COURT FILE NO.: FC-21-1690

DATE: 20220210

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jun v. Arnaud

BEFORE: Aitken J.

COUNSEL: Parties unrepresented by counsel

HEARD: Feb. 10, 2022

ENDORSEMENT

Nature of the Proceedings

[1] On September 27, 2021, Saenal Jun and Mickael Edouard Johan Arnaud applied under s. 31 of the Marriage Act, R.S.O. 1990, c. M. 3 for a declaration that they are legally married as a result of a religious ceremony held in a Catholic Church in South Korea on September 28, 2019.

Background Facts

[2] Prior to this religious ceremony, the couple had completed the Marriage Preparation Course offered by their local parish in Ottawa and had completed all documentation required of them by the church. The Marriage Preparation Course Certificate and other documentation was forward to the Roman Catholic Diocese of Jeonju in South Korea where permission was given for the couple to have a nuptial mass on September 28, 2019. Members of Mr. Arnaud’s family travelled from France and the United States to join members of Ms. Jun’s family and about 100 guests at the wedding ceremony in South Korea. A traditional Catholic wedding ceremony was held and included mutual vows and the exchange of rings. On October 8, 2019, the Roman Catholic Diocese of Jeonju issued a marriage certificate for the couple.

[3] In South Korea, marriage is a civil procedure and the performance of a religious ceremony does not constitute a legal marriage. Ms. Jun and Mr. Arnaud were advised by the church staff in Jeonju that, in order to be legally married, they would have to submit certain documents to the City Hall in Jeonju in person. One of the documents that had to be submitted was an Affidavit of Eligibility of Marriage. Mr. Arnaud is a citizen of France. The Affidavit of Eligibility of Marriage for him had to be issued by the French Embassy in Soeul. This Affidavit could only be requested by an in-person appointment at the French Embassy in Soeul. Mr. Arnaud was advised that it normally takes three weeks for the certificate to be issued. Both Mr. Arnaud and Ms. Jun had full-time employment in Ottawa at that time and could not afford to extend their stay in South Korea for this length of time while they waited for the Affidavit of Eligibility of Marriage to be issued. Consequently, they returned to Ottawa without having completed the necessary steps to be legally married in South Korea.

[4] Following their return to Ottawa, the couple researched how to register their marriage through the French Embassy or the Korean Embassy in Ottawa. They were advised by the French Embassy staff in Ottawa that a French citizen who gets married overseas can only get their marriage validated and registered through the French Embassy located in the country where the wedding ceremony took place. The Korean Consulate staff indicated that the couple’s religious ceremony on September 28, 2019 is not considered a legal marriage under Korean law. Thus, under Korean law, Ms. Jun and Mr. Arnaud are considered unmarried and are free to get married.

[5] In December 2019, the couple attended at Ottawa City Hall and completed a request for a civil marriage ceremony. When asked if they had ever had a wedding ceremony, they responded honestly that they had had one on September 28, 2019 in South Korea. On hearing this, the clerk refused to accept the couple’s form. The clerk advised that, since the couple had had a religious wedding ceremony elsewhere, they could not have a civil marriage ceremony in Canada. The couple then asked the clerk if they could register their marriage here and obtain an Ontario marriage certificate. The clerk advised that their marriage could not be registered in Ottawa because it did not take place in Ontario. The clerk then advised the couple to attend at the Ottawa Court House and apply for an order validating their marriage.

[6] Ms. Sun and Mr. Arnaud still do not have a legal certificate of marriage. As a result of their full-time employment, and the current difficulty with travel due to COVID-19, they have been prevented from trying other ways to have their marriage legally registered, such as returning to South Korea for an extended period of time in order to have their marriage registered there.

Analysis

[7] Section 31 of the Marriage Act reads:

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.

[8] The recent case of Lalonde v. Agha, 2021 ONCA 651, 62 R.F.L. (8^th) 268 provides direction as to how s. 31 of the Marriage Act should be interpreted; however, it can be distinguished on its facts.

[9] In Lalonde, the couple went through a religious marriage ceremony in a mosque in Tennessee. The mosque’s Imam performed the marriage ceremony in the presence of witnesses. Following the marriage ceremony, the parties received a marriage certificate signed and sealed by the mosque’s Imam. The certificate stated that the couple had been married according to the Quran and Sunnah and had been given the rights and privileges of husband and wife according to the Islamic Shariah. No licence was issued by any government entity. Aside from going through this religious ceremony and having it witnessed by other members of the mosque, the couple did not try to ascertain or comply with the formal statutory conditions of a legal marriage in Tennessee, including the requirements to obtain a marriage licence and register the marriage. The parties’ evidence, which was accepted by the trial judge, was that they did not know that they were not complying with Tennessee statutory requirements. They did not know that they had to obtain a marriage licence or register their marriage. On the contrary, they considered themselves legally married and conducted themselves in all aspects of their lives going forward as husband and wife.

[10] The couple came before the court during the course of legal proceedings under the Family Law Act, R.S.O. 1990, c. F. 3 following their separation. The wife was seeking an equalization of net family properties. The husband opposed the equalization, arguing that the couple had never been legally married. The trial judge decided that s. 31 of the Marriage Act could be used to validate their marriage in Ontario. He determined that the criteria for a deemed valid marriage under s. 31 of the Marriage Act had been met.

[11] The Court of Appeal dismissed the husband’s appeal and provided the following directions during the course of its reasons:

• Section 31 of the Marriage Act can be used to validate a formally invalid marriage notwithstanding that it was solemnized in a jurisdiction other than Ontario.

• In considering whether to make an order deeming a formally invalid marriage to be valid, the court may take into account the subjective good faith and intentions of the parties.

• Section 31 of the Marriage Act applies not only where there is an irregularity or insufficiency in the issue of a marriage licence but also where there is an absence of the issue of a marriage licence.

[12] In regard to the condition that the marriage is “intended to be in compliance with [the Marriage Act]”, the Court of Appeal stated, at para. 44:

In my view, a marriage is “intended to be in compliance with this Act” where there is an intention to create a formally binding legal marriage, that is, one that would be recognized for civil, as opposed to only religious, purposes. That intention will not be present where the parties know of the relevant formal legal requirements and deliberately choose not to follow them, notwithstanding that their marriage is recognized as a valid religious ceremony or was solemnized in good faith. But that intention may be found where the parties believe they are marrying for all purposes, any non-compliance was nondeliberate, and where the parties’ subsequent behaviour confirms that they considered themselves, from the time of the marriage ceremony, to have become legally married. [Emphasis added.]

[13] Again, at para. 49, the Court of Appeal stated: “A review of the caselaw reveals a consistent approach: marriages are deemed valid provided there is some evidence of intent to comply with marriage law and absent deliberate non-compliance.”

[14] The Court of Appeal went on to review several cases where couples have sought to have their marriages validated under s. 31 of the Marriage Act. The Court identified one particularly important factor being whether the parties knew that something more was required than the ceremony they went through in order for their marriage to be legally valid.

[15] That is the factor which differentiates this case from Lalonde. In Lalonde, both parties (but most importantly the wife who was seeking the equalization of net family properties) understood that the marriage ceremony the couple went through in Tennessee created a legally valid marriage between them. Neither of them knew that a marriage licence was required to create a formally valid marriage; they understood that they were entering into a legally binding marriage that would be legally binding anywhere, including under the laws of Ontario where they intended to reside following the ceremony.

[16] That is not the case here. Ms. Jun and Mr. Arnaud have been very candid in explaining that, as a result of the advice they received from the staff at the Roman Catholic Diocese in Jeonju, they knew that the religious marriage ceremony they went through in Jeonju would not result in a legally binding marriage. They knew that marriage is a civil procedure in Korea and that for their marriage to be legally recognized in Korea (and therefore Canada), it had to be registered at the City Hall in Jeonju. They tried to get their marriage registered there but were faced with roadblocks. For a variety of reasons, they were unable to overcome those roadblocks and had to return to Canada without completing the legal requirements for a valid marriage in Korea. They knew from the start that they had a problem and have assiduously tried to deal with it, unfortunately, without success.

[17] On the authority of Lalonde and the jurisprudence reviewed therein, I reluctantly have to conclude that s. 31 of the Marriage Act is not available to assist Ms. Jun and Mr. Arnaud. Instead, in my view, their first course of action upon their return from Ottawa, namely applying for a marriage licence so that they can have a civil marriage ceremony in Ottawa, was the appropriate course of action. The religious ceremony the parties went through in South Korea was of no legal force or effect under either Korean law or Ontario law. It did not result in the parties being legally married – despite their good faith in undergoing the ceremony and their initial intention to do whatever they had to do to be legally married in South Korea. Their knowledge that their religious ceremony was inadequate to render them legally married in Korea and their decision – for perfectly valid reasons – to return to Ottawa in the hope that they could get the Korean marriage validated from afar puts the deeming provision in s. 31 of the Marriage Act out of their reach.

[18] But Ms. Jan and Mr. Arnaud should not be caught in a Catch-22 situation. Although s. 31 of the Marriage Act cannot help them, the fact that the religious ceremony held in Jeonju was of no legal effect means that they have not been previously married and there is no impediment based on a previous marriage standing in the way of their obtaining a marriage licence at Ottawa City Hall. Based on the evidence before me at this time, if Ms. Jun and Mr. Arnaud return to City Hall to apply for a marriage licence and show this endorsement to the counter staff, I see no reason why their application would be denied simply because they went through a religious ceremony in South Korea that was of no legal effect either in South Korea or in Ontario.

Disposition

[19] For the above reasons, this application is dismissed.

Aitken J.

Date: February 10, 2022