Austin Anthony v. Aderonke Oqunbiyi
COURT FILE NO.: FS-20-98502-00
DATE: 2023-02-02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Austin Anthony, Applicant
AND:
Aderonke Oqunbiyi, Respondent
BEFORE: L. Shaw J.
COUNSEL: H. Makkar, for the Applicant A. Kaura, for the Respondent
HEARD: February 1, 2023
ENDORSEMENT
L. Shaw J.
[1] The applicant seeks a declaration that he is not married to the respondent. The respondent opposes on the basis that on December 18, 2004, there was a religious ceremony at their church, Above All Christian Gathering, in which they were married.
[2] The applicant also seeks a declaration that the property he owns, registered in his name alone, located at 14 Horatio Court in Brampton (the “property”) is not a matrimonial home and not subject to equalization. He also seeks an order that the respondent vacate the home immediately and that if she does not, a writ of possession be granted in his favour.
[3] Although the relief sought was not framed as a motion for summary judgment, that is the relief the applicant is seeking.
[4] According to Rule 16(4) of the Family Law Rules, if there is no genuine issue requiring a trial, the court can grant judgment. In my view, the issue of whether the parties are married spouses is an appropriate matter to resolve by way of summary judgment based on the evidentiary record before me.
[5] There is no credibility issue to resolve as there is no dispute that at the time of the religious ceremony, the applicant and respondent were living together, the respondent was pregnant with their first child, and the applicant was married to another woman from whom he was not divorced until August 16, 2005.
[6] The respondent relies on s. 31 of the Marriage Act, R.S.O. 1990, c. M.3 which states as follows:
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.
[7] The respondent’s evidence is that she arrived in Canada from Nigeria and did not know the laws in Ontario regarding marriage. She believed that she and the applicant were entering into marriage during the ceremony at their church in December 2004. While she acknowledges that the applicant subsequently told her that he was not yet divorced from his first spouse, her position is that the court can now deem their marriage to be valid as both parties entered into it in good faith.
[8] The respondent also relies on Jun v. Arnaud, 2022 ONSC 962 which considered s. 31 of the Marriage Act. In Jun, the court considered the recent decision from the Ontario Court of Appeal in Lalonde v. Agha, 2021 ONCA 651, which found that in considering whether to make an order deeming a formally invalid marriage to be valid, the court can consider the subjective good faith and intentions of the parties. Furthermore, the court found that s. 31 applies even where there is an absence of a marriage licence.
[9] In my view, however, s. 31 does not apply and I do not find the marriage to be valid as at the time of the ceremony, the applicant was married to another spouse and was therefore under a disqualification to enter a marriage with the respondent. The facts in this matter are distinguishable from both Jun and Lalonde.
[10] I rely on Giron v. Giron, 2017 ONSC 3712 where Corthorn J. found at para. 40 that s. 31 of the Marriage Act could not be used to deem a marriage valid where one of the parties was a minor and therefore under a legal disqualification to marry. She found that even if the marriage had been solemnized in good faith, the parties intended it to comply with the Marriage Act and they lived together as a married couple, the marriage was not valid due to the disqualification.
[11] In this matter, while both the applicant and respondent may have intended the ceremony to be a marriage ceremony, which I note that the applicant specifically denies, and while they lived together as common law spouses for a number of years, the marriage was void ab intio as the applicant could not enter into a marriage while married to another spouse.
[12] I therefore declare that the parties are not married.
[13] Having found that the parties are not married, they are not spouses, as defined in s. 1(1) of the Family Law Act, R. S. O. 1990, c. F-3. I therefore declare that the property is not a matrimonial home; Kanafani v. Abdalla, 2010 ONSC 3651 at para. 35.
[14] There is no dispute that the applicant and respondent are currently living in the property with their two daughters who are 17 and 14 years of age. There is also no dispute that the respondent owns a home which she purchased in September 2019, also located in Brampton, that is currently rented to tenants. On almost all other issues, there is significant conflicting evidence that in my view requires a trial to reconcile, as much will turn on credibility and reliability assessments.
[15] An example of the level of conflict is the dispute about the date the parties separated. While I do not have to resolve that issue for this motion, I note that there is a 10-year difference in the disputed date. The applicant alleges they separated in October 2009, the year before he bought the property in 2010, whereas the respondent alleges they separated in July 2019 and have been living under the same roof since.
[16] There is also a dispute about whether the respondent has been living in the property continuously since the applicant purchased it in 2010. The respondent says she has whereas the applicant says she has not.
[17] In January 2017, the applicant commenced an application seeking an order that the respondent vacate the property. In that application, the applicant claimed that the respondent owned a house in Toronto and that they had been in a prior common law relationship that ended in October 2009. He claimed that she moved back into the property and had been living there for the past 1.5 years. According to the applicant, after the respondent was served, she moved out of the property for four months but then returned and has lived there since.
[18] The respondent does not dispute that a property was purchased in Toronto in 2017 but she says it was purchased as an investment and then sold in 2019. Attached to her affidavit was a cheque made payable to the applicant in the sum of $51,916 in 2019 which she said was his 50% of the proceeds from the sale of the property. She also attached to her affidavit emails around the time of the purchase of the property in 2017 where the applicant refers to her as his common law spouse and says that they were living at the property with their children. This seems to be at odds with the application he commenced in 2017 seeking an order that she vacate the property and that they were not common law spouses since 2009.
[19] There is conflicting evidence regarding the purchase and sale of the property in Toronto. While nothing turns on that for the purpose of this motion, it reflects the level of conflicting evidence throughout these materials.
[20] With that overview, I will turn to the next issue. The applicant seeks an order that the respondent vacate the property as it is registered in his name alone and it is not a matrimonial home. He relies on Anness v. Kovacs, 2012 ONSC 7298 in which the court ordered the non-owner common law spouse to vacate the property. In that decision, the non-owner spouse did not respond to the application and there was no evidence from her.
[21] In Lewis v. Oriji, 2009 CarswellOnt 297, the non-owner common law spouse was living in the property and did not pay any of the expenses. The owner spouse sought an order that the non-owner spouse vacate and relied on the tort of trespass. Justice Blishen did not grant the relief finding that there was “lawful justification” for the non-owner spouse to continue to live in the property on an interim basis.
[22] In a recent decision of Abdulazia v. El Zahabi, 2022 ONSC 2591, Justice MacKinnon reviewed a number of decisions where an owner common-law spouse sought an order that the non-owner spouse vacate the property. A number of those actions included constructive trust claims based on the contributions made by the non-owner spouse to the property. At para. 19, MacKinnon J. noted that it was only in Anness, the case relied on by the applicant, that the unmarried non-owner was ordered to vacate the property. In other cases, the non-owner was not ordered to leave on the basis that meritorious claims from which the right to possession might flow should be adjudicated at trial before eviction is ordered. MacKinnon J. noted that the facts in Anness were distinguishable as there was no claim for a trust ownership interest.
[23] In Abdulazia, the court found that the non-owner spouse failed to present meritorious claims based on unjust enrichment and resulting trust. Nonetheless, the non-owner spouse was not order to vacate finding that the balance of convenience favoured her and the children remaining in the home pending its sale.
[24] In this case, there is conflicting evidence with respect to the financial contributions made by each party to the property. The respondent alleges that she has been paying $580.98 every month for the mortgage on the property since October 2010. There are bank statements attached to her affidavit that show transfers to the applicant and copies of cheques payable to him. She has therefore provided some evidence in support of her claim.
[25] Conversely, the applicant’s position is that the respondent has made no or negligible contributions to the property.
[26] The respondent did not upload her Answer to CaseLines. It is my understanding, however, that she did not advance a constructive trust claim but rather a claim for equalization of net family property on the basis that she believed she was married to the applicant. Based on my ruling that she is not a married spouse, she will have to seek leave to amend her pleadings as I presume that she will now seek an interest in the property by way of a constructive claim. The determination of that issue will also be impacted by a finding, at trial, of the date the parties separated.
[27] At this stage, I cannot say that the respondent’s claim is unmeritorious, particularly as she has not yet advanced a claim for an interest in the property based on the principle of constructive trust. I am therefore not prepared to order the respondent to vacate the property on an interim basis as her claim for an interest in the property should be adjudicated at trial.
[28] The respondent must seek leave to amend her pleading by March 1, 2023. Should she fail to seek leave by that date, she must vacate the property by September 1, 2023.
[29] I also decline to order the respondent to vacate the property on the basis of trespass. Based on the evidentiary record before me, there is lawful justification for the respondent to remain in the property. In reaching that decision, I have also considered that the respondent has been living in the property since 2017, if I accept the applicant’s evidence, or since 2010, if I accept the respondent’s evidence. In my view, there has been some acquiescence to the respondent’s presence which seems at odds with a claim she is trespassing, particularly if she has been contributing to some degree to the carrying costs of the property.
[30] During the motion, I asked counsel to forward to me the Voice of the Child Report completed by the OCL. What is evident in that report is that the children have been exposed to conflict and the respondent has been discussing the litigation with them. He must stop. The children love both parents. They appear to be very thoughtful young teenagers. Separated parents living under the same roof can be extremely difficult particularly if the children are exposed to the conflict, which has occurred in this matter. It would be in their best interest for their parents to engage in constructive discussions to resolve all outstanding parenting and financial issues. If they cannot engage in settlement discussions, they must proceed to trial without further delay.
[31] While I am not prepared to order that the respondent vacate the property at this time, the reality is that at some point, the parties will be living in separate homes. The children would be best served if new living arrangements could be agreed upon as soon as possible.
[32] The applicant also seeks an order striking the respondent’s pleadings on the basis that she has not complied with orders for disclosure. The respondent says she has complied. I am not prepared to consider the issue as the motion material was not properly prepared. It is not my role to search through affidavits, orders and request for information to try to piece together and decipher what is and is not outstanding. It is the obligation of both parties to present their evidence in a cogent fashion. There should be a chart listing what was requested, what was answered and what is outstanding – similar to an undertakings motion in civil matters. While I note that the applicant produced such a chart in connection with the cross-examination that was conducted, he did not do so for this motion. As such, it is not clear to me what is outstanding from his Request for Information dated June 29, 2021.
[33] Full and timely disclosure is the bedrock of family law litigation. If parties provided their disclosure, as required by the Rules, matters would get resolved in a timely fashion and the suffering that is often associated with this type of litigation would be greatly minimized. At the same time, I am often puzzled by the disproportionate disclosure requests often made by counsel.
[34] The applicant may renew his motion to strike the respondent’s pleading, on non-parenting issues, provided materials are filed that properly set out, in a chart format, what was requested and what was and was not received. The respondent will be required to prepare a similar chart if there is a disagreement. Both must also include supporting documentation.
[35] Lastly, I must comment on the use of CaseLines. The day before the hearing, my assistant contacted counsel to request that the material uploaded to CaseLines have proper hyperlinks. This means that there must be an index, identifying each exhibit, properly named, with hyperlinks. Each exhibit must be hyperlinked in the body of the affidavits. List of authorities must be hyperlinked. Affidavits and caselaw must be hyperlinked in the body of factums. The respondent failed to do so. At the commencement of the hearing, I expressed my concern. Counsel for the applicant graciously assisted counsel for the respondent and inserted hyperlinks for him in his material.
[36] I also informed counsel, the day before the motion, that they would have to use CaseLines page references. I also indicated that my preference was that counsel use the present or direct to page mode during submissions. Neither counsel knew how to do so.
[37] In this region, we have been using CaseLines for some time. It is expected that counsel and their staff are trained in how to properly upload and hyperlink their material. Counsel must become familiar in using CaseLines during their submissions. Material must also be uploaded to the proper bundle.
[38] The ineffective use of CaseLines cannot continue. All counsel have a responsibility and duty to their clients and the court to properly use CaseLines and electronic documents. The days of paper are over.
[39] In my view, there has been split success on this motion. Accordingly, there shall be no order for costs.
L. Shaw J.
Date: February 2, 2023
COURT FILE NO.: FS-20-98502-00
DATE: 2023-02-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Austin Anthony
Applicant
- and –
Aderonke Oqunbiyi
Respondent
ENDORSEMENT
L. Shaw J.
Released: February 2, 2023