Swinden and Crowell, 2023 ONSC 2310

Court File and Parties

COURT FILE NO.: FC353/23 DATE: April 14, 2023 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Roger Bruce Stanley Swinden and Donna Leah Crowell, Applicants

BEFORE: SAH J.

COUNSEL: M. Goodacre for the Applicants

HEARD: In Writing

Endorsement

Introduction

1The parties have submitted a joint application seeking to validate their marriage of October 2, 2021.

Background

2The parties met in late 2018, began dating in early 2019, and commenced cohabitation in March 2020.

3They intended to marry soon after cohabiting, but due to the COVID-19 pandemic, their plans were thwarted.

4When COVID-19 restrictions eased in the summer of 2021, the parties begin planning their wedding.

5On September 3, 2021, they attended City Hall, in London, Ontario, and obtained a marriage license.

6The parties participated in a ceremony at Saint James Westminster Church in London, Ontario on October 2, 2021.

7According to their affidavit, their marriage license was provided to the Reverend who performed the marriage, and it was signed during the ceremony.

8The parties’ families were present, along with 40 guests, which was the maximum occupancy permitted during the Covid restrictions. Because the parties could not host an indoor reception at the church, they held a reception and picnic lunch outside on the church's lawn.

9The service was performed by Reverend Hana Scorrar, an Anglican priest. This was the first marriage that the Reverend solemnized since becoming ordained.

10At the time of the ceremony, the parties, as well as the Reverend, were unaware that the Reverend was not registered under Ontario's Marriage Act, RSO 1990, c.M.3, as a person authorized to solemnize a marriage in the province.

11The Reverend deposed that she was under the mistaken belief that she was authorized to perform a marriage ceremony as a result of being ordained by the Anglican church, and that she misunderstood that she was required to be registered in accordance with the Marriage Act.

12By the summer of 2022, the parties had not received their marriage certificate in the mail. The parties applied online for a certificate through Service Ontario.

13By the end of 2022, the parties depose that they received a phone call from the Office of the Registrar General of Ontario, who informed them there was no record of their marriage.

14They then followed up with the Reverend.

15The Reverend deposed that she signed the marriage license and filled out her information as the clergy who solemnize the marriage. She further deposed that she mailed the completed marriage license to Service Canada.

16According to the Reverend, all proper protocol was followed during the wedding ceremony in accordance with the church’s rights and traditions.

17Section 31 of the Marriage Act authorizes a court to validate a marriage entered into in good faith. The section 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.

18Put simply, the following four elements must be applied for a marriage to be deemed valid under the Marriage Act:

19The marriage must have been solemnized in good faith;

20The marriage must have been intended to be in compliance with the Marriage Act;

21Neither party was under a legal disqualification to contract marriage; and,

22The parties must have lived together and cohabitated as a married couple after solemnization.

Analysis

23Based on the affidavits filed, I am satisfied the parties meet the test for validation of marriage.

24The parties obtained a valid marriage licence before the date of the religious ceremony. They gave this licence to the Reverend who signed it after the religious ceremony performed at a church in the presence of their families. Based on this, I find that the marriage was solemnized in good faith and in accordance with the church’s rights and traditions.

25I accept the parties’ evidence and, based on the actions of the parties, I further find that the parties intended to comply with the Marriage Act.

26Unfortunately, because of information unknown to them at the time, the Reverend was not registered in accordance with the Marriage Act.

27The parties have met their onus of satisfying the court that the first and second elements of the test have been met.

28No evidence was tendered to support a finding that the parties were under a legal disqualification to contract marriage.

29The parties deposed that since the date of the religious marriage ceremony, they have lived and co-habited as a married couple.

30The parties have continued to wear their wedding rings which were exchanged during their ceremony. They have joint investments and a joint credit card. They filed their 2021 Income Tax Returns as "married". They attended a lawyer’s office to sign new Wills, believing that their previous Wills were automatically revoked by their marriage.

31Based on this evidence, I conclude that the parties have not only live together and cohabited but have done so as a married couple after the solemnization.

32The parties have met their onus of satisfying the court that the third and fourth elements of the test have been met.

Conclusion

33Having found that the parties satisfied all four elements of section 31 of the Marriage Act, the parties’ marriage of October 2, 2021 is deemed a valid marriage.