CITATION: Kang v Ghag, 2016 ONSC 890

COURT FILE NO.: FS-15-82444-00

DATE: 2016 02 03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

PARMJIT KAUR KANG

Glen A. Cook, for the Applicant

• and -

JOGA SINGH GHAG

Aneesa R. Oumarally, for the Respondent

HEARD: January 6, 2016

REASONS FOR JUDGMENT

Fragomeni, J.

1The applicant wife, Parmjit Kaur Kang (Kang) filed an application on January 8, 2015 seeking the following relief:

1. A divorce;

2. Spousal support;

3. Equalization of net family property;

4. Sale of family property; and

5. Costs and pre-judgment interest;

2In his Answer filed February 2, 2015 the Respondent husband, Joga Singh Ghag (Ghag), alleges that he and Kang were not legally married and as such she is not entitled to a divorce. Further as she is not a spouse pursuant to the divorce she is not entitled to spousal support under the Divorce Act.

3Ghag also sets out in his Answer that Kang is not entitled to any relief pursuant to the Family Law Act for the following reasons:

• The parties only lived together for a period of five weeks.

• The wife suffered no economic disadvantage during that time.

• There are no children.

• She did not financially contribute to the home during the 5 weeks of co-habitation.

• The parties did not own or acquire any family property together.

4The husband brings a motion before me for a Summary Judgment dismissing the wife’s application and for an order that she return to him his 2002 Chevy Tracker which is in her possession.

5The wife submits that there are serious issues of credibility that require a trial and the issues, therefore, cannot be disposed of by way of a Summary Judgment motion.

6The wife submits that the central issue in the application filed relates to a determination of whether the marriage was valid. The wife submits that there was an intention to comply with the Marriage Act and she relied on the husband’s representation that a marriage licence could be obtained after the ceremony. As such it was not a deliberate non-compliance on the part of the wife.

7The wife also asserts that the husband misrepresented the status of the requirements to her and did so deliberately so the marriage would not be valid. In those circumstances the husband cannot benefit from his own fraud perpetrated on the wife to convince her it was a valid marriage.

8The wife submits that because of the conflicting evidentiary record, this threshold issue cannot be resolved by way of a Summary Judgment motion. The matter therefore, requires a trial.

Overview and Background

9Husband’s Factual Assertions:

• The parties met about the end of September or early October 2014;

• The parties are both Sikh;

• The wife’s family pushed the parties to get married and reluctantly he agreed;

• A ceremony was set for October 11, 2014;

• The parties attended City Hall to get a Marriage Licence but could not obtain one as he was divorced before;

• He advised the wife’s family of this but they insisted they go ahead with the ceremony and they would be legally married at a later date;

• On October 11, 2014 they had a wedding ceremony in the Sikh temple;

• On October 11, 2014 the wife moved in with her husband;

• The husband had two vehicles. One was a Chevy Tracker and the wife used this vehicle to drive to and from work;

• By the end of October 2014 the wife started acting differently and he realized she did not want to be with him;

• The wife told her mother and her brother that she never really wanted to be married again. She had also been previously divorced;

• On November 20, 2014 the parties separated.

10Wife’s Factual Assertions:

• It was the husband not her who wanted a quick wedding as he wanted his parents to be present at the wedding as they were scheduled to go back to India in November 2014;

• She had her divorce documents ready for attending Brampton City Hall to get their Marriage Licence;

• The husband had failed to have his divorce documents ready to bring with him to City Hall;

• The husband stated, after hearing he needed to obtain an Ontario lawyer’s opinion on his Indian divorce, that we could still go ahead with the wedding and obtain the Marriage Certificate after the wedding;

• The wife states that they went ahead with the wedding at his insistence on October 11, 2014;

• The marriage was solemnized in the presence of her family and the parties with 150 to 200 witnesses present. There are multiple videos of the ceremony and wedding invitations had been sent out as per their tradition;

• The temple priest told them they could not give them the papers to sign until after they obtain the Marriage Licence;

• The marriage was solemnized in good faith on her part and she had an intention to be married;

• Neither party was under a legal disqualification to be married;

• The marriage was intended to be in compliance with the Marriage Act of Ontario. It was her understanding and intention to obtain the Marriage Licence as soon as possible once the husband obtained his foreign divorce opinion;

• In her mind she was married as this was the same religious ceremony that she had in India when she was married the first time. They went through all the traditional steps for a valid marriage.

• She began living with the husband as husband and wife after the marriage was solemnized at the matrimonial home;

• After the marriage she asked her husband what was happening with the divorce opinion he was waiting for in order to obtain the marriage licence and he stated that “we do need one.”

• The parties separated on November 20, 2014.

11I have not reviewed the balance of the conflicting evidentiary record as it relates to the other issues identified in this matter.

Analysis

12Section 4 of the Marriage Act states: no marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.

13Section 28 of the Marriage Act sets out the following:

(1) Every person shall immediately after he or she has solemnized a marriage,

(a) Where the marriage was solemnized in a church, enter in the church register kept for the purpose; or

(b) Where the marriage was solemnized elsewhere than in the church, enter in a register kept by him or her for the purpose,

the particulars prescribed by the regulations, and the entry shall be authenticated by his or her signature and those of the parties and witnesses.

(2) Every person who solemnizes a marriage shall, at the time of the marriage, if required by either of the parties, give a record of solemnization of the marriage specifying the names of the parties, the date of the marriage, the names of the witnesses, and whether the marriage was solemnized under the authority of a licence or publication of banns.

14Section 31 of the Marriage Act operates as a curative provision where there has been a technical breach of the statute’s formal requirement. It states:

If the parties to a marriage solemnized in good faith and intend to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such marriage have lived together and cohabited as man and wife, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage is not authorized to solemnize marriage, and despite the absence of or irregularity or insufficiency in the publication of banns or the issuance of a license.

15Three requirements must be met in order for the parties’ marriage to be deemed valid despite the absence of a marriage certificate. Assuming that their religious ceremony was properly conducted, satisfying the criteria below could cure the technical defect if their marriage was been solemnized in:

(1) Good faith

(2) With the intention to comply with the marriage law of Ontario (the Marriage Act) and

(3) The couple have been cohabiting as husband and wife.

Summary of Caselaw

16In Alspector v. Alspector, 1957 121 (ON SC), [1957] O.R. 14; affirmed 1957 93 (ON CA), [1957] O.R. 454 (C.A.) the relevant facts were as follows:

• Parties had a Jewish wedding that complied with all the religious requirements.

• No marriage license was obtained.

• Neither party understood that a license was necessary to validate their marriage.

• The court held that the marriage was formally validated by virtue of section 33 [equivalent to section 31] of the Marriage Act.

• The evidence demonstrated that the plaintiff did not know that the absence of a license might affect the validity of her marriage, and she intended the marriage to be in compliance with Ontario law.

17In Debora v. Debora, (1999) 1999 1840 (ON CA), 167 D.L.R. (4th) 759 (Ont. C.A.), affirming 1997 24456 (ON SC), 32 R.F.L. (4th) 48 (Ont. Sup Ct.) the facts were as follows:

• Parties were married in a religious ceremony but did not apply for a marriage license until seven years later.

• Upon separation, the wife wanted to have the date of the religious ceremony count as the date of the marriage.

• The wife alleged that the husband led her to believe that following the religious marriage they would be legally married. He asked that they delay registering the marriage so that he could continue receiving the higher amount of his pension. She also said he led her to believe that this would be of no consequence to her. Accordingly, she said she entered into the marriage in good faith and should be allowed to claim spousal status from the date of the religious marriage for matrimonial property purposes.

• The Court of Appeal rejected her argument. Carthy J.A. held that a spouse could not be in acting good faith if he or she was aware that the marriage did not comply with the Marriage Act.

18Bielby J. found that good faith must be taken in the sense of the intention, at the time of the marriage, to comply with Ontario law, that is, with the requirements of the Marriage Act”: Chhokar v. Bains, 2012 ONSC 6602, at paras. 14 and 26. (Ont. S.C.J.).

19In Chhokar v. Bains, the parties had a Sikh marriage ceremony without applying for obtaining a marriage license. The parties lived together after the marriage ceremony took place. The parties went through a full Sikh marriage ceremony at a Sikh temple. Justice Bielby notes the following as evidence of the marriage ceremony:

• a series of photographs of the various stages of the marriage process and traditions,

• general information provided to his honour with respect to the temple,

• formal invitations to the wedding at to the reception that followed,

• a letter from the temple confirming the wedding of the party; and

• evidence suggesting that 500 people attended the ceremony and 1000 people attended the reception.

20The applicant submitted that she was unaware of the marriage licence requirement and believed she was legally married to the respondent. The parties lived together immediately after the ceremony. The parties had one child. Each party testified that the other wanted to be able to marry somebody else in India.

21The Family Law Rules set out the test for the granting of a Summary Judgment. Sections 16(1) and (6.1) set out the following:

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

22I am not satisfied that this threshold issue can be determined on the evidentiary record before me. I am satisfied that considering the conflicting nature of the factual assertions put forward by the parties a trial is required. The threshold issue of the validity of the marriage and consequently whether the parties are spouses can only be determined at a trial.

23The Summary Judgment motion is therefore dismissed.

24The parties shall file written submissions on costs within 20 days.

Fragomeni J.