Court File and Parties
COURT FILE NO.: FS-22-28404 DATE: 20240719 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ARINZE CHUKWU AGU Applicant – and – CAROLINE NGOZI AGU Respondent
Counsel: Elvira Akinyemi, for the Applicant Joy Nwawe, for the Respondent
HEARD: April 29, 30, May 1, 2 and 3, 2024
HOOD J.
Reasons for Decision
Introduction
[1] This application was issued in February 2022. In it, the applicant indicated that the parties were married on September 1, 1994. As part of his claim, he asked for a divorce and equalization of net family property. In the fact section of his application, he stated that the parties were married in September 1994 in their native country of Nigeria.
[2] In his financial statement of February 2022, the applicant again indicated that the parties were married on September 1, 1994. He listed five residential properties, including the matrimonial home in Toronto, as being assets. He also listed various assets in Nigeria.
[3] On August 18, 2023, while attending a settlement conference, the applicant advised the court, for the first time, that the parties were not married. Justice Horkins indicated that to make this allegation he would have to amend his pleadings. She ordered him to bring an amendment motion no later than September 28, 2023. He failed to do so.
[4] On December 5, 2023, following a motion heard October 17, 2023, Justice Rhinelander granted the applicant leave to amend his application by December 11, 2023. While not part of her specific order, Justice Rhinelander indicated in her reasons that the burden was on the applicant to disprove the legitimacy or legality of the parties’ marriage.
[5] The applicant again failed to comply with the imposed timeline and on December 19, 2023, Justice Rhinelander extended the date (to amend his application) to January 5, 2024.
[6] While the applicant filed and uploaded an amended application for the trial, apparently amended January 4, 2024, it appeared to have no changes from the original. In this “amended” application, the applicant was still seeking a divorce and the facts section still stated that the parties were married in September 1994 in Nigeria.
[7] While unclear whether the applicant ever did correctly amend his application pursuant to the leave granted, there was an amended application as part of the applicant’s trial record in which he stated that the parties “were traditionally and customary [sic] married in September 1994” but that “they never conducted a legal or court marriage.”
[8] The trial proceeded as if the applicant had properly amended his application, with the acknowledged onus being on the applicant to prove that there was no civil marriage, also known as a statutory marriage, in Nigeria. Both parties agreed, in their pleadings and in their opening statements, that they had had a traditional or customary marriage in Nigeria. However, this admission by the applicant, in his pleading and by his counsel, became somewhat of a moving target during the course of the trial. The applicant seemed to want to backtrack on this admission and seemingly tried to take the position that this traditional or customary marriage had perhaps not taken place or if it had taken place, that he was not present and that somehow the traditional or customary marriage was therefore also not valid.
Decision
[9] For the reasons that follow I have determined that the parties are validly married under both a Nigerian traditional or customary marriage (customary) as well as under a Nigerian civil or statutory marriage (statutory). Therefore, I find that the parties are spouses under the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), for the purpose, among other things, of equalization of net family property.
Facts and Analysis
[10] The applicant testified that he and the respondent were married under a customary marriage ceremony where his family paid money or a “bride price” to the respondent’s family, followed by a celebration party or event. He thought that this took place in the fall of 1992. While acknowledging the customary marriage, he testified that he was not present when the customary marriage took place, having previously left Nigeria for Italy on August 23, 1992.
[11] Why this became an issue was never made clear to me, especially considering the evidence of Austin Otah, who was the joint expert of the parties and whose evidence will be reviewed later. The applicant’s sister, Elizabeth Ani, also testified that the applicant was not present during the customary marriage. The respondent testified that the applicant was present during the customary marriage. She also testified that it took place on January 12, 1990. The applicant’s brother, Kester Agu, along with the respondent’s friends Perpetua Ugwu and Ifeoma Ani and the parties’ mutual friend Innocent Ani, all testified that the applicant was present during the customary marriage. They also testified that it took place on January 12, 1990. Kester further testified that his sister, Elizabeth, was not present during the customary marriage ceremony.
[12] Again, for reasons that were unclear to me, counsel for the applicant cross-examined the respondent and many of the respondent’s witnesses about what went on during the customary marriage ceremony and whether pictures were taken. She eventually argued that the applicant could not have been at the customary marriage ceremony because there were no pictures of him produced by the respondent.
[13] Leaving aside whether it would be reasonable to expect the respondent to produce pictures from over 30 years ago, especially before the advent of every phone also being a camera, I find the respondent’s evidence to be believable, compelling and far more credible and reliable than that of the applicant. It is also supported by her other witnesses. Further, her evidence is consistent with the limited documentation produced, whereas the applicant’s is not.
[14] I found the applicant to be unbelievable in his testimony. The applicant had no real explanation as to why, in all of the immigration documentation prepared by or for him, he indicated that he was either married to the respondent or that he was sponsoring a family member for immigration. He had no real explanation as to why the real estate charge and its associated statutory declaration, marked as exhibits, indicated that he and the respondent were spouses, other that it was the lawyer’s fault for not explaining things to him. He had no real explanation as to why he signed and certified on his children’s statements of live birth, also marked as exhibits, that the respondent was married, other than he was too busy to read anything and the form was filled out by the respondent. He had no real explanation as to why he claimed to be married in his initial family court application and was seeking a divorce, other than his initial lawyer did not explain to him the difference between common law marriage and a statutory marriage. Whenever confronted with a document that contradicted his new story, the applicant testified that it was someone else’s fault, and the document was wrong.
[15] All of the fact witnesses (other than the applicant and respondent), in addition to giving viva voce testimony under oath by Zoom, also provided affidavits. The parties agreed that in addition to their testimony, the affidavits of the various fact witnesses should also be entered as exhibits as part of their respective evidence in chief. While unusual, since both parties consented to this being done, I was prepared to allow this.
[16] All of the respondent’s fact witnesses stated in their affidavits that the applicant was present at the customary marriage. Some of them testified to this fact, as well. The respondent also testified that the applicant was present.
[17] As indicated previously, whether the applicant was or was not present at the customary marriage ultimately was not an issue. Mr. Otah, who was accepted by me as an expert in Nigerian family law matters, stated that the groom did not have to be present for a customary marriage to be valid. It was enough for the groom’s family alone to be present, without the groom himself, during the celebration for a valid customary marriage to have occurred.
[18] All of the witnesses, including those of the applicant and the applicant himself, agreed that his family was there, whether the applicant was or was not, and that there was a customary wedding celebration with the respondent present. Based upon the evidence of Mr. Otah, this was enough for a valid customary marriage. I also find, if necessary, that the applicant was in fact present at the customary marriage and that it took place on January 12, 1990.
[19] As mentioned earlier, I prefer the evidence of the respondent over the evidence of the applicant. I also prefer the evidence of the respondent’s four witnesses over that of the applicant’s sister Elizabeth with respect to what took place at the customary marriage. Their evidence was consistent where it mattered and was given without any apparent motivation, other than to tell the truth. Elizabeth on the other hand swore in her affidavit that there was no statutory marriage on July 17, 1992. However, when cross-examined, she was unable to say how she reached this conclusion or how she knew for a fact that the statutory marriage did not happen. She clearly was prepared to say what she thought would assist the applicant regardless of what her actual knowledge was.
[20] The respondent also alleges that she and the applicant had a statutory marriage on July 17, 1992. As explained by Mr. Otah, Nigeria allows what are known as “double-decker” marriages, where a couple who has gone through a valid customary marriage may also have a statutory marriage at a later date. When this happens, both marriages are considered valid under Nigerian law.
[21] The applicant testified that he and the respondent never had a statutory marriage in Nigeria. The respondent, to the contrary, testified that they did have a statutory marriage, as did Ifeoma Ani, who testified that she was a witness to it.
[22] The respondent testified that she and the applicant went to a local government office with Ifeoma Ani along with a friend of the applicant’s, Christoper Onu, who acted as the other witness, and that a government official conducted a small ceremony. After the ceremony they all signed the certificate of marriage, which was in a document book. The official then tore the certificate out of the book and gave it to her and the applicant.
[23] The respondent testified that it was the applicant who suggested that they have the statutory marriage so that he could use the marriage certificate to sponsor her as an immigrant to Italy if he was able to get to Italy first.
[24] The applicant did in fact go to Italy, but in 1996 came to Canada and began the Canadian sponsorship process for the respondent. In the immigration file for the sponsorship of the respondent, the applicant indicated that the respondent was his wife and that he was married.
[25] The respondent testified that as part of her immigration process she travelled to Ghana for an immigration interview. This is consistent with the immigration file, which indicates that the Canadian Visa office involved was in Accra, the capital of Ghana. Prior to the interview, the applicant couriered various documents to the respondent for her use during the interview, including the original marriage certificate given to them at the statutory marriage. Eventually the respondent was approved for immigration and arrived in Canada in April 2000.
[26] The respondent testified that she and the applicant kept a file in their home in Toronto where they had all of their important documents such as their passports, their children’s birth certificates, their immigration documents and files, and their marriage certificate. After the parties separated and the applicant moved out of the matrimonial home, the respondent looked at the file and discovered that the Nigerian passports had been removed along with the original marriage certificate. The file did happen to contain a photocopy of the marriage certificate.
[27] The respondent had her daughter take a photograph of the photocopied certificate and send it to a friend in Nigeria. She asked that her friend attend at the local government office to obtain a certified copy of the marriage certificate. Her friend did and was provided with a certified true copy of the parties’ marriage certificate on October 3, 2023. It was certified, signed and initialed by the local marriage registrar, Rosaline Ugwu.
[28] On October 10, 2023, the applicant wrote to Ms. Ugwu, claiming that there had never been a statutory marriage and that the marriage certificate that she had certified was a forgery. He asked her to conduct an investigation or enquiry into the matter. There was no evidence presented as to how the applicant learned of the certified true copy of the marriage certificate within a week of its issuance.
[29] Ms. Ugwu testified that she had initially certified the marriage certificate based upon the assurances of one of her clerks, who was in charge of the marriage registry and who told her that she had conducted the necessary investigations to ensure that Ms. Ugwu could sign and certify the certificate.
[30] As a result of the applicant’s letter, Ms. Ugwu testified that she then set up an “Administrative Panel of Enquiry” to investigate the matter. While this may sound like a formal investigation, it merely consisted of her, the clerk who had initially brought her the marriage certificate to sign, a worker from the local government office at the time named Solomon Abuchi, and three other employees spending two days searching through old documents, including old marriage registers, which were kept in a storage room at the government office.
[31] Ms. Ugwu and Mr. Abuchi both testified as to what they were told by the unnamed clerk who had initially presented the marriage certificate to Ms. Ugwu for certification. This evidence was clearly hearsay and inadmissible.
[32] They both testified that there were marriage records going back to the 1960s in storage but that the duplicate forms for this specific marriage certificate could not be found in any marriage register. There was no evidence given as to how they searched through the old documents, nor for example whether there were documents prior to and subsequent to July 17, 1992, or whether there were any other marriages on that specific date. What these witnesses provided was only a conclusion without any explanation as to how they reached that conclusion, other than that they were unable to find a record of the marriage. There was no actual report written, only two letters – one dated October 12, 2023 and one dated October 17, 2023, both addressed “To Whom it May Concern.”
[33] Ms. Ugwu, who had initially certified the document, now concluded that what she had certified days before as being a true copy of a certificate of marriage was actually a forgery. The only reason for making this conclusion was because after spending two days going through 60 years of documentation, the record of the original certificate could not be located. There was minimal evidence about how the marriage registers were stored or organized and under what sort of conditions. For example, while the storage room could be locked, was it locked all the time? Was there a log recording who had access to the storage room and when?
[34] There was no consideration by Mr. Abuchi that documents could have been removed from the storage room or the local government offices or that they could have been tampered with. He simply stated that it was not possible, with nothing more. He did admit that he had no knowledge of how the records were actually stored in 1992. Ms. Ugwu also testified that she had no knowledge of how the marriage registers were stored prior to late 2021 when she became the local marriage registrar. Ms. Ugwu also stated that she never considered whether records could be removed from the storage room or the offices.
[35] I am left to choose between the respondent, who gave detailed evidence about the statutory marriage ceremony, along with Ifeoma Ani’s testimony that she was a witness at the statutory marriage ceremony, and the applicant. I have found the applicant not to be at all credible. I conclude that there was in fact a statutory marriage and that it took place on July 17, 1992 in Enugu, Nigeria.
[36] I also find that there is insufficient evidence to conclude that the certificate of marriage provided, as initially certified by Ms. Ugwu on October 10, 2023, is a forgery. There was no real enquiry or investigation carried out, but merely a conclusion reached after a brief search and nothing more. In any event, even if I were to conclude that there was an issue with the certified copy of the marriage certificate and that it was perhaps a forgery, I would still be left with the credible evidence of the respondent that the statutory marriage did in fact take place. The testimony of those working in the local government, close to 30 years later, that they could not find a record of such a marriage does not prove to me that the marriage did not in fact take place.
[37] There is also the evidence of the expert Mr. Otah on Nigerian family law matters. He testified about the Nigerian marriage laws and regime. I conclude that the parties satisfied the four factors set out in R. v. Mohan, [1994] 2 S.C.R. 9, and met the requirement that the benefit of the evidence outweigh any risk of its admission as laid out in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. I find that Mr. Otah gave fair, objective and non-partisan evidence. He acknowledged that he was not giving evidence as to whether a statutory marriage between the parties actually took place.
[38] Mr. Otah stated in his evidence that a certificate of marriage is admissible as evidence of the marriage but did not go so far as to say that one needed a certificate of marriage to prove that a marriage did in fact take place. As he put it, if you are married, you know you are married.
[39] Mr. Otah also gave evidence as to the requirements of a customary marriage – consent, capacity, bride price and the giving away of the bride – all of which took place here. Both parties acknowledge that these requirements were met, and Mr. Otah further testified that even if the applicant were not present, there still would have been a valid customary marriage.
[40] Also, as mentioned previously, Mr. Otah testified that parties do not require more than one type of marriage ceremony for the marriage to be valid in Nigeria. However, they may have more than one marriage ceremony provided the customary marriage is first, followed by the statutory ceremony.
[41] Mr. Otah was clear in his evidence that even if there were no statutory marriage, couples in Nigeria would still be validly married where they have gone through a customary marriage ceremony alone.
[42] In closing, the applicant argued that even if the parties went through a customary marriage ceremony in Nigeria, that was not good enough for the Ontario marriage regime and that they should be considered a common law couple by the court under s. 1(1) of the FLA. The applicant also relied upon the Civil Marriage Act, S.C. 2005, c. 33, for reasons which were lost on me.
[43] Both parties rely on Lalonde v. Agha, 2021 ONCA 651, 159 O.R. (3d) 367, although for different propositions.
[44] The applicant argues that Lalonde stands for the proposition that the parties had to have had the intention, at the time that they went through the customary marriage ceremony in Nigeria, that they were intending to comply with the laws of Ontario for s. 31 of the Marriage Act, R.S.O. 1990, c. M.3 to apply, which operates to validate a formally invalid marriage solemnized in good faith.
[45] How this could even be possible is beyond me. If this is the only situation where s. 31 could apply then many if not most of the couples who have married outside of Ontario would not be considered to be validly married in Ontario, having no knowledge of Ontario law and specifically s. 31 of the Marriage Act.
[46] As stated in Lalonde, at para. 33, “The historical need for the legal validation in Ontario of marriages formally solemnized outside of Ontario likely stems from the practical reality that not all of the hundreds of thousands of individuals who have settled in this province have been in a position to prove the formal validity of their marriages.” The Court of Appeal went on to state, 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.” I reject the applicant’s position.
[47] Lalonde supports the respondent’s position. In Lalonde, the parties went through a religious ceremony in Tennessee but failed to comply with the laws of Tennessee and under Tennessee law were not legally married. Despite this, their marriage was deemed valid pursuant to s. 31 of the Marriage Act and therefore the parties were spouses under the FLA.
[48] This was because 1) the marriage in Tennessee was solemnized in good faith, 2) both parties wanted to be legally married and therefore intended to comply with the law, 3) there was no evidence that either was under a legal disqualification to marry and 4) they lived as a married couple after the ceremony.
[49] A similar conclusion applies here to both the customary marriage and the statutory marriage, even without a certificate of marriage. Even if I were to find that the certified copy of the certificate was a forgery, I accept that the parties went through a statutory ceremony with the intention of entering into a valid, legally recognized marriage and that a Nigerian certificate is not necessary for the marriage to be considered valid in Ontario. As well, the customary marriage meets the same four criteria and under it, once again, the parties intended to enter into a valid, legally recognized marriage. Moreover, the customary ceremony was, according to the expert called, a valid marriage under Nigerian law and so pointed out in Lalonde, at para. 25, “[T]he formal validity of a marriage is determined by the law at the jurisdiction where the marriage is celebrated”.
[50] The evidence is clear that the parties intended to be married. They lived together in Nigeria for over 2 years and in Ontario for over 22 years. They had four children together. They indicated that they were married on various legal documents, including immigration records, birth records and mortgage documents.
[51] The applicant has failed to rebut the presumption of a valid marriage. The parties intended to comply and did comply with the law governing the solemnization of marriages in Nigeria. Denying the parties’ marriage would work an injustice upon the respondent and, as stated by the court in Lalonde, at para. 66, “would run counter to the long-standing presumption of the validity of marriage and frustrate the socially important goal of avoiding the very circumstances that s. 31 of the Marriage Act was intended to address.”
Conclusion
[52] Based upon the foregoing reasons I find that the parties are validly married under both the customary and statutory marriages held in Nigeria and that the parties are spouses under the FLA.
[53] Being the successful party, the respondent is presumptively entitled to costs. Both parties provided their Bill of Costs, which are for nearly the same amounts. I would hope that the parties will be able to reach an agreement on costs. If unable to do so, the respondent is to serve and file her costs submissions, not to exceed three typed double-spaced pages, together with any necessary documentation such as offers to settle by August 2, 2024. The applicant’s cost submissions, subject to the same directions, are to be served and filed by August 16, 2024. Both sets of submissions are to be uploaded to Case Center and are also to be sent to my assistant maria.kolliopoulos@ontario.ca.
Justice K. Hood Released: July 19, 2024