Court File and Parties
COURT FILE NO.: FC-21-209 DATE: 20210302 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DASHA MOZA and HARSH VARDHAM THUSU, Applicants
BEFORE: Madam Justice Julie Audet
COUNSEL: Self represented Applicants
HEARD: In writing
ENDORSEMENT
[1] The applicants jointly seek a declaration that their marriage, celebrated in India on March 8, 2020, is valid. Should the Court grant their request, they ask for a marriage certificate to be issued accordingly.
[2] In support of this request, the applicant, Ms. Moza, indicates that the parties got married in a religious ceremony on March 8, 2020, in New Dheli, India. This was shortly before the COVID pandemic struck. Given the emerging news of countries closing their international borders, Ms. Moza states that the parties decided to return home to their respective destinations after the wedding (Ottawa, Ontario for Ms. Moza and London, U.K. for Mr. Thusu). As a result, she says, they did not get their marriage registered in India.
[3] Section 31 of the Marriage Act, R.S.O. 1990, c. M.3, states:
Marriages solemnized in good faith
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 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.
[4] In Isse v. Said, 2012 ONSC 1829, 19 R.F.L. (7th) 413, at para. 16, Broad J. sets out the four-part test to be applied when considering s. 31 of the Marriage Act:
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.
[5] I find that I am unable, based on the limited evidence before me, to grant the relief sought.
[6] In support of their claim that they indeed married in India, the applicants submitted their wedding invitation as well as 17 pictures of their wedding. They also provided a copy of their respective passports to confirm their identity. While I have no reason to doubt that the parties participated in a religious wedding ceremony in India on March 8, 2020, I have been provided with no evidence explaining why the marriage cannot be properly registered in India, even if the parties are not physically present there.
[7] In Lalonde v. Agha, 2020 ONSC 3486, at para. 59, Munroe J. deemed that a religious ceremony celebrated at a mosque in Memphis, Tennessee, was a valid marriage pursuant to s. 31 of the Marriage Act. Justice Munroe noted that “[m]arriages 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. The marriage must comply with local law to be valid” (at para. 47). In that case, given that the parties had not obtained a license from the relevant authorities in Tennessee, their marriage was not valid under the law of the State of Tennessee (at para. 48). However, Munroe J. stated that, whether or not subsequent events to the religious ceremony in Tennessee created a valid marriage had to be determined by Ontario law, pursuant to s. 31 of the Marriage Act (at para. 48). It is notable that in that case, the parties had been living together as husband and wife for 16 years after their marriage was celebrated.
[8] Here, I have been provided with no evidence as to whether the parties complied with the formal requirements of the laws in India for their marriage to be properly registered there. I have no evidence that would confirm whether the parties intended to comply with the local Indian laws; I have no evidence that would assist in confirming whether the parties’ marriage is valid in India (and it may very well be); I also have not been provided with any evidence of the parties’ intention, if any, to comply with Ontario’s Marriage Act. Although he appears to have signed the Application, Mr. Thusu did not provide any evidence in the context of this proceeding; all supporting documents were submitted and signed by Ms. Moza.
[9] While s. 31 of the Marriage Act allows the court to validate a marriage performed in good faith by two parties who believed they were in compliance with the law, when in fact they were not, it should not be considered an alternative to taking the necessary steps to have a foreign marriage registered in the jurisdiction where it was celebrated. The evidence provided to the court in this case strongly suggests that it is simply more convenient for the parties to seek a declaration that their marriage is valid from the Ontario Court, instead of having taken the necessary steps to properly register their marriage in India.
[10] In addition to all the above, no evidence was provided to confirm whether the parties met the fourth criteria set out by the court in Isse; that is, whether they lived together and cohabited as a married couple after the solemnization of their marriage. On the contrary; in her sworn affidavit, Ms. Moza confirms that each party returned to their respective residence after their marriage was celebrated. Ms. Moza returned to Ontario and Mr. Thusu returned to London.
[11] In those circumstances, I am not prepared to validate the parties’ marriage at this time. Once the applicants have taken all necessary steps to have their marriage registered in India, and only if those steps are not fruitful, they are free to adduce further and more compelling evidence demonstrating that the four-part test set out in Isse has been met, and I shall reconsider their request at that time.
Madam Justice Julie Audet
Date: March 2, 2021
COURT FILE NO.: FC-21-209 DATE: 20210302
ONTARIO SUPERIOR COURT OF JUSTICE
RE: DASHA MOZA and HARSH VARDHAM THUSU, Applicants
BEFORE: Madam Justice Julie Audet
COUNSEL: Self-represented Applicants
ENDORSEMENT
Audet J.
Released: March 2, 2021