(1)(a) of the FLA. There is no question on the record that neither party was under a legal disqualification to contract marriage, nor that they cohabited as a married couple following solemnization. There is similarly no evidence of bad faith on the part of either party. The sole question therefore is whether the marriage was intended to be in compliance with the Marriage Act.

[ 20 ] Although the Court of Appeal in Debora considered the question of what constitutes “good faith” for the purposes of s. 1(1)(b) of the FLA, it did not consider what is necessary to establish intention to be in compliance with the Marriage Act. Similarly Justice Spies was not called upon to consider that question in Kanafani.

[ 21 ] The question was, however, considered by the Court of Appeal in the case of Alspector v Alspector 1957 93 (ON CA), [1957] O.R. 454, which was not referred to in either Debora or Kanafani. In Alspectror, the parties had gone through a form of marriage according to the Jewish faith, and, although the ceremony complied fully with the requirements of that faith, no license had been obtained. It is noted that Alspector was decided pursuant to an earlier and slightly different saving provision, being section 33 of The Marriage Act, R.S.O. 1937, c. 207, which read as follows:

33. Every marriage solemnized in good faith and intended to be in compliance with this Act between persons not under a legal disqualification to contract such marriage shall be deemed a valid marriage so far as respects the civil rights in Ontario of the parties or their issue and in respect of all matters within the jurisdiction of this Legislature, notwithstanding that the clergyman, minister or other person who solemnized the marriage was not duly authorized to solemnize the marriage, and notwithstanding any irregularity or insufficiency in the proclamation of intention to intermarry or in the issue of the license or certificate or notwithstanding the entire absence of both; provided that the parties, after such solemnization, lived together and cohabited as man and wife.

[ 22 ] It can be seen that despite the somewhat archaic language, the same four elements for application of the deeming provision existed under section 33 of the Marriage Act considered by the Court in Alspector, as are present in section 31 of the current Marriage Act, and in particular, a requirement that the marriage was “intended to be in compliance with this Act.”

[ 23 ] Speaking for the Court in Alspectror, Roach J.A. observed at para. 46:

it should be held that the legislature did not assume, believe or expect that every couple who should intermarry in the Province should be familiar with this Act [i.e. the Marriage Act]. It would be rare case, indeed, in which either of them would know of the existence of the Marriage Act. All that they would be expected to know is that there would be some law in effect in the Province respecting the solemnization of marriages. The phrase should therefore be interpreted as meaning – intended to be in compliance with that law.

[ 24 ] Roach J.A. then considered the question of “intended by whom?” – i.e., must it be intended by both of the parties or is it sufficient that one of the parties had the required intention. On this point he stated as follows, at para. 47:

I cannot conceive a case in which if both of the parties acted in good faith one of them could be held not to have intended the marriage ceremony to be in compliance with the law of the Province...moreover, if knowing of such non-compliance, he intended the ceremony to be a nullity, 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.

[ 25 ] Here, the effect of Ms. Said’s undisputed evidence is that there was an intention that the marriage be in compliance with “the law in effect in the Province respecting the solemnization of marriages,” as stated in Alspector.

[ 26 ] I therefore find that the marriage between Mr. Isse and Ms. Said is deemed to be a valid marriage pursuant to section 31 of the Marriage Act and that therefore the parties are “spouses” for the purposes of the equalization of net family property pursuant to the FLA.

[ 27 ] Subrule 16(6) of the Family Law Rules provides that that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly (emphasis added). On this basis I have the authority to make a determination of the validity of the marriage in favour of the responding party to the motion.

Disposition

[ 28 ] For the reasons set forth above, I therefore dismiss the Applicant’s motion and declare that the Applicant and Respondent are spouses for the purposes of the FLA.

[ 29 ] The parties may make brief written submissions with respect to costs, not to exceed three double-spaced typewritten pages, within fourteen days of the release of this decision.

D. A. Broad J.

Released: March 21, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Abdirashid Mohamed Isse Applicant – and – Linda A. Said Respondent REASONS FOR JUDGMENT D. A. Broad J.

Released: March 21, 2012