Torabi v. Hilson, 2022 ONSC 4450

Superior Court of Justice

ONTARIO

COURT FILE NO.: 21-2281

DATE: 2022/03/30

BETWEEN:

Donia Torabi

Applicant

– and –

David Kenneth Hilson

Co-Applicant

Self-Represented

Self-Represented

HEARD: In Writing

JOINT APPLICATION FOR VALIDATION OF MARRIAGE

SOMJI J.

[1]

Overview

The parties seek to validate their marriage of April 11, 2021. On that date, the parties engaged in a religious marriage ceremony by a person qualified to marry them in front of friends and family. However, they married without having first obtained a valid marriage licence despite several attempts to do so. When the parties subsequently attended Ottawa City Hall to register the marriage in the province of Ontario, they were instructed to obtain a validation of the marriage from the court before officials would agree to register the marriage.

[2]

The Law

Section 31 of Marriages Act, RSO 1990, c.M.3 authorizes a court to validate a marriage entered into in good faith. Section 31 of the Marriages Act states:

Marriages solemnized in good faith

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.

3The test for validating a marriage under section 31 was recently addressed by this Court in Lalonde v. Agha, 2020 ONSC 3486, and affirmed by the Ontario Court of Appeal, 2021 ONCA 651. Paragraph 52 of the Court of Appeal decision states:

Section 31 of the Marriage Act 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; 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, at para.

16. Every marriage which satisfies all four elements of s. 31 is deemed to be a valid marriage.

[4]

Analysis

In this case, the parties were requested to file supplementary affidavits explaining why a marriage licence was not obtained prior to the religious ceremony and to clarify their intentions upon entering the marriage: Endorsement Somji J January 19, 2022.

5Based on the affidavits filed, I am satisfied the parties meet the test for validation of marriage.

6The parties explained that they made reasonable efforts to obtain a valid marriage licence before the date of the religious ceremony, but due to closures and restrictions at Ottawa City Hall, their appointment on April 8, 2021, to obtain a marriage licence was cancelled. The parties then obtained an appointment with an administrator outside of Ottawa in Rockland, Ontario, on April 9, 2021, two days before the scheduled religious ceremony. However, because one party did not have a birth certificate and the administrator would not accept an alternate piece of identification such as a health card or passport, they were not able to obtain a licence.

7The parties had already scheduled the religious wedding for April 11, 2021, to take place at mosque before friends and family who would gather virtually given the COVID-19 restrictions at the time. A copy of the Zoom wedding invitation was filed. It was also the parties’ wish to get married before the holy month of Ramadan which commenced the day after the wedding so they could observe fasting together during this month. The parties state, and I accept their evidence, that they were also advised over the phone by a City of Ottawa official that they could obtain the licence afterwards and for all these reasons, they proceeded with their religious marriage ceremony on April 11, 2021. Following the wedding, they were advised by another City of Ottawa official that they could not have their marriage registered in the province of Ontario unless it was validated by the court.

8Based on the evidence filed, I find it was the parties’ intention to comply with the Marriage Act. Unfortunately, because of restrictions and closures to government agencies resulting from COVID-19, they were not able to obtain a licence in a timely manner despite making considerable efforts to do so. I find the parties have met the second element.

9The parties indicate in their affidavits that it was their intention to enter the marriage in good faith. This is corroborated by the pictures from the wedding ceremony including of the

couple exchanging wedding rings. The parties also filed a religious marriage certificate issued by the Imam of the mosque stipulating the parties’ intention to enter into a marriage contract as husband and wife. The parties confirm that since the date of the religious marriage ceremony, they have lived and co-habited as a married couple. There is also no evidence to suggest that either party was disqualified from entering into a legally binding marriage. I find elements 1, 3, and 4 of s. 31 of the Marriage Act have been met.

[10]

Conclusion

I find the parties have satisfied all four elements of s. 31 of the Marriages Act. The parties’ marriage of April 11, 2021 is deemed a valid marriage.

Somji J.