ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
COURT FILE NO.: F1379/13
DATE: July 7, 2014
BETWEEN:
Amanda Mary Matthews
Amanda Mary Matthews in person
Applicant
- and -
Joseph Masaku Mutiso
Joseph Masaku Mutiso not appearing
Respondent
HEARD: May 26, 2014
MITROW J.
INTRODUCTION
[1] The sole issue in this application is the applicant’s request for an annulment of the marriage. For reasons that follow, the application is dismissed.
[2] On December 10, 2013, the applicant and the respondent’s then counsel, Mr. Mark Simpson appeared before me at which time an order was made as follows: the respondent was to advise within two weeks as to his position whether the parties cohabited at any time subsequent to marriage; the applicant was to serve and file her affidavit material in support of her claim by January 15, 2014; the respondent if he intended to defend the application was to serve and file his responding pleadings by January 27, 2014 and the application was adjourned to January 28, 2014 to set a summary hearing date.
[3] This appeared to be a matter that could be dealt with by affidavit evidence and it was for that reason that the applicant was ordered to file affidavit material in support of her claim.
[4] The applicant and respondent’s counsel Mr. Simpson next appeared before me on February 21, 2014. The matter had been set for a summary hearing; however the material filed by the applicant was neither complete nor sufficient.
[5] Mr. Simpson advised that his client was not opposing the relief sought. The respondent did not comply with the order dated December 10, 2013 requiring him to serve and file responding pleadings, however, the respondent did file an affidavit sworn January 8, 2014 setting out his position as to the parties’ marital relationship.
[6] The order that was made February 21, 2014, included an order requiring the applicant to file to file a fresh, comprehensive affidavit detailing clearly all facts relied on in support of the claim, but the order provided that this would not prevent the applicant from adducing viva voce evidence at the hearing of the application with leave of the court.
[7] At that time, Mr. Simpson advised that he would not be participating any further in this matter, having advised the court of his client’s position and having filed his client’s affidavit.
[8] This matter eventually came on for hearing before me on May 26, 2014 as an undefended trial. The applicant had filed an affidavit sworn April 24, 2014, setting out the relevant background facts.
[9] At the hearing the applicant advised the court that she was not opposed to the court considering the respondent’s affidavit dated January 8, 2014.
[10] Also the applicant gave viva voce evidence to supplement the evidence contained in her affidavit.
THE FACTS
[11] At the date of the hearing of the application, the applicant was age 34 and the respondent was age 37. The applicant was previously divorced.
[12] The applicant and the respondent met online sometime in 2012. At that time the respondent was living in Dubai, in the United Arab Emirates.
[13] The parties were married to each other in London, Ontario on October 19, 2012.
[14] The parties met face to face for the first time on October 15, 2012. On that occasion, the applicant picked up the respondent at the airport in Toronto and the respondent came to stay with the applicant at her London, Ontario residence.
[15] Based on the applicant’s evidence, it appeared that the parties initial relationship was very positive. The applicant testified that the parties had discussions about having children right away.
[16] It was the applicant’s evidence that she located a person to solemnize their marriage by searching the internet. This search yielded a person named Dale Brewster. This person had a website and was available to perform marriage ceremonies. It was Dale Brewster who married the parties on October 19, 2012. The parties did obtain a marriage licence. Prior to the date of marriage, the parties went to Niagara Falls on October 17, 2012 at which time they met the applicant’s parents who were visiting Niagara Falls.
[17] On the day of marriage, a couple, who were friends of the applicant, attended at the wedding ceremony as witnesses.
[18] The applicant testified that she entered into the marriage voluntarily and that she was happy to get married.
[19] By October 24, 2012, the respondent had returned to the United Arab Emirates.
[20] During the period approximately December 14, 2012 to December 26, 2012, the applicant flew to the United Arab Emirates where she stayed with the respondent at his residence.
[21] The parties next saw each other physically in March 2013. At that time, the applicant picked up the respondent at the airport in Montreal and the parties then drove to London, Ontario where they stayed at the applicant’s residence for the period of approximately March 18 to March 26, 2013.
[22] Each party had a visitor’s visa when he or she was visiting the other party.
[23] The applicant testified that the parties were not together physically for continuous periods of time because of their respective visa restrictions.
[24] The applicant was clear that prior to June of 2013, she did not consider herself to be in a state of marital separation from the respondent.
[25] It was the applicant’s evidence that in early June 2013 that the relationship ended; the applicant thereafter regarded herself as being separated from the respondent.
[26] The applicant testified that the respondent ended their relationship by telling the applicant that he no longer wanted to be married to her.
[27] It was the applicant’s evidence that the date of separation was June 6, 2013. This is consistent with the date of separation disclosed in the application.
[28] It was also the applicant’s testimony that she had tried to get pregnant right away; and that if they had a child it would be easier for the respondent to come to Canada and stay in Canada. The applicant stated that she had never started the process of sponsoring the respondent to come to Canada.
[29] There was no financial interdependence between the parties, according to the applicant, during their brief relationship.
[30] It was soon after the separation, according to the applicant, that she was contacted by phone (apparently by someone from the Ontario government) and was told that Dale Brewster, the person who performed the marriage ceremony, was not authorized to do so under the Marriage Act, R.S.O. 1990, c M.3.
[31] By letter dated July 19, 2013, received from Service Ontario, the applicant received written confirmation that Dale Brewster was not authorized to perform marriages. That letter referred to s. 31 of the Marriage Act, stating that this section “is intended to deal with these types of irregularities”. This letter is appended as an exhibit to the applicant’s affidavit.
THE LAW
[32] Section 31 of the Marriage Act 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 any irregularity or insufficiency in the publication of banns or the issue of the licence.
[33] In Isee v. Said, [2012] ONSC 1829 (S.C.J.), D. A. Broad J. canvassed s. 31 of the Marriage Act on the facts before him. The four necessary elements for s. 31 to apply are summarized as follows by Broad J. at para. 16:
There are four necessary elements for the deeming provision in paragraph 31 to apply, namely:
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.
[34] The present case turns on the fourth element: the issue of whether the parties have lived together and cohabited as a married couple after solemnization. The evidence in the present case establishes compliance with the first three elements: that the marriage was solemnized in good faith, that the marriage was intended to be in compliance with the Marriage Act, and that neither party was under a legal disqualification to contract marriage.
[35] Most of the jurisprudence in relation to s. 31 of the Marriage Act, centres on the one or more of the first three elements.
[36] However, the decision of MacKenzie J., in the Upadyhaha v. Seghal, [2000] O.J. No. 3508 (S.C.J.), involved a consideration of the fourth element, as to whether the parties in that case law lived together and cohabited as a married couple after the date of solemnization.
[37] In Upadyhaha, the parties had met in 1995, and by the summer of 1996 the relationship had developed to the point that the parties discussed a future as a couple; in December of 1996, the wife informed the husband that if there was no marriage between them then the relationship would end; the husband shortly thereafter, stated he wished to continue the relationship and in January 1997, the wife indicated there would no continuation of the relationship unless a marriage was arranged; in February 1997, the parties went through a traditional form of marriage according to the Hindu religion but no marriage licence was obtained; the parties stayed in a hotel overnight after the ceremony and thereafter the husband spent a few days at the defendant’s residence on a number of occasions from mid-February 1997 to the end of June 1997; however the husband never made the wife’s residence as his ordinary or usual residence.
[38] There was another unrelated issue in Upadyhaha, supra that was discussed in the reasons for judgment but which is not relevant to the case at bar.
[39] MacKenzie J. found in all the circumstances that the saving provision in s. 31 of the Marriage Act did not apply. The court was unable to find as a fact that there was a living together and cohabitation as contemplated by s. 31. On the issue of cohabitation within the meaning of s. 31 of the Marriage Act, MacKenzie J. stated as follows at para. 30:
On the evidence and the submissions, I am satisfied that the saving provision in section 31 of the Act does not operate here to create a valid marriage between the plaintiff and the defendant. I am not persuaded that the parties following the February 14th ceremony “lived together and cohabited as man and wife” within the meaning of those words set out in section 31. I acknowledge that there may be in law a “living together” and “cohabitation as man and wife” between the parties where they are prevented from living together in the sense of following the ordinary routines of domestic life under the same roof and household due to reasons beyond their respective controls. There comes to mind examples such as military hostilities and prolonged illness. Whatever the reason or motive of these two parties (apart from the stated reason that the defendant’s premises at the time were too small), I am unable to find as a fact that there was a living together and cohabitation as contemplated by section 31 of the Act. [my emphasis]
DISCUSSION
[40] The operative words in s. 31, in relation to cohabitation is that after solemnization of the marriage, the parties must have “lived together and cohabited as a married couple”. In order to find whether this element is satisfied, it is necessary to examine the conduct of parties in context of any unique facts relevant to each case.
[41] In Upadyhaha, although MacKenzie J. found that the amount of cohabitation was insufficient within the meaning of s. 31 of the Marriage Act, there was no evidence that the parties had residences geographically far apart from each other, as in the present case. Importantly, MacKenzie J. acknowledged that there may be cases where parties could be living together and cohabiting as man and wife in circumstances where they are actually prevented from living together for reasons that include, as examples, military hostilities and prolonged illness.
[42] In the present case there is no doubt, on the applicant’s evidence, that she considered herself married to the respondent and that she did not regard the parties as being maritally separated prior to June 2013.
[43] The parties met on the internet. The applicant resided in London, Ontario and the respondent resided in Dubai. Both parties voluntarily elected to pursue a long-distance relationship. This led to marriage and included three periods of time when the parties were physically together and living as a married couple. They planned to have a child. This would make it easier for the applicant to sponsor the respondent to come to Canada.
[44] In contrast to the facts in Upadyhaha, in the present case, it was not surprising that the parties had not yet reached the stage in their relationship where either party could move into the other party’s residence. There were practical limitations including visitor visa requirements, and the time required for the applicant to sponsor the respondent to come to Canada.
[45] There may be situations where people get married and for reasons other than marital separation, they are living physically separate and apart for periods of time because of their unique circumstances. This possibility was recognized in Upadyhaha, supra. There is no specific length of cohabitation included in s. 31. Each case must be decided on its own facts.
[46] Based on the applicant’s evidence, I find as a fact that the parties did live together and cohabit as a married couple subsequent to their marriage within the meaning of s. 31 of the Marriage Act. The reality of this case is that the applicant found herself in a situation where the respondent changed his mind about their ongoing relationship and this caused the applicant to take the position that as of June 6, 2013 the parties were separated. This separation does not detract from the fact that before that date, the parties had lived together and cohabited as a married couple within the context of their unique circumstances.
[47] It is the applicant’s submission that the amount of cohabitation is insufficient to satisfy the cohabitation requirement in s. 31 of the Marriage Act, and accordingly the applicant submits that the curative provision in s. 31 of the Marriage Act is not applicable. I do not accept that submission.
[48] In his affidavit, the respondent states that despite the distance between the parties that he considered their union as a marriage and he corroborates the applicant’s evidence that he and the applicant had discussed starting a family immediately. The respondent further deposes that the parties were having active discussions about which one would move in order for the parties to be together. It was his evidence that he and the applicant had a fight and that he threatened to leave the applicant.
[49] The respondent’s evidence corroborates the existence of an ongoing marital relationship between the parties despite the fact that they lived some distance apart and were not continuously together.
[50] Even though the applicant had consented to the respondent’s affidavit being considered on the hearing of the application, I find that the conclusion dismissing the application can be supported solely on the evidence of the applicant.
[51] I find as a fact that the curative provisions contained in s. 31 of the Marriage Act apply and that the marriage between the applicant and the respondent is a valid marriage.
ORDER
[52] For reasons set out above, a final order shall issue as follows:
(1) Pursuant to s. 31 of the Marriage Act, the marriage between the applicant and the respondent solemnized in London, Ontario, on October 19, 2012 is declared to be a valid marriage;
(2) The application for a declaration of annulment is dismissed without costs; and
(3) This order is without prejudice to the applicant’s right to seek a divorce pursuant to the Divorce Act¸ R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1].
“Justice Victor Mitrow”
Justice Victor Mitrow
Released: July 7, 2014
COURT FILE NO.: F1379/13
DATE: July 7, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Amanda Mary Matthews
Applicant
- and -
Joseph Masaku Mutiso
Respondent
REASONS FOR JUDGMENT
MITROW J.
Released: July 7, 2014