ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-72537
DATE: 2012-12-03
B E T W E E N:
Rupinder Kaur Chhokar
Kavita Bhagat, for the Applicant
Applicant
- and -
Sandeep Singh Bains
Respondent
HEARD: September 18, 19, 20, 21 and 24, 2012
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
INTRODUCTION
[ 1 ] This family law trial was held on three issues. The first issue requires a determination of whether or not the parties’ marriage was completed in accordance with the laws of Ontario. The applicant submits the marriage is valid whereas the respondent submits the parties knowingly did not obtain a marriage licence and the marriage is, therefore, not in accordance with the laws of Ontario.
[ 2 ] The second issue is to determine whether the applicant is entitled to an equalization of the parties’ net family property, assuming a valid marriage.
[ 3 ] The third issue to be determined is the entitlement and quantum related to spousal support, regardless of the status of the marriage.
[ 4 ] The issues of child custody, access and child support have already been resolved.
[ 5 ] The parties allegedly married each other on June 7, 2008 and separated from each other on June 19, 2011.
[ 6 ] There is one child of the relationship, Ajit Singh Bains, born December22, 2010. The child primarily resides with the applicant.
VALIDITY OF THE MARRIAGE
[ 7 ] The parties went through a Sikh religious marriage ceremony on June 7, 2008. The parties neither applied for nor obtained a marriage licence and the marriage has never been registered as required by the Marriage Act R.S.O. 1990, c. M. 3.
[ 8 ] The respondent alleges, while acknowledging the religious ceremony, that the parties, after the ceremony, lived separately for a period of time. Thereafter, they lived in a common law relationship because the applicant did not what to acquire a marriage licence. It is alleged that the applicant wanted to be free to marry her cousin in India so she could sponsor his immigration to Canada.
[ 9 ] The applicant denies this allegation and submits that she was unaware of the marriage licence requirement and believes she was legally married to the respondent.
[ 10 ] Section 4 of the Marriage Act R.S.O.1990, c. M.3, states as follows:
No marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.
[ 11 ] Section 31 states 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 an irregularity or insufficiency in the publication of banns or the issue of the licence.
[ 12 ] The Family Law Act R.S.O. 1990 c. F. 3, paragraph 1, defines spouse as meaning:
…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.
[ 13 ] Accordingly, for the applicant to assert her right to an equalization she must prove on a balance of probabilities that she was married or that she entered into a marriage in good faith and is, therefore, a spouse as defined.
[ 14 ] Good faith must be taken in the sense of the “intention to comply with Ontario law”, that is, with the requirements of the Marriage Act . ( Reaney v. Reaney , [1990] O.J. No. 1337 ).
[ 15 ] Debora v. Debora 1999 1840 (ON CA) , [1999] O.J. No. 2 is a decision of the Ontario Court of Appeal. In that case, the parties completed a Jewish religious marriage ceremony. The husband advised the wife that he wished to continue to receive his C.P.P. widower’s pension and, accordingly, the marriage was not registered as required under Ontario law. The wife agreed, understanding that there would be no change in the nature of the marriage.
[ 16 ] The court was required to consider whether the parties were spouses. The court was of the opinion that, for the marriage to have been entered into in good faith as required by definition of spouse in section 1 of the Family Law Act , the parties had to show an intention to comply with the Marriage Act .
[ 17 ] In the Debora case, since the wife knew that the marriage was not conducted in accordance with the laws of Ontario by not getting a marriage license, the court determined they were not married spouses.
[ 18 ] Alspector v. Alspector 1957 93 (ON CA) , [1957] O.R. 454 is another decision of the Ontario Court of Appeal. The issue was the validity of a marriage for which no licence had been issued. The court had to determine the applicability of the then section 33 of the Marriage Act which is comparable to the current section 31 . The court interpreted the phrase, “intended to be in compliance with this Act” to mean, “intended to be in compliance with the law”.
[ 19 ] Further, the case stands for the principle that only one of the spouses requires such intention, being the spouse who is trying to assert his or her rights which would arise from the status of married spouses.
[ 20 ] Ayoub v. Osman [2006] O.J. No. 1176 is a decision of Aston J. of the Family Court of the Ontario Superior Court of Justice. In this case, the parties were married in a Muslim religious ceremony in Ontario but did not obtain a marriage licence. They lived together for 12 years and had two children. The learned judge was satisfied of the parties’ intention at the time of the ceremony and, further to section 31 of the Marriages Act, found the parties to be spouses for the purposes of the Divorce Act .
[ 21 ] Smith v. Waghorn [2012] O.J. No. 906 is a decision of Justice Kane of the Ontario Superior Court. The court ruled that the parties, in obtaining a marriage licence in Florida and going through a marriage ceremony in Florida, had the intention to be married. Further, at paragraph 44, the learned judge stated:
Even if the Respondent did not intend to marry the Applicant in the Florida ceremony, the Applicant’s singular belief that the 1995 ceremony constituted their union in marriage is sufficient.
The court relied on the Alspector decision.
[ 22 ] Isee v. Said [2012] O.J. No. 1341 is a decision of Justice Broad of the Ontario Superior Court of Justice. In this case, the parties married each other in Ontario in an Islamic Sharia ceremony. No licence was obtained. Following the ceremony, the parties lived together as a married couple. It was the evidence of Ms. Said that at no time did it enter her mind that it was necessary to get a licence and she was of the opinion that she was married.
[ 23 ] The learned judge, at paragraph 16, stated there are four necessary elements for the deeming provision in paragraph 31 of the Marriage Act to apply:
The marriage must have been solemnized in good faith;
The marriage must have been intended to be in compliance with the Marriage Act ;
Neither party was under a legal disqualification to contract marriage; and
The parties must have lived together and cohabited as a married couple after solemnization.
[ 24 ] The court noted that the only real issue to determine is whether one of the parties intended compliance. The court determined that Ms. Said had such an intention and found the parties to be spouses for the purposes of equalization of net family properties.
[ 25 ] There is one other legal authority that requires mentioning, Kanafani v. Abdalla 2010 CarswellOnt 4579 , a decision of Justice Spies of the Ontario Superior Court of Justice. This is a case in which the marriage was ruled invalid with the learned judge finding that there was no evidence the parties intended to comply with Ontario law.
[ 26 ] In reviewing the issue before me as to the validity of the marriage, the key question to answer is, did the applicant, at the time of the marriage, intend to comply with the laws of Ontario? She is seeking an equalization of net family properties and it is her intention that is relevant.
FACTS
[ 27 ] There can be no doubt that the parties went through a full Sikh marriage ceremony at a Sikh temple in Ontario.
[ 28 ] The marriage was arranged through the use of a middleman. The parties first met through this middle man in September 2007. Both families ultimately consented to the marriage and the parties became engaged to each other in March 2008.
[ 29 ] From the evidence I heard, it is clear that the parties and their families took all the traditional steps and adhered to all the customs and requirements of the Sikh religion and married each other in accordance with the Sikh religion. Exhibit 1 is a series of photographs of the various stages of the marriage process and traditions. The ceremony took place at the Sikh Spiritual Centre Toronto and Exhibit 2 is general information with respect to the Centre. Sikh weddings are included in the description of services provided.
[ 30 ] Exhibits 3 and 4 are copies of formal invitations to the wedding and to the reception that followed.
[ 31 ] Exhibit 6 is a letter from the Centre confirming the wedding of the parties on June 7, 2008.
[ 32 ] The evidence suggests that 500 people attended the ceremony and 1000 attended the reception.
[ 33 ] Clearly, the wedding was an expensive venture for both parties and was meticulously planned. Exhibit 9 is copies of receipts from Raghu Jewellers Inc., dated February 2 and May 31, 2008, which corroborate the applicant’s evidence that her parents gifted her over $8,000.00 in jewellery for the wedding.
[ 34 ] The wedding ceremony and it’s compliance with the Sikh faith was admitted by the respondent.
[ 35 ] It is the testimony of the applicant that, on or before June 7, 2008, she was not aware of the legal requirement of a marriage licence.
[ 36 ] It was the evidence of the applicant that, in the few weeks following the ceremony, she was reviewing the parties’ applications for life insurance with the agent. She noted her relationship with the respondent was being recorded as “common law”.
[ 37 ] Exhibit 33 is an application for life insurance on the life of the applicant. The beneficiary on the second page is the respondent whose relationship to the proposed insured is noted as “friend”. The medical examination report attached to the application was received on July 29, 2008. From the last two pages it would appear the application for insurance was taken on July 27, 2008.
[ 38 ] The applicant testified that she trusted her husband and the information he provided to the agent and went ahead and signed the insurance application.
[ 39 ] The applicant testified that, when she learned that there was no compliance with the licence formalities required by the laws of Ontario, she confronted the respondent. He allegedly advised her he did not want to have the marriage registered as it was his family’s wish that he go to India and marry someone else.
[ 40 ] The applicant testified that she believed that, in accordance with the parties’ religious beliefs, they were married to each other. The applicant testified that she immigrated to Canada in 2005 and was unaware of the Ontario laws related to marriage.
[ 41 ] The applicant testified that, when she became aware of the marriage licence issue, she told her family who, in turn, contacted the original middleman for assistance.
[ 42 ] The applicant testified that, had the respondent asked her to be common law spouses, she would have said no.
[ 43 ] The applicant testified that, over time, she also noted their tax returns did not show the parties to be married. Exhibit 19 is the applicant’s tax return for 2008 and under the first page box entitled, “Your marital status on December 31, 2008”, the box checked off was “Single”. The document also sets out the applicant’s address as 46 Cabana Drive. The applicant testified that this address was the home of the respondent’s brother and that she never lived at that address.
[ 44 ] Exhibit 7 is a copy of the applicant’s tax return for 2009 and her status is shown as “Living common law”, as does her return for 2010, being Exhibit 8.
[ 45 ] Exhibit 24 is the applicant’s income tax return for 2011 and her status is shown as “separated”.
[ 46 ] The applicant testified that her tax returns were not prepared by her and when she asked why her status is that of common law she was told because the marriage was not registered.
[ 47 ] Exhibit 5 is a letter from the Ministry of Government Services, dated August 3, 2011. The letter advises that they cannot process an application for a certificate of marriage as the event had not been registered. The letter was evidently a response to steps or inquiries made by the applicant after the parties separated.
[ 48 ] It is the evidence of the applicant that she and the respondent commenced living together immediately after the ceremony, as husband and wife, at 60 Cabana Drive, North York. The respondent’s parents also lived at this address. The parties resided there until the month before the separation when she and the respondent moved to a basement apartment. The respondent had told her that they were in the process of acquiring a new home and had to move out of 60 Cabana Drive so it could be sold.
[ 49 ] During that month, the respondent would take the applicant back to 60 Cabana Drive and have her pack her personal things and remove them from the home.
[ 50 ] The applicant testified that, on June 19, 2010, she took the day off work to enable the parties to go to city hall and complete the necessary marriage licence paperwork. Instead, the respondent dropped the applicant off at her parents’ home telling the applicant that they would take care of the licence issue the next day. The respondent never returned to collect the applicant. At around 5:00 p.m. that same day, the police arrived and took the applicant to the hospital where she was kept for 72 hours for observation. The respondent had called the police and told them that the applicant had threatened to kill herself and the baby.
[ 51 ] The applicant learned shortly thereafter that the respondent had already sold their home at 60 Cabana Drive. The applicant was never asked to consent to the transfer of the home.
[ 52 ] The applicant testified that she had no intention of wanting to sponsor someone from India to Canada. The applicant testified she has never been back to India since she came to Canada in 2005 and that she has never had any interest in going back there to get married.
[ 53 ] On cross examination, the applicant testified that when she lived in India she was not aware of what a common law relationship was. She testified that she would never live with a man without being legally married to him.
[ 54 ] The applicant testified that, in August 2008, she was advised by her uncle that, prior to the wedding, the uncle told the respondent of the need to get a marriage licence. The respondent allegedly advised the uncle that he would do it after the wedding.
[ 55 ] When asked why she continued to live with the respondent after finding out the marriage was not licenced or registered, the applicant testified that “we got married in front of our friends and family and we did the prayers and said in front of everyone, we are husband and wife.”
[ 56 ] The applicant was cross examined on phone conversations she had which were secretly recorded by the respondent near the time of the separation. A transcript of those conversations was filed as Exhibit 26. The applicant admitted she was the ‘female’ on Track 2 but denied the truth of the contents of this recording, saying she was forced to say all of this by the respondent. She testified that she was in the bedroom and he was on the other side of the bedroom door when the conversation occurred, ensuring she said what he wanted her to say.
[ 57 ] The applicant testified that the other recorded calls did not involve her.
[ 58 ] The applicant denied ever wanting to kill herself or her baby or saying that she wanted to.
[ 59 ] The respondent testified that he was shocked when he heard the applicant testify that it was he, the respondent, who wanted to go to India and get married. The respondent testified that it was the applicant who wished to go to India and marry her cousin so she could sponsor him to come to Canada. The respondent testified that the applicant made this statement three weeks before the wedding. Accordingly, it was the evidence of the respondent that it was the applicant who did not want to get a marriage licence.
[ 60 ] The respondent testified that he believed the applicant’s plan amounted to immigration fraud and that he told the applicant he would not be a party to it.
[ 61 ] The respondent did not want to go through with the wedding and told his parents about what he was told by the applicant. The respondent testified that his parents went to the applicant’s house to talk about it but heard nothing back.
[ 62 ] The wedding proceeded as the respondent testified it would have been too hard to call it off. Guests were travelling from all over. He went ahead out of family respect and to avoid a financial loss.
[ 63 ] He testified that he told the applicant that he would not live with her until she gave up this plan to go to India and get married. He testified that, after the wedding, he lived at 60 Cabana Drive and the applicant lived with his brother at 46 Cabana Drive.
[ 64 ] The respondent testified that, at the end of 2008, the beginning of 2009, the applicant gave up her scheme to go to India to marry and the parties commenced living together at 60 Cabana Drive, North York.
[ 65 ] The respondent testified that, after the baby was born, he thought that perhaps he and the applicant should get their own place. He testified that the applicant was fighting with his parents and was making threats to kill herself and the baby. The respondent and his father agreed to sell 60 Cabana Drive and the respondent and applicant moved to a basement apartment.
[ 66 ] The respondent testified that he was under a lot of stress and was worried about the baby so he decided to drop the applicant off at her parents’ home with the baby and, in fact, did so on June 19, 2011. He then went to the police and told them of the threats.
[ 67 ] After her release from the hospital, the applicant had the respondent charged with assault. The charge was ultimately dismissed.
[ 68 ] On a question by the court, the respondent admitted that a subsequent Indian marriage would have been the fraud as the purpose was to permit someone to immigrate to Canada. The respondent testified that at the time he wished to be married to the applicant.
[ 69 ] On cross examination, the respondent discussed his involvement in the wedding planning and preparations. He testified that he knew they needed a licence. He agreed that his parents went to India to buy things for the wedding. He admitted that, for a common law marriage, a ceremony was not necessary.
[ 70 ] The respondent admitted that he and the applicant went on a honeymoon shortly after the ceremony. He admitted he made the applicant the beneficiary of his life insurance in the summer of 2008, at a time, he testified, that he did not know if they would remain a couple.
ANALYSIS OF VALIDITY OF MARRIAGE
[ 71 ] The evidence of both parties was uncorroborated. No family members were called to support either story as to who knew what and when. For example, the applicant testified that her uncle told her that the uncle had told the respondent of the need for a licence but was told by the respondent that he’d get the licence after the wedding. The uncle was not called as a witness.
[ 72 ] Given the fact that the marriage was not licensed or registered and, therefore, does not formally comply with Marriage Act , the burden is that of the applicant to prove, on a balance of probabilities, that she intended the marriage to comply with the laws of Ontario at the time of the wedding ceremony.
[ 73 ] It is my view that she has failed in this burden.
[ 74 ] I found the evidence of both parties to be less than satisfactory. Each testified that it was the other who did not want to obtain the licence. However, I found the evidence of the applicant to be less credible than that of the respondent. While I don’t condone the secretive way the respondent recorded a number of telephone calls as transcribed in Exhibit 26, I cannot accept that the respondent forced the applicant to say to him what is transcribed on Track 2. It certainly does not read as a script and nothing to suggest the conversation was under duress or that the parties were only separated by a bedroom door when they had this telephone conversation.
[ 75 ] Further, the applicant has denied that she was a party to any of the other recorded conversations. The respondent testified that Tracks 3 and 4 were conversations between him and the applicant. Tracks 5 and 9 were between the applicant and her mother and Track 8 with her father. To my reading, Tracks 3 and 4 seem to relate to the issues between the parties and I conclude the applicant was a party to these conversations. The conversation on Track 3 deals with the issues of accommodation, daycare and the commencement of work. Track 4 seems to refer to the gold that was purchased for the applicant by her parents.
[ 76 ] I have concluded that the applicant was a participant in all the conversations recorded and that her testimony in this regard was untruthful.
[ 77 ] Both of the parties testified that the other wanted to be able to marry in India. The evidence of the respondent in that regard is more believable and has more detail. The applicant’s cousin was identified as the proposed husband and the purpose of the plan was to sponsor her cousin’s immigration to Canada. While the applicant testified that it was the respondent who wished to marry someone in India she provided no reason as to who the respondent was to marry and for what purpose, legitimate or otherwise.
[ 78 ] In a case like this, where there are issues with the credibility of both parties, the corroborative documents filed as exhibits take on of significant importance.
[ 79 ] The respondent’s life insurance application prepared within a few weeks of the wedding shows the proposed beneficiary to be the applicant and describes her as a “friend”. This supports the allegations of the respondent. Further, the applicant’s 2008 tax return indicates that the applicant’s address was 46 Cabana where the respondent alleged the applicant lived until she gave up the idea to go to India to remarry. The tax return also reflects her marital status as single.
[ 80 ] Thereafter, the applicant’s tax returns up to and including 2010 state the applicant’s marital status to be that of common law.
[ 81 ] These documents are corroborative of the evidence given by the respondent.
[ 82 ] The applicant argues that such documentation is also corroborative of her evidence that it was never the intention of the respondent to be married in accordance with the laws of Ontario. However, if the purpose of this was to simply protect the respondent’s status as unmarried then why not show the applicant’s marital status on the 2008 tax return as “common law” instead of “single” and with an address different than that of the respondent. The needs of the respondent, as alleged by the applicant, would still have been served if the 2008 marital status of the applicant was shown as common law and living at the same address as the respondent.
[ 83 ] The applicant argued that these documents were not filled out by her and that she relied on her husband and others. She testified she signed where she was instructed to sign and without reading the documents or being able to read the documents. Had she been a credible witness for herself, this explanation may have been persuasive. Had she provided corroborative evidence or witnesses of her own, her explanation may have been persuasive. However, given her material misrepresentation regarding the recorded and transcribed telephone conversations, I find that the information in the applicant’s tax returns corroborate the respondent’s evidence.
[ 84 ] I accept the evidence of the respondent that it was the applicant who, prior to the religious marriage ceremony, did not want to get a marriage licence. The applicant knew of the need for a marriage licence and did not intend to comply with the laws of Ontario. While the elaborate and expensive Sikh wedding shows an intention to be wed, and remain wedded, it falls short of showing an intention to comply with the laws of Ontario.
[ 85 ] Accordingly, the marriage is not a valid marriage and the applicant is not entitled to an equalization of net family properties.
SPOUSAL SUPPORT
[ 107 ] The respondent acknowledges earning $53,129.00 per annum. During the relationship, the applicant re-trained as an aesthetician. She worked previous to her alleged marriage but quit work shortly thereafter. She currently works part time and earns $70.00 per day together with, I presume, gratuities.
[ 108 ] For support purposes, I will attribute an income to the applicant of $20,000.00 as there is no evidence to suggest a reason why the applicant cannot work full time. She lives with her family who assists with child care. Given the length of time of cohabitation, I will award support for a period of 30 months. The Divorcemate calculations suggest range of support, given the respondent’s obligation to pay child support, to be from $0.00 to $301.00 per month, with the midpoint being $112.00 per month.
[ 109 ] I order that, commencing July 1, 2011, the respondent shall pay spousal support to the applicant in the amount of $150.00 per month, to and including December 1, 2013.
[ 110 ] A support deduction order will also issue.
[ 111 ] The applicant’s claim for an equalization of net family properties is dismissed.
[ 112 ] With respect to costs, I will accept the written submissions of the parties within 20 days of the release of this endorsement. The submissions are to be no more than three pages in length.
Thomas A. Bielby
Released: December 3, 2012
COURT FILE NO.: FS-11-72537
DATE: 2012-12-03
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Rupinder Kaur Chhokar Applicant - and – Sandeep Singh Bains Respondent REASONS FOR JUDGMENT Bielby J.
Released: December 3, 2012