Lalonde v. Agha, 2020 ONSC 3486

Court File and Parties

COURT FILE NO.: FS-18-19304 DATE: 20200603 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Sophie Lalonde Applicant – and – Samer Agha Respondent

Counsel: Michelle DiCarlo, for the Applicant Robert J.M. Ballance, for the Respondent

HEARD: March 3, 2020

REASONS ON TRIAL OF AN ISSUE

MUNROE J.

1The applicant seeks equalization of net family properties. The respondent asserts that the applicant is not entitled to such relief because they are not married. Now before me is a trial of a single issue: whether or not the parties are married.

2The applicant, Sophie Lalonde (Ms. Lalonde or “the applicant”), seeks equalization of net family properties pursuant to s. 5(1) of the Family Law Act, R.S.O. 1990. C. F.3, as amended (“FLA”). This provision requires that the applicant be a “spouse” within the meaning of the FLA. The respondent, Samer Agha (Mr. Agha or “the respondent”), says Ms. Lalonde is not a “spouse” within the meaning of the FLA. The parties agree that the definition of “spouse” in the FLA s. 1(1) provides the statutory framework to resolve the ultimate question: is the applicant a “spouse” within the meaning of the FLA?

Procedural History

3Family law application FS-18-19304 was issued on October 30, 2018. Therein the applicant sought custody of the children, child and spousal support, and equalization of net family properties. Mr. Agha answered, on or about November 22, 2018, asserting, in part, that there was no marriage and thus the equalization claim must be dismissed. With leave, an amended application was filed on or about March 12, 2019, alleging that the parties were married on August 7, 1998 in the State of Tennessee in the United States of America, and adding divorce as a claim for relief.

4Precipitated by the applicant’s motion to compel certain financial information from the respondent and respondent’s refusal of same claiming irrelevance because there was no marriage, this court ordered this trial on the issue now before me. With regard to said trial, this court entered an order on January 16, 2020, that included the following:

3. The documents contained in the Applicant’s Evidence Act Notice shall be provisionally admitted at trial of the issue with leave for the Respondent to challenge same on relevancy grounds.
4. The current affidavits of both parties regarding this issue (continuing record tabs 13, 14, and 15) are admissible as evidence of each party at trial of the issue to the extent relevant to the issues.
5. The expert reports/affidavits of each party are admissible at the trial of the issue without live testimony from the experts.

5The trial of the issue commenced and concluded on March 3, 2020. Documents submitted for my consideration were as follows:

1. Trial Record;
2. Affidavits Brief which includes:
   • Tab 3: Affidavit of Ms. Lalonde dated June 3, 2019;
   • Tab 4: Affidavit of Mr. Agha dated June 10, 2019 which includes Letter opinion of Jason Ridenour of March 20, 2019; and Letter opinion of Jason Ridenour of June 10, 2019; and
   • Tab 5: Affidavit of Ms. Lalonde dated June 11, 2019.
3. Applicant’s Evidence Act Notice – the following were made exhibits:
   • Ex. 1-2: Affidavit of Martha Child dated November 26, 2019 (with attachments);
   • Ex. 1-3: Marriage Certificate dated August 7, 1998;
   • Ex. 1-4: Statement of Live Birth of Zakariah Agha;
   • Ex. 1-5: Parcel Register for 2970 Byng, Windsor;
   • Ex. 1-6: Charge/Mortgage of Land dated October 21, 2002;
   • Ex. 1-11: hospital record dated October 5, 2003;
   • Ex. 1-12: hospital record dated January 30, 2009; and
   • Ex. 1-13: hospital record dated October 16, 1999.
4. Exhibits:
   • Ex. 1: portions of Applicant’s Evidence Act Notice;
   • Ex. 2: Marriage Certificate (original);
   • Ex. 3: photographs;
   • Ex. 4: Statement of Live Birth – Zakariah Agha (original);
   • Ex. 5: text messages; and
   • Ex. 6: blank application for Statement of Live Birth.

6Three witnesses gave live evidence: Ms. Lalonde, Rosaire “Russ” Houle, and Mr. Agha.

7In addition to oral submissions, I received and considered the following written submissions of counsel:

1. Applicant’s Factum;
2. Respondent’s Factum; and
3. Applicant’s Reply Factum.

Facts

8Much is uncontested. I will note those areas which are contested and, if necessary for this decision, will resolve the contested facts.

9At the time of the trial, Ms. Lalonde was 47 years old and Mr. Agha was 50 years old. They have three children ages 11, 16 and 20 at the time of trial. At separation, they lived together in Windsor. Mr. Agha is a mechanical engineer working in Detroit, Michigan. Ms. Lalonde was a stay-at-home mother and now works as a pharmacy technician in Tilbury, Ontario.

10In or about 1993, Mr. Agha and Ms. Lalonde were living in the Montreal, Quebec area. They met at a nightclub and began seeing each other. Mr. Agha graduated with an engineering degree from Concordia University in 1997.

11On August 7, 1998, Mr. Agha was working in the United States in Memphis, Tennessee. Ms. Lalonde, who was still living in the Montreal area, flew down to be with Mr. Agha for the weekend. That day, they participated in a religious ceremony at a Memphis mosque frequented by Mr. Agha. At the conclusion of this ceremony, they were presented with a document which reads as follows:

MARRIAGE CERTIFICATE The Muslim Students’ Association: University of Memphis Masjid Annoor/Ahlussumah Waljama’ah Center certify to all that Brother Samer A. Agha and Sister Sophie S. Lalonde Have been married according to the Quran and Sunnah and are hereby given the rights and privileges of husband and wife according to the Islamic Shariah 8/07/98 /s/ Date Signature [gold seal: “Seal of the Imam”]

12Following the ceremony, the parties went out to dinner and had sexual intercourse. At the end of the weekend, Ms. Lalonde flew back to Montreal. Mr. Agha remained in Memphis working for a few more months and then returned to Montreal.

13Both parties continued living with their respective parents in the Montreal area until Mr. Agha secured a job in Detroit, Michigan. Thereafter, in the fall of 1999, the parties began living together as a couple in Windsor, Ontario. They lived as husband and wife until they separated on February 24, 2016. They had three children, bought a family home together, and filed taxes as married. Both believed they were married. As Mr. Agha admitted in cross-examination, “I considered myself married.”

14There is no marriage licence issued by any governmental entity, either in the State of Tennessee, the Province of Ontario, or elsewhere. Neither party made any effort to determine the requirements of a legal marriage.

15The parties disagree on the significance of the Memphis religious ceremony on August 7, 1998. According to Ms. Lalonde, this was a surprise marriage ceremony arranged by Mr. Agha. According to Mr. Agha, he had no intention of participating in a marriage ceremony and did not arrange for one. Rather, this was a religious arrangement performed to allow him to continue premarital sex with Ms. Lalonde without sin. A more in-depth review of the evidence is necessary to resolve this conflict.

16According to Ms. Lalonde, she was married to Mr. Agha in Memphis on August 7, 1998. They had been dating for almost five years and she was in love. She was raised Catholic and Mr. Agha was Muslim. She converted to Islam in the spring or summer of 1997. She wanted to get married and sought to avoid religious conflicts. They engaged in premarital sex but Mr. Agha believed this was a sin in his religion. Mr. Agha had her participate in prayers to eliminate the sin of engaging in such conduct. After the Memphis religious ceremony these prayers ceased.

17Ms. Lalonde testified that before Mr. Agha left for Tennessee, he gave her a “promise ring” as a commitment to be married. Then, via email in the spring of 1998, Mr. Agha proposed to Ms. Lalonde and she responded affirmatively. Although asserting that she could not recall the exact words, on cross-examination Ms. Lalonde testified that, in essence, Mr. Agha asked, “If I ask you to marry, would you?” Ms. Lalonde was in love with Mr. Agha and wanted to marry him.

18On Friday, August 7, 1998, Ms. Lalonde flew to Memphis, Tennessee and was picked up at the airport by Mr. Agha. He advised her that he had arranged for a marriage ceremony at the mosque. She was surprised but happy. Ms. Lalonde was in love and wanted to marry Mr. Agha. They went to the mosque. She was introduced to a man she understood was an Imam. The ceremony lasted perhaps 30 minutes and was in Arabic and English. There were witnesses but she did not know them. She does not recall saying anything. At the end they were presented with a marriage certificate she believed signed by the Imam. She believed it was a valid and legal marriage. She made no effort to register the marriage in Tennessee; she did not know they had to do so. She made no inquires about its legality; she believed it was and trusted her husband, Mr. Agha.

19On cross-examination, Ms. Lalonde reaffirmed the truth of the following paragraphs in both her Application and her Amended Application:

7. While living in Tennessee, [Mr. Agha] joined a mosque. As his involvement in the mosque increased, he became convinced that our relationship was sinful because we were not married.
8. On August 7, 1998, we were married in an impromptu religious ceremony at the mosque when I was visiting him for a weekend. No family or friends were present, only witnesses.
9. According to my husband, the impromptu marriage was intended to rectify the sinful nature of our pre-marital relationship. I converted to Islam prior to the marriage to accommodate him.

20According to Ms. Lalonde, “impromptu” meant there were no prior plans; Mr. Agha told her when she got to Memphis.

21Mr. Agha testified that he had no intention to get married. He made no plans for any religious ceremony. Friday is prayer day for Muslims and they went to the mosque. While there they went through a religious “arrangement” to allow him to continue premarital sex with Ms. Lalonde without sin. The person who performed the ceremony was not an Imam. He made no effort to register the marriage in Tennessee. He never proposed to Ms. Lalonde. He does not recall giving her a “promise ring”. He was going to break up with Ms. Lalonde when he got the job in Detroit but when she advised him she was pregnant, he accepted his responsibility.

22On cross-examination, Mr. Agha admitted he went through the marriage ceremony to absolve himself of the sin of premarital sex. Upon showing Mr. Agha the 2018 text messages between the parties wherein Mr. Agha wrote, “You hurt me more when you told me that we were not married.”, Mr. Agha admitted he considered himself married when he wrote that in 2018.

23On the evidence before me, I find that the religious ceremony at the Memphis mosque on August 7, 1998, was a marriage ceremony arranged by Mr. Agha. Thereafter both parties believed they were married. In this regard, I accept the evidence of Ms. Lalonde and reject the evidence of Mr. Agha. I consider the Marriage Certificate to be incontrovertible proof of this fact and it was unchallenged by Mr. Agha. Further, after this ceremony and Mr. Agha securing a job, the parties lived as husband and wife for the next 16 plus years in a jointly owned home raising three children. They held themselves out as husband and wife. And, on cross-examination, Mr. Agha admitted he considered himself married.

Expert Reports

24Pursuant to my ruling permitting expert reports without live testimony, both parties submitted expert reports on Tennessee marriage law.

Martha C. Child

25Ms. Lalonde relies on the expert report of Tennessee lawyer, Martha C. Child. Ms. Child opines that “Mr. Agha and Ms. Lalonde have a valid marriage, applying the doctrine of marriage by estoppel” recognized in Tennessee. Although a valid Tennessee marriage requires the issuance of a marriage licence, its absence, in certain circumstances, does not invalidate a marriage on public policy grounds. Ms. Child concludes:

When determining whether there exists marriage by estoppel the Tennessee courts will determine whether there was a formal ceremony, whether the parties believed themselves to be married, the length of the marriage, whether the parties cohabitated, whether the parties held themselves out to be married to friends and family, whether the community and public considered them to be married, children born of the marriage, and documentary evidence. All of these factors are affirmatively found to be in your favor. The Tennessee court would invoke the doctrine of marriage by estoppel and declare that a valid marriage exists between you and Mr. Agha.

Jason R. Ridenour

26Mr. Agha relies on the expert reports of Tennessee lawyer, Jason R. Ridenour. Mr. Ridenour opines that there is no valid marriage pursuant to the law of Tennessee. Marriage in Tennessee is governed by statute. Common law marriage does not exist. A marriage is valid only when the statutory requirements are met. One such requirement, absent here, is the issuance of a marriage licence prior to the marriage ceremony. Without the prior issuance of a marriage licence, there is no valid marriage. This is essential to the formation of a valid marriage and cannot be waived.

27With regard to marriage by estoppel, it does not apply to this case principally because both parties knew a Tennessee marriage licence had not been obtained. This is an exceptional doctrine and not one that allows couples to bypass the statutory preconditions and requirements to a valid marriage. It is equity based and applies only when the parties are blameless. Otherwise, it would be an avenue to create common law marriages in the state. “Both parties have unclean hands given the lack of marriage licence. It would be inappropriate to apply the equitable doctrine of marriage by estoppel under these circumstances.”

28Furthermore, Mr. Ridenour questions the applicability of this Tennessee doctrine here because the parties resided outside of Tennessee after the religious ceremony. He opines that Canadian law would be applicable because that is where the parties resided after the ceremony.

Positions of the Parties

Applicant

29The applicant asserts that she is lawfully married. The ceremony on August 7, 1998 was a formal religious marriage ceremony with both parties intending to be married. The lack of a formal marriage licence is not fatal to the validity and lawfulness of the marriage. The marriage is recognized under Tennessee law. The applicant relies on s. 31 of the Marriage Act, R.S.O. 1990, c. M.3 and the case of Isse v. Said, 2012 ONSC 1829, in asserting that the marriage here is valid and the applicant is entitled to equalization of net family properties.

Respondent

30The respondent asserts that there was no valid marriage. The parties are not legally married. The property regime of the FLA distinguishes between married spouses and common law spouses. Here, although the parties clearly are common law spouses, they do not qualify as married spouses. The religious ceremony of August 7, 1998 and the subsequent cohabitation does not alter that conclusion.

31Section 1(1) of the FLA controls. Subsection (1)(a) mandates that the parties be married to each other. This means compliance with the laws of Ontario or, in this case, the State of Tennessee, the place of the religious ceremony. The parties had no marriage licence and, indeed, made no effort to secure a marriage licence. Thus, they were not married and do not fall within subsection (1)(a).

32They also do not qualify under subsection (1)(b). Relying on Debora v. Debora, the respondent argues that the subjective belief of the applicant does not satisfy the “good faith” requirement of this subsection. In addition, the religious ceremony did not constitute a “void or voidable” marriage. There was no attempt by either party to comply with the marriage law. A simple assertion by the applicant that she trusted her husband and believed she was married is an insufficient basis to find a marriage.

33With regard to the claimed presumption of marriage relied upon by the applicant, the facts of this case easily rebut same because the parties failed to comply with the marriage law. A common law relationship was established, nothing more.

34Finally, it is clear under Tennessee law that there was no marriage. The assertion by the applicant that there was a recognized “marriage by estoppel” created is unfounded under Tennessee law.

Legal Principles

Marriage

35Marriage is defined by statute. In Ontario, the primary statute is the Marriage Act, R.S.O. 1990, c. M.3. For purposes of this case, the two relevant provisions are:

4. No marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.

-and-

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 cohabitated 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 licence.

36Section 31 is a deeming provision in circumstances of non-compliance or imperfect compliance with s. 4 of the Marriage Act, R.S.O. 1990, c. M.3. The section has four elements: 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, R.S.O. 1990, c. M.3; 3) neither party was under a legal disqualification to contract marriage; and 4) the parties must have lived together and cohabitated as a married couple after solemnization. Every marriage which satisfies all four elements of s. 31 is deemed to be a valid marriage.

37Several courts have considered the good faith and intention to comply elements of s. 31.

38In Alspector v. Alspector, the Court of Appeal considered a previous deeming provision of the Marriage Act and a Jewish marriage ceremony without a marriage licence. The deeming statute then, s. 33 of the Marriage Act, provided:

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 marriage, and notwithstanding any irregularity or insufficiency in the proclamation of intention to intermarry or in the issue of the licence or certificate or notwithstanding the entire absence of both; provided that the parties, after such solemnization, lived together and cohabited as man and wife.

39The issue decided there was the meaning of the phrase, “intended to be in compliance with the Act”. To that issue, the Court of Appeal, at para. 46, concluded:

It should be held that the legislature did not assume, believe or expect that every couple who should intermarry in the Province would be familiar with this Act. It would be the 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.

40The Court of Appeal upheld the trial court’s judgment declaring a good and valid marriage despite the lack of a marriage licence. The Court assumed that the wife knew that a licence had not been issued but she did not know that such absence could affect the validity of the marriage and intended that the marriage be in compliance with the law: see Alspector v. Alspector, at para. 49.

41Broad J., in Isse v. Said, 2012 ONSC 1829, at para. 26, followed Alspector and found a valid marriage pursuant to s. 31 of the Marriage Act, R.S.O. 1990, c. M.3. In that case there was an Islamic wedding ceremony but without a marriage licence: see Isse v. Said, 2012 ONSC 1829, at para. 11. The ultimate question was whether the marriage was intended to be in compliance with the Marriage Act, R.S.O. 1990, c. M.3: see Isse v. Said, 2012 ONSC 1829, at para. 19. The marriage validity was founded on the wife’s “undisputed evidence” that there was an intention to be in compliance with the marriage law: see Isse v. Said, 2012 ONSC 1829, at para. 25.

42In a very recent case, Peterson J. in Jama v. Basdeo, 2020 ONSC 2922, at para. 40, followed the reasoning in Issa and Alspector and found a valid marriage pursuant to s. 31 of the Marriage Act, R.S.O. 1990, c. M.3. This too was an Islamic wedding ceremony without a marriage licence: see Jama v. Basdeo, 2020 ONSC 2922, at para. 26. The marriage validity was founded on the finding “that the marriage was solemnized in good faith and was intended by both parties to comply with the law”: see Jama v. Basdeo, 2020 ONSC 2922, at para. 32. ¹

Spouse for Equalization Purposes

43For equalization purposes, ² s. 1(1) of the FLA provides the definition of “spouse”:

“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.

44Marriage under the FLA means marriage under the Marriage Act, R.S.O. 1990, c. M.3: see Debora v. Debora, at para. 12.

45The Court of Appeal in Debora considered the definition of “spouse” under subsection 1(b). There the parties entered into a Jewish religious ceremony intentionally without a marriage licence to allow the husband to continue his receipt of a widower’s pension. The wife argued that the marriage was in good faith on her part because her husband made representations that led her to believe she was legally married: see Debora v. Debora, at paras. 1-2. The Court focused on the meaning of “good faith” finding that it meant intention to comply with Ontario marriage law: see Debora v. Debora, at paras. 5-9. The Court specifically rejected “good faith” as referring to the state of mind of the wife as to the legality of the marriage when she knew the marriage deliberately was not conducted pursuant to Ontario law because her husband wished to continue to receive his widower’s pension: see Debora v. Debora, at paras. 3 and 10. In addition, the Court held that this subsection did not apply because the religious ceremony was not a “void or voidable” statutory marriage: see Debora v. Debora, at para. 11.

46Spies J., in Kanafani v. Abdalia, 2010 ONSC 3651, [2010] O.J. No. 2749, at para. 27, followed Debora and found no valid marriage pursuant to the Marriage Act, R.S.O. 1990, c. M.3. This was an Islamic wedding ceremony without a marriage licence: see Kanafani v. Abdalia, 2010 ONSC 3651, at para. 8. The marriage invalidity was founded on the following finding: “There is no evidence that the parties intended to comply with Ontario law and in particular the requirements of the Marriage Act, R.S.O. 1990, c. M.3.”: see Kanafani v. Abdalia, 2010 ONSC 3651, at para. 27.

Marriages Outside Ontario

47Marriages performed outside of Ontario generally are recognized. The law of the jurisdiction in which the marriage took place ( lex loci celebrationis ) – or the “formal” validity – governs the event itself. ³ The marriage must comply with local law to be valid.

Principles Applied

Tennessee

48It is undisputed that the Islamic religious ceremony on August 7, 1998, in Memphis, Tennessee, did not create a valid marriage under the law of the State of Tennessee because of the absence of a marriage licence. While acknowledging this, the applicant argues, supported by her expert, that the Tennessee doctrine of marriage by estoppel applies thereby validating the marriage. The respondent disagrees, supported by his expert. I decline to resolve this dispute on the application of a Tennessee legal doctrine to the facts of this case because it is the law of the Province of Ontario that controls the legal significance of the post-ceremony events. Included in the factors to be assessed when considering the Tennessee doctrine of marriage by estoppel are the length of the marriage, whether the parties cohabitated, whether the parties held themselves out to their community as married, and whether there were any children born of the marriage. All of these relevant factors took place in Ontario, not in Tennessee. Indeed, Ms. Lalonde was only in Tennessee for the weekend of the marriage ceremony. Mr. Agha only was in Tennessee on a work permit. He returned to Canada a few months after the ceremony. There is no evidence before me that the parties ever returned to Tennessee. They certainly were never residents there as man and wife. The parties lived openly as man and wife in Windsor, Ontario for many years until their 2016 separation. They had three children all born in Windsor, Ontario. They purchased the matrimonial home in Windsor, Ontario. Both parties are Canadian citizens. This application was brought in Windsor, Ontario. Upon reviewing these facts it is not difficult to conclude that only Ontario has an interest in the resolution of the marriage issues between these parties. Accordingly, whether or not subsequent events created a valid marriage will be determined by Ontario law.

Is there a valid marriage?

49Counsel disagree on this issue with each focusing on different statutes: for the applicant, s. 31 of the Marriage Act, R.S.O. 1990, c. M.3; and for the respondent. s. 1(1) (b) of the FLA. The suggestion, albeit unstated, is that the two sections are somehow different; the result will depend on which statute applies. I disagree. These are both Ontario laws and should be read consistent with one another.

50I first address the application of FLA s. 1(1)(b). It does not apply here. One of the elements of this subsection is that the marriage is void or voidable. As stated by the Court of Appeal in Debora v. Debora, at para. 11: “The religious ceremony was not void or voidable and these words have obvious reference to statutory marriage, which may, in particular circumstances be void or voidable.” The example used in Debora for a void or voidable statutory marriage was an unknowing marriage to a bigamist - the bigamist being disqualified from entering a second marriage. Here, as in Debora, there was no statutory marriage thus this subsection does not apply.

51Subsection 1(1) (a) of the FLA does apply, however. Under that subsection, a spouse means “either of two persons who…are married to each other.” Marriage under this subsection is determined by the Marriage Act, R.S.O. 1990, c. M.3: see Debora v. Debora, at para. 12. The Marriage Act, R.S.O. 1990, c. M.3 includes both traditional or statutory marriage, s. 4, and a deemed marriage upon satisfaction of enumerated factors, s. 31. Both satisfy the marriage requirement of FLA s. 1(1)(a). We do not have a s. 4 marriage here so we turn to s. 31 of the Marriage Act, R.S.O. 1990, c. M.3.

52Section 31 of the Marriage Act, R.S.O. 1990, c. M.3 has four elements: 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, R.S.O. 1990, c. M.3; 3) neither party was under a legal disqualification to contract marriage; and 4) the parties must have lived together and cohabitated as a married couple after solemnization: Isse v. Said, 2012 ONSC 1829, at para. 16. Every marriage which satisfies all four elements of s. 31 is deemed to be a valid marriage.

53Elements three and four clearly are satisfied. Neither party suggests, nor have I heard any evidence, that either party on August 7, 1998, lacked the capacity or was otherwise legally disqualified from entering a marriage. And, with regard to element four as I have found above, the parties lived together and cohabitated as a married couple for many years after the Memphis religious ceremony.

54With regard to the first element, good faith solemnization, there is no evidence of bad faith on the part of either party concerning the August 7, 1998 Memphis ceremony. These were two adults who wanted to marry and did so in a religious ceremony. I find there was good faith solemnization.

55The second element – intention to comply with the Marriage Act, R.S.O. 1990, c. M.3 – is the area of contention. Heavily relying upon Debora, the respondent challenges the satisfaction of this element asserting that Debora rejected subjective belief in compliance. Here, according to the respondent, the applicant’s subjective belief of a valid marriage, when neither party made any effort to comply with the marriage law, simply is insufficient to satisfy this requirement. I disagree.

56First, an intention element is, by its very nature, subjective. And second, in my view, the respondent’s interpretation of Debora is too expansive. ⁴ In Debora, the applicant wife intentionally and deliberately did not comply with the Marriage Act to allow her husband to continue to collect his widower’s pension from a previous marriage. Conceptually it is impossible to reconcile good faith intention to comply with a law when one deliberately decides not to comply with it. Intentional non-compliance can never satisfy an intention to comply.

57I follow the reasoning in Alspector v. Alspector and Isse v. Said, 2012 ONSC 1829. Ms. Lalonde intended to be in compliance with the law. There was no intentional or deliberate non-compliance. There was no indifference. Ms. Lalonde wanted to be legally married and thought she was. I find that there was the intention to comply with the marriage law.

58Accordingly, all four elements of s. 31 of the Marriage Act, R.S.O. 1990, c. M.3 are satisfied.

Conclusion

59For the foregoing reasons, I find that the marriage between Ms. Lalonde and Mr. Agha on August 7, 1998 in Memphis, Tennessee is deemed to be a valid marriage pursuant to s. 31 of the Marriage Act, R.S.O. 1990, c. M.3 and, therefore, the parties are “spouses” under FLA s. 1(1).

Costs

60If the parties are unable to resolve the issue of costs, the applicant shall provide me with her outline of costs and submissions (no longer than three pages) within 30 days of the date of the release of these reasons. The respondent shall respond in 30 days of service of the costs submissions with the same page limit.

Kirk W. Munroe Justice

Released: June 3, 2020

Footnotes

Footnotes

1. 1Another case, Ayoub v. Osman, 2006 ONSC 1900, [2006] O.J. No. 1176, at paras. 7-9 (Ont. S. Ct.), found a valid marriage after an Islamic religious ceremony without a marriage licence.
2. 2For support purposes, the definition of “spouse” is broader: s. 29.
3. 3There is another dimension to marriage validity often called “essential” validity. This refers to the capacity of the parties to marry. The law of the place where the parties were domiciled before marriage governs this issue. Because there is no challenge here to the capacity of either party to marry, this dimension is not discussed further.
4. 4Although interpreting a different statute, the Court of Appeal in Debora v. Debora, at paras. 5-9, interpreted “good faith” in FLA s. 1(1)(b) as an intention to comply with Ontario law. Thus, the same reasoning applies here to a related statute concerning the same intention to comply element.