COURT FILE NO.: FD1291/15 DATE: May 8, 2017
ONTARIO SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
M.S.C. Brenda D. Barr for the applicant Applicant
- and -
C.F.J. No one appearing for the respondent Respondent
HEARD: October 5, 2016; factum and authorities filed November 2, 2016
MITROW J.
[1] In this unusual case, the applicant issued an application on October 16, 2015. His only claim is for “a divorce”; however, in the fact summary contained in the application, the applicant requests that a divorce be granted in relation to both of his marriages to the respondent: the first marriage having taken place in Texas, and the second subsequent marriage having taken place in Ontario. The respondent did not defend the application. The applicant has proceeded pursuant to R. 36 of the Family Law Rules, O. Reg. 114/99 by filing an affidavit for divorce and a further supplementary affidavit.
[2] In his factum, the applicant now seeks a divorce in relation to the Texas marriage, and an annulment of the Ontario marriage. For reasons that follow, this relief is granted.
THE FACTS
[3] The applicant is a Canadian citizen residing in Ontario, and the respondent is a U.S. citizen residing in California. The parties were residing in California at the time of their separation in February 2014, at which time the respondent resumed his residency in Ontario.
[4] The parties were residing in Texas when they were married on April 8, 1995.
[5] There are no children of the marriage.
[6] The applicant is transgender. He was identified as a female at birth, and during the 1980s he transitioned to a male. The applicant changed his gender designation to male in government-issued documents, including his Ontario birth certificate, Canadian passport and Ontario driver’s licence. The respondent is female.
[7] When the parties were married in Texas, there was no requirement made of either party to identify his or her gender at birth. To facilitate obtaining their marriage licence in Texas, the applicant provided his Ontario birth certificate and Canadian passport, both of which identified the applicant as a male.
[8] The applicant deposes to becoming aware in 1997 that the Texas legislature prohibited the issuance of marriage licences to persons of the same sex. [1]
[9] From the applicant’s perspective, two significant events took place in Texas. First, in 1999, in the case of Littleton v. Prange, 9 S.W. 3d 223 (Tex: App. 1999), in the Court of Appeals of Texas, it was held that a male-to-female-transsexual remained legally a male. In that case, a person was identified, at birth, as a male having a physical anatomy of a male. The person, however, identified as a female and had surgical and hormonal treatment to physically resemble a female, and later was married to a male. The appellate court held that the person’s marriage was invalid because the person, having been born a male, remained a male person, in law, and could not lawfully marry another male.
[10] Secondly, in 2003, Texas enacted legislation that declared that a marriage between persons of the same sex or a civil union is contrary to the public policy of the State of Texas and void in that state. [3]
[11] In 1996, the United States federal government enacted the Defence of Marriage Act (“DOMA”). Section 3 [4] of DOMA amended Chapter 1 of title 1, United States Code by adding at the end the following:
§ 7. Definition of ‘marriage’ and ‘spouse’
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
[12] From the applicant’s perspective in relation to the Texas marriage, the parties could be considered a same-sex couple if the applicant’s gender at birth was considered, as set out in Littleton, supra.
[13] As a result of DOMA, the applicant had been prevented from applying for a green card based on his status as the respondent’s spouse. An impediment presented by DOMA included the fact that the applicant’s Texas marriage could be regarded by federal authorities as a same-sex marriage. It was the applicant’s evidence that the green card application process required the applicant to undergo a full physical and medical examination, including the requirement to list all legal names that he had used, which would have included the female name given to the applicant at birth.
[14] Consequently, the applicant, while living and working in the United States, continued to do so based on his work visa.
[15] However, in June 2013, the United States Supreme Court, in United States v. Windsor, 133 S. Ct. 2675 (2013), held unconstitutional section 3 of DOMA. Consequently, the applicant was then able to consider applying for a green card.
[16] However, the parties sought legal advice and were advised that their marriage was considered void or voidable under Texas law and that consequently they did not have the necessary valid marriage to apply for a green card.
[17] It is the applicant’s evidence that a United States immigration lawyer advised the parties that, as Canada recognized same-sex marriages, they should get married in Canada, and then they would have a valid marriage for the purpose of the applicant’s application for a green card.
[18] Consequently, the parties were married to each other in Ontario on July 12, 2013.
DISCUSSION
[19] While the foregoing discussion includes United States statutes, and jurisprudence, it is not necessary, in the case at bar, to make findings of fact as to the state of United States law and whether, under United States law, the parties’ marriage in Texas is valid.
[20] It is noted further that any legal analysis under United States law, as to whether the parties’ Texas marriage is valid, would need to consider also the 2015 decision of the United States Supreme Court in Obergefell v. Hodges, 135 S. Ct. 2584 (U.S. 2015) and its effect on Littleton and the 2003 amendment to the Texas Family Code voiding marriages between same-sex couples. In Obergefell, supra, it was held unconstitutional for same-sex couples to be denied the right to marry.
[21] The reference to United States law discussed above is to provide necessary context to explain why the parties regarded their Texas marriage as potentially void, or voidable, and to explain why the parties thought it necessary to marry in Ontario.
[22] The case at bar must be decided having regard to the conflict of laws rules governing the recognition of a foreign marriage. In Azam v. Jan, 2012 ABCA 197 (Alberta C.A.), the conflict of laws rules are discussed at para. 18:
18 … As stated by Amy J Kaufman in "Polygamous Marriages in Canada" (2005) 21 Can J Fam L 315 at 320-321:
The traditional conflict of laws approach to recognition of foreign marriages in Canada has two distinct aspects: the marriage must be both formally and essentially valid. To be formally valid, the formalities of the marriage must have conformed to the lex loci celebrationis, the law of the place of the marriage. To be essentially valid, each party must have had the capacity to marry under the law of his or her pre-nuptial domicile. ...
[23] The Azam case, supra, was sent back to the trial judge for further determination. At trial, in 2013, Erb J. stated in part at para. 46 [7]:
46 Until proven otherwise, foreign law is presumed to be the same as the lex fori, or law of the forum; in this case Canadian law. …
[24] Erb J. further added, at para. 47, that if a party seeks to prove that foreign law is different from Canadian law, then it must be specifically pleaded by the party relying upon it, and it must be proved to the satisfaction of the court.
[25] The foregoing principles, namely, that foreign law is a question of fact, must be pleaded, and that in the absence of such proof, that the foreign law is assumed to be the same as the lex fori, were discussed by G.A. Campbell J. in Ali v. Ahmad, 2002 CarswellOnt 354 at paras. 8-11:
8 Both parties seek to rely on what each claims is the governing foreign law in Iraq. Neither adduced any evidence to prove this law as a fact. We have only their conflicting opinions as to what constitutes a valid marriage in that country.
9 Foreign law is a question of fact which must be specifically pleaded by the party seeking to rely upon it. A Canadian court cannot generally take judicial notice of foreign law (J.-G. Castel, Canadian Conflict of Laws, 3rd ed. (Markham: Butterworths, 1994) p. 147 ff.
10 What actually constitutes a legally valid marriage in the Iraqi Republic must be proved in court by properly qualified witnesses. Those witnesses need not be entitled to act as a legal practitioner in the foreign country in question. Any person whose occupation makes it necessary for him or her to have knowledge of the law of a foreign country may be a competent and qualified witness. The competence and qualification of the witness is a matter for the determination of the court. If uncontradicted, that evidence is usually accepted, unless obviously unreliable or extravagant (Castel, at p. 150-51). In the absence of such proof, the foreign law is assumed to the same as the lex fori (Castel, p. 155).
11 As neither party lead any evidence of the necessary requirements for a valid marriage in Iraq, the laws and legal requirements of Ontario govern their circumstances.
[26] No evidence was led as to the foreign law. Accordingly, the case at bar must be decided assuming that the foreign law is the same as the law of the lex fori, meaning the law of the forum, which in this case means Canadian law.
[27] The applicant, in his factum (paragraph 52), submits that it is not necessary to determine the validity of the Texas marriage under U.S. federal or state law, but rather, the question to be determined is the status of the Texas marriage according to Ontario law at the time that the parties were married in Ontario. I accept the applicant’s submission, the effect of which is to apply the law of the lex fori both as to formal and essential validity.
[28] The applicant submits that under Ontario law, the Texas marriage was valid. The applicant relies on Halpern v. Canada (Attorney General), 2003 ONCA 26403, 65 O.R. (3d) 161 (Ont. C.A.), Hincks v. Gallardo, 2014 ONCA 494 (Ont. C.A.) and the Civil Marriage Act, S.C. 2005, c. 33, as amended.
[29] In Halpern, the Court of Appeal for Ontario, in 2003, reformulated the common law definition of marriage as “a voluntary union for life of two persons to the exclusion of all others.” This allowed same-sex couples to marry in Ontario. Following Halpern, the federal government, in 2005, enacted the Civil Marriage Act to define marriage for civil purposes as the lawful union of two persons to the exclusion of all others: s. 2.
[30] I accept the applicant’s submission that the Texas marriage was valid in Ontario when the parties married in Ontario.
[31] The analysis, at its simplest, is that the applicant is a male for the purposes of Ontario law. Although no Ontario or Canadian authorities were cited by the applicant as to the legal effect on transition from one gender to another, it is the applicant’s evidence that he has changed his gender identification in government-issued documents, including his Ontario birth certificate, Ontario driver’s licence and Canadian passport. Accordingly, I find, based on the evidentiary record before me, that the applicant was a male person at the time of the Texas marriage and at the time of the Ontario marriage, and that at all relevant times he was recognized, in Ontario, as a male person.
[32] Alternatively, even if there was admissible evidence in this case that under United States federal or state law the Texas marriage, at the time of the Ontario marriage, was void because the Texas marriage was deemed to be a marriage between same-sex persons, I find that in Ontario the Texas marriage still would be regarded as valid. In Hincks, supra, the Court of Appeal for Ontario affirmed a decision of the Superior Court of Justice [8]. That case involved a same-sex couple who had entered into a civil partnership, in 2009, under the United Kingdom’s Civil Partnership Act 2004 (U.K.), c. 33 (“CPA”). At issue was whether the parties’ civil partnership was a “marriage” and whether the parties were spouses within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] and Family Law Act, R.S.O. 1990, c. F.3. The motion judge, Mesbur J., made a declaratory order that the civil partnership was a “marriage” as defined by the Civil Marriage Act, and that the parties were spouses as defined by the Divorce Act and s. 1, Family Law Act.
[33] In Hincks, the central issue revolved around the facts that the CPA applied only to same-sex couples, that same-sex couples at the relevant time were not permitted to marry in the United Kingdom and that the CPA created a “parallel regime” to marriage where same-sex couples had the same legal rights and obligations as married spouses. The Court of Appeal for Ontario in affirming the decision of Mesbur J., stated in part at para. 17:
[17] …, the motion judge concluded that to do anything other than recognize the parties' civil partnership as a marriage would "run contrary to the express values of Canadian society, expressed in both case law, and the statute itself and would constitute impermissible discrimination": at para. 37.
[34] By way of summary, in concluding that the Texas marriage is valid, applying the law in Ontario at the time of the Ontario marriage, I note the following:
(a) under Ontario law, the applicant was a male person at the time of the Texas marriage and thereafter, and accordingly the Texas marriage was a marriage of persons of the opposite gender which raised no issue of validity in any event;
(b) even assuming that there was evidence as to the foreign law that established that the Texas marriage was void at the date of the Ontario marriage because the parties were considered a same-sex couple when they married in Texas, then under Ontario law, applying Hincks, it would be contrary to the express values of Canadian society, and also discriminatory, to refuse to recognize the Texas marriage as valid.
[35] A pre-existing marriage at common law is a ground for annulment [9]. Further, s. 2.3 of the Civil Marriage Act prohibits a person from contracting a new marriage until every previous marriage has been dissolved by death, divorce or declared null by a court order.
[36] Given the existing valid Texas marriage at the time that the parties were married in Ontario, the applicant is entitled to an annulment of the Ontario marriage.
ADDITIONAL PROCEDURAL MATTERS
A. Proof of Divorce
[37] The applicant was previously divorced in Ontario in 1993, prior to the parties’ Texas marriage. Rule 36(5)(c) requires proof of a previous divorce unless the marriage took place in Canada. Accordingly, in relation to the Texas marriage, the “proof” that usually would be expected would be the certificate of divorce. This document was not filed.
[38] However, as appears from the original certified copy of the Ontario marriage licence filed by the applicant, he is described in that document as “divorced” with the divorce having been granted in London, Ontario. In Ontario, a marriage licence shall not be issued to a person whose previous marriage was dissolved or annulled in Canada unless the person has produced for inspection by the issuer the necessary court documents verifying that the previous marriage has been dissolved or annulled: Marriage Act, R.S.O. 1990, c. M.3, s. 8(2). Accordingly, I am satisfied, on the basis of the issuance of the Ontario marriage licence, that the applicant’s previous marriage was dissolved and that the necessary court documents verifying the dissolution of that marriage were produced for inspection to the issuer of the marriage licence.
B. Hague Service Convention
[39] The respondent was served with the application on November 5, 2015 by regular mail addressed to her in California. The acknowledgement of receipt card signed by the respondent on December 1, 2015 is filed. The applicant did not specifically address whether this mode of service complies with the Hague Service Convention [10].
[40] In Wang v. Lin, 2016 ONSC 3967 (Div. Ct.), it was held that an originating document in a family law case that is served outside of Ontario in a contracting state must be served in compliance with the Hague Service Convention. In the case at bar, the Hague Service Convention applies because the United States is a signatory. Having considered: (a) the document “United States of America – Central Authority and Practical Information” on the Hague Service Convention website, including the various declarations by the United States; (b) Article 10 of the Hague Service Convention, and in particular Article 10(a) in relation to sending judicial documents by postal channels; (c) the United States not declaring opposition to Article 10; (d) the fact that the service used would be valid service in Ontario; and (e) Wang, supra, paragraphs 20, 21, 55, 63 and 65, I find that there was proper service on the respondent.
C. Claim for Annulment
[41] Although the applicant did not plead specifically that the Ontario marriage should be annulled, I am prepared on these unusual facts to grant that relief without the necessity of requiring the applicant to amend and re-serve the application. The respondent chose not to defend the application, and I find, in all the circumstances, that the respondent is not prejudiced that the relief granted for the Ontario marriage is an annulment, rather than a divorce.
DISPOSITION
[42] A divorce is granted dissolving the marriage of the parties who were married in Bexar County, Texas, U.S.A., on April 8, 1995. A divorce order shall issue in the usual form with the divorce being effective 31 days after today’s date.
[43] The marriage of the parties that took place in South Frontenac, Ontario, Canada, on July 12, 2013 is declared void and is annulled.
[44] The applicant shall forward a copy of these reasons and any signed and issued order to the respondent by regular mail addressed to her last known address and shall file proof of service.
[45] The very able assistance of the applicant’s counsel, Ms. Barr, in providing to the court a very thorough factum and book of authorities is acknowledged.
Footnotes:
[1] Section 2.001(b) provides that a marriage licence may not be issued for a marriage of persons of the same sex: Texas Family Code, Title 1, Chapter 2 (effective April 17, 1997)
[2] Littleton v. Prange, 9 S.W. 3d 223 (Tex: App. 1999)
[3] Texas Family Code, Chapter 6, section 6.204(b) (added by Acts 2003, 78th Leg., ch. 124, sec. 1, effective September 1, 2003)
[5] United States v. Windsor, 133 S. Ct. 2675 (2013)
[6] Obergefell v. Hodges, 135 S. Ct. 2584 (U.S. 2015)
[7] Azam v. Jan, 2013 ABQB 301 (Alberta Q.B.)
[8] Hincks v. Gallardo, 2013 ONSC 129 (S.C.J.)
[9] See the following case relied on by the applicant: Bolentiru v. Radulescu, 2004 ONSC 6239 (Ont. S.C.J.) at para. 25.
Released: May 8, 2017 Justice Victor Mitrow