Ontario Superior Court of Justice
Court File No.: FC-23-00000291-0000 (Kingston)
Date: 2025-05-16
Between:
Zertasha Saima
Applicant
Judith Millard, for the Applicant
-and-
Muhammad Waseem
Respondent
Steven Lahti, for the Respondent
Heard: February 20 and 21, 2025 (hybrid - in person and video conference)
Reasons for Decision on Focused Hearing
A.C. Trousdale
Introduction
1This Focused Hearing came before me on the issue of whether the parties are “spouses” as defined in Section 1(1) of the Family Law Act, R.S.O. 1990, c. F.3, as am. This is for the purpose of determining whether or not the Applicant is entitled to make a claim for equalization of net family property pursuant to s. 5 of the Family Law Act, as that relief is only available to spouses.
2The definition of “spouse” in Section 1(1) of the Family Law Act is as follows:
“spouse” means either of two persons who,
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
3During this court hearing, the Applicant received the assistance of a court certified interpreter in the Urdu language.
Background
4The Applicant and the Respondent were married in Pakistan on April 26, 1997 in an arranged marriage. The Applicant was 18 years old at the time of the marriage and residing in Pakistan with her parents.
5Both parties grew up in religious Muslim families and both continue to be practicing Muslims.
6The parties’ first child, A., a son, was born in Pakistan in July 1999. The Respondent was approved for residence in Canada in June 2001 and emigrated to Canada in 2001.
7The Respondent had also applied for residence in Canada for the Applicant and their son.
8The Applicant and their son were approved for immigration to Canada in 2004 and they moved to Canada in 2004 to join the Respondent to live in Toronto.
9The parties’ second child, I., a son, was born in September 2006.
10The Applicant and the Respondent separated in August 2010. The Applicant went to a shelter in Whitby, Ontario.
11The Applicant commenced a court proceeding in the Superior Court of Justice in Whitby. The Applicant and the Respondent, each with counsel present, consented to a temporary restraining order against the Respondent on November 19, 2010, which prevented the Respondent from entering any residence occupied by the Applicant and the two children, except for the purpose of picking up and dropping off the two children outside the Applicant’s residence in Whitby, at the beginning and end of access visits (as it was then called). A separate order with additional terms relating to the family law case was also made on that date. The temporary restraining order was never made into a Final Order.
12On May 22, 2012, the parties consented to a Final Order. Pursuant to that Final Order, the Applicant was granted sole custody (as it was called at that time) of the two children who would continue to have their primary residence with the Applicant. The Respondent was granted access to the two children on alternate weekends and midweek access every Wednesday evening, as well as summer and holiday access. There was no Order for child support or spousal support. There had been no claim for equalization of net family property. The Respondent was allowed to proceed with his claim for divorce on an uncontested basis on the grounds of separation for one year. The Divorce Order was granted on June 22, 2012.
13In 2013, the parties discussed reconciliation, although they do not agree on how the discussions came about or what was agreed.
14On June 20, 2013, the parties went through a Marriage ceremony/Nikah ceremony at a Mosque in Scarborough, Ontario. The parties do not agree on how the ceremony proceeded. The parties do not agree on whether they intended to get legally married or not.
15The parties lived together from shortly after the marriage. They had a third child, a son, Z., in March, 2015.
16The parties temporarily separated sometime in 2016 and reconciled in 2017. The parties do not agree on how long they were separated.
17The parties finally separated on September 14, 2021.
18The Applicant commenced this Application in October, 2023. She claimed a divorce, decision-making responsibility for the two younger children, parenting time, spousal support, child support, and equalization of net family property.
19The Respondent responded that the parties had had a Nikah ceremony without a marriage certificate and registration, which was therefore not a legal marriage. The Respondent claimed the Applicant was not a spouse and was not entitled to claim equalization of net family property.
Issues
20Should the parties’ ceremony on June 20, 2013 performed at the Mosque in Toronto, Ontario be deemed to be a valid marriage pursuant to the law of Ontario?
21If so, should there be an Order/Declaration made that the Applicant and the Respondent are spouses of one another for the purposes of the Family Law Act, including equalization of net family property?
22Should costs be paid by either party to the other?
Position of the Applicant
23The Applicant’s evidence is that she agreed to get back together with the Respondent only if they got legally married. The Respondent agreed. The Respondent told her that he would take care of the arrangements for their marriage and she trusted him to do so. The Applicant believed that they were legally married at the Marriage ceremony/Nikah ceremony and that they are spouses. The Applicant’s position is that she is entitled to claim a division of net family property.
Position of the Respondent
24The Respondent’s position is that he agreed to get back together again on the term that they would not get legally remarried. The Respondent states that the Applicant agreed with that term. The parties agreed to have a Nikah ceremony only, without a marriage certificate. Neither of them intended to legally remarry. As the marriage was not legal, the Applicant should not be entitled to claim equalization of net family property.
The Law
25This matter involves the following provisions of the Marriage Act, R.S.O. 1990, c. M.3:
4 No marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.
20 (1) No person shall solemnize a marriage unless the person is registered under section 20.1 or 20.2 as a person authorized to solemnize marriage or is authorized to solemnize marriage by or under section 24.
25 Every marriage shall be solemnized in the presence of the parties and at least two witnesses who shall affix their names as witnesses to the entry in the register made under section 28.
31 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.
26The leading case in Ontario on the issues in the case before me is the Court of Appeal case of Lalonde v. Agha, 2021 ONCA 651. This case concerned the scope of s. 31 of the Marriage Act which permits the Court to validate a formally invalid marriage solemnized in good faith.
27The issue in the Lalonde v. Agha case was whether s. 31 extends to validate marriage ceremonies performed outside Ontario, and whether it extends to purely religious ceremonies where the parties did not obtain a marriage licence and register the marriage.
28In that case, the Respondent was working in Tennessee and surprised the Applicant with the marriage on a weekend she was visiting him. The parties had a religious marriage ceremony at a Mosque in Tennessee performed by an Imam, with witnesses, and received a marriage certificate signed by the Imam. The parties did not obtain a marriage licence or register the marriage as required by Tennessee law. The evidence of both parties was that they did not know they had to do so. The parties lived together as husband and wife in Windsor for approximately 16 years and had three children.
29When the Applicant wife claimed an equalization of net family property, the Respondent husband took the position that the Applicant wife could not claim an equalization of net family property as there was no legally valid marriage because the parties had not complied with the law of Tennessee. This position was taken by the Respondent husband even though he acknowledged that he had considered himself to be married after the marriage ceremony which had taken place at the Mosque in Tennessee.
30In that case, the Court of Appeal found that there was no error in the trial judge’s decision that the provisions of s. 31 of the Marriage Act were met and that the marriage was deemed valid even though it was a marriage ceremony that took place outside Ontario and did not comply with the law of Tennessee.
31At paragraph 32 of Lalonde v. Agha, the Court of Appeal stated that:
Strict compliance with the statutory requirements for a formally valid marriage licence is therefore not required to invoke the deeming validity provisions of s. 31. If that were so, there would be no need for s. 31. As this court held in Alspector, “the Legislature did not assume, believe or expect that every couple who should intermarry in the Province would be familiar with this Act. It would be the rare case, indeed, in which either of them would know of the existence of the Marriage Act” (emphasis in original): at p. 687.
32The Court of Appeal in Lalonde v. Agha found that even the subjective intentions of one party are relevant and stated at paragraph 40:
I also disagree with the appellant’s position that the parties’ subjective intentions to comply with the law of Ontario are irrelevant. Neither the English nor the French language version of s. 31 precludes the assessment of the parties’ subjective intentions to comply nor have they been excluded from judicial consideration. As this court confirmed in Alspector, even the subjective intentions of one party are relevant. However, whether the evidence of an intention to comply is credible or reliable is another question. The issue of whether the parties or one party intended to conform with the law is a question of mixed fact and law that involves issues of credibility and reliability for a judge to determine.
33In the case of Alspector v. Alspector, the Court of Appeal validated the parties’ marriage as the Court found that the wife did not know that the absence of a marriage licence could affect the validity of her marriage, and that she intended to be in compliance with the law of Ontario.
I cannot conceive a case in which if both of the parties acted in good faith one of them could be held not to have intended the marriage ceremony to be in compliance with the law of the Province, and therefore, a nullity. If, for example, the groom knew of the non-compliance with some essential requirement to the solemnization and went through the ceremony intending that the result would be a nullity then he would not be acting in good faith. Moreover, if knowing of the non-compliance, he intended the ceremony to be a nullity, the law will not permit him in a subsequent action to plead his own fraud upon the bride in order to have the ceremony declared a nullity.
34The Court of Appeal in Lalonde v. Agha found no conflict between the prior caselaw in Ontario regarding s. 31 of the Marriage Act. In paragraph 49, the Court states:
I turn next to consider what the appellant has described as two conflicting lines of cases. In my view, there is no conflict. Rather, the divergent results in these cases stem from their divergent facts. 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.
35The Court of Appeal in Lalonde v. Agha then reviewed some Ontario cases where the court declined to validate the marriage and where the court validated the marriage.
36The following are some Ontario cases where it was found there was deliberate non-compliance and the court declined to validate the marriage.
37In Aden v. Mohamud, 2019 ONSC 6493, the court refused to deem the marriage valid where there was no marriage licence or registration because the Court accepted the evidence of the Respondent that he and the Applicant had an understanding from the beginning that they were purposefully not intending their marriage to be in compliance with Ontario law and that they never had any intention to comply with the Marriage Act. The Court focused particularly on the fact that the Respondent told the Applicant in 2014 that he intended to re-marry his first wife, which he did with a marriage licence and registration the following week. A few days after the Respondent re-married his first wife, the Respondent and the Applicant came to an agreement that the Respondent would alternate nights with the Applicant and his first wife.
38In the case of Chhokar v. Bains, 2012 ONSC 6602, the Applicant was seeking to have the marriage declared valid even though the parties had no marriage licence and no marriage registration. The Court found that the marriage was not valid. The Court found that it was the Applicant who did not want to get a marriage licence even though she knew it was necessary. The Court also found that the Applicant was untruthful in some of her evidence. The Court at para. 78 stated:
In a file like this, where there are issues with the credibility of both parties, the corroborative documents filed as exhibits take on of significant importance.
39The Court noted that the life insurance policy issued on the Respondent’s life shortly after the wedding showed the Applicant as a “friend”. The Applicant’s tax return after the wedding showed the Applicant’s marital status as “single”. In the following two years, the Applicant’s marital status was shown as “common law”. The Court found that these documents corroborated the evidence of the Respondent.
40In the case of Debora v. Debora, the Ontario Court of Appeal refused to find that a marriage entered into between the wife and husband with no marriage licence and no registration of the marriage was valid as the wife agreed with the husband’s request that there be no marriage licence or registration so that he could continue to receive his widower’s pension benefits under the Canada Pension Plan. The Court of Appeal found that the parties knowingly did not comply with the Marriage Act, and had no intention of complying with the Marriage Act.
41The case of Jamil v. Akhtar, 2023 ONSC 474 is a case heard subsequent to the case of Lalonde v. Agha. The parties were both from religious Muslim families where it would not be permitted to have a sexual relationship if not married. The parties had a religious ceremony but did not obtain a marriage certificate or registration.
42The parties separated after seven years. The Applicant then requested the court to validate the marriage so that she could claim equalization of net family property. The court found that there was no evidence of intention by the parties to comply with Ontario law and that the parties deliberately did not comply with the law. The court looked at documentary evidence such as income tax returns and other documents where the parties each identified themselves as “single”.
43The court found on the evidence that the parties knew that they had to register a licence for a valid marriage. The court found that the parties chose to have the religious ceremony to appease the Applicant’s parents, and that they deliberately chose not to obtain and register a marriage certificate. Accordingly, the court declined to validate the marriage.
44At paragraph 56 in Lalonde v. Agha, the Court of Appeal states:
By contrast, the cases where courts have validated marriages under s. 31 of the Marriage Act all involve findings that at least one of the parties intended to comply with the law of Ontario.
45In addition to the result in Lalonde v. Agha, in the following cases, Ontario courts have also validated marriages under s. 31 of the Marriage Act, based on findings that at least one of the parties intended to comply with the Marriage Act.
46The case of Isse v. Said, 2012 ONSC 1829, involved a marriage ceremony which took place without a marriage licence and registration. The Respondent wife’s evidence was that in organizing the wedding, it did not enter her mind that it was necessary to have a marriage licence and that the marriage would have to be registered. The Court relied on paragraph 47 from the Alspector case as to whether it must be intended by both of the parties or is it sufficient that one of the parties had the required intention to be in compliance with the law. The Court found that the marriage was valid, based on the Applicant’s evidence, that there was an intention that the marriage be in compliance with the law in Ontario.
47In the case of Jama v. Basdeo, ONSC 2922, the parties had an Islamic religious wedding ceremony. The parties did not obtain a marriage licence and there was no evidence that the officiant was authorized to solemnize marriages. On the evidence, the court found that the parties intended to be legally married and that both parties intended to comply with the law. The court validated the marriage pursuant to s. 31 of the Marriage Act.
48See also the cases of Friedman v. Smookler, and Ayoub v. Osman.
Analysis
49The four necessary elements of s. 31 of the Marriage Act are:
- The marriage was solemnized in good faith;
- The marriage was intended to be in compliance with this Act;
- Neither of the parties was under a legal disqualification to contract such marriage;
- After such solemnization the parties have lived together and cohabited as a married couple.
50It is undisputed that neither of the parties was under a legal disqualification to contract such marriage. I find that the third element of s. 31 has been satisfied.
51There is evidence that after the Marriage ceremony/Nikah ceremony the parties lived together for a number of years and had a child born during that period. The Respondent disputes that the parties cohabited as a married couple, but rather cohabited as a common law couple, so that is an issue to be determined by the court.
52It is disputed by the Respondent that this was intended to be a legal marriage, and that the marriage was intended to be in compliance with the Act. Accordingly, the first two elements also need to be determined by the court.
53Regarding the first two elements of s. 31, the Applicant’s evidence is that she contacted the Respondent in 2013 to get some help regarding how to get bail for their teenage eldest son who was having troubles with the law. The Respondent assisted with that. Shortly thereafter, the Respondent, when returning the second son from access, approached the Applicant about getting back together again. The Respondent apologized to the Applicant that he had mistreated her and the children, and that the children had been harmed by his abuse. The Respondent promised that his abusive behaviour would not be repeated. He promised the Applicant that it would be better for the children to have the family back together as the children would be able to go to an Islamic school in Toronto. There was no Islamic school in Whitby at that time. The Applicant asked for a few days to think about it. A few days later, the Applicant called the Respondent back to tell him that she would get back together again with the Respondent, but only if they got legally married. The Respondent agreed. He told the Applicant not to worry and that he would take care of all of the arrangements for their marriage. The Applicant trusted the Respondent to do so.
54A few days later, the Respondent and the Applicant attended at the Mosque at an appointment made by the Respondent for June 20, 2013 where the Respondent had arranged for them to get married again. The two witnesses were waiting in a room for them when they arrived. She states that she trusted the Respondent that they were legally getting married again. She believed that they did legally get married again on that day. After that ceremony, they lived together as a married couple. It wasn’t until she received the Respondent’s Answer in this proceeding that she realized that the Respondent was claiming they never legally married again.
55The Applicant’s evidence is that at the time of the Marriage ceremony/Nikah ceremony, she did not know that a marriage licence and registration was required for a legal marriage. She believed the Respondent when he said he would make all the arrangements for the marriage and that she need not worry. The Applicant’s evidence is that no one at the Mosque at the Marriage ceremony/Nikah ceremony told her, or the Respondent and her together, that a marriage licence was required, or that it would not be a legal marriage if they did not have a marriage licence. The Applicant’s evidence is that when she signed the document entitled Marriage Certificate in bold letters at the top of the document, there was no handwritten addition underneath that title saying “Nikah Certificate only”. When the Marriage ceremony/Nikah ceremony took place at the Mosque, the Applicant believed that she and the Respondent were legally married. On cross-examination, the Applicant was asked if she had met the Imam that day who had signed the certificate that day. The Applicant said she had not met him that day and that he had not been there. She said there were only the parties and the two witnesses there.
56The Respondent’s evidence is that the Applicant approached him about getting back together again. The Applicant apologized to the Respondent for her actions and for the court case. The Respondent only agreed to get back together again with the Applicant if they did not legally remarry. The Respondent told the Applicant he did not want to be saddled with the responsibilities of being married, including equalization of any family property in the future, as the parties had just gone through a lengthy court proceeding and divorce. The Respondent’s evidence is that he had just skirted by without a support order and he wanted to avoid a claim for equalization in the event of a future breakdown. He wanted nothing to do with the rights and responsibilities associated with a legal marriage. The Respondent states that the Applicant accepted the Respondent’s term for getting back together. The parties agreed to have a Nikah ceremony only, without a marriage certificate, so that they could live together, have sexual relations and have children without haram (sin), in accordance with their religious beliefs and culture. The Respondent states that neither of them wanted nor intended to legally marry.
57The Respondent’s evidence is that he and the Applicant went to the Mosque on June 20, 2013. The Imam asked if they had two witnesses. He told them to go out and get two people in the Mosque as witnesses, which they did. In the presence of those two witnesses, the Imam asked them if they had a marriage licence. The Applicant and the Respondent both informed the Imam that there was no intention of a formal marriage. The Respondent states that the Imam made it clear to the Applicant and the Respondent that the Marriage ceremony/Nikah ceremony then would only be a Nikah with no legal marriage being registered. The Respondent’s evidence is that he and the Applicant informed the Imam that that was exactly their intent. The Respondent says that the Imam then wrote “Nikah Certificate only” on the face of the certificate. Then, the Applicant and the Respondent both signed the certificate. The two witnesses were present during the discussion between the Imam and the parties. The Respondent’s evidence is that when the Applicant says there was no Imam there, she was either lying, or lost her memory of it, or she’s mistaken.
58A photocopy of the Marriage Certificate was put in evidence. It is entitled “Marriage Certificate” in larger bold printed letters near the top of the certificate. Someone has inserted in offset handwriting below Marriage Certificate, “Nikah Certificate only”.
59The Applicant’s evidence is that when the document was handed to the Respondent and her to sign at the Mosque, it had nothing handwritten on it. It did not say “Nikah Certificate only” on the Marriage Certificate. The Respondent signed it and then the Applicant signed it, and then it was handed back. The Applicant’s evidence is that the document entitled Marriage Certificate, was handed to the Respondent at the end of the Marriage ceremony/Nikah ceremony on June 20, 2013 and was kept by the Respondent in his briefcase. The Applicant states that she did not see that Marriage Certificate again until 2019, when the family was taking a trip to Pakistan. The Respondent told the Applicant to make photocopies of the Respondent’s and her own passport and the children’s passports, as well as the Marriage Certificate in case they were needed while they were away. The Applicant took a photo of those documents with her phone. She noticed “Nikah Certificate only” on the Marriage Certificate. She did not know whether it was essential to write this or not in Canada, as this was the first Nikah for her in Canada. The Applicant never saw the original of the document entitled “Marriage Certificate” again, but she did have the photo which she had taken at the time of the trip. The Respondent states that he does not have the original of the document entitled Marriage Certificate.
60The document entitled Certificate of Marriage was signed by a person identified as Imam. Accordingly, on reading the certificate there appears to have been an officiant at the Marriage ceremony/Nikah ceremony. The Respondent states that the Imam was present at the Marriage ceremony/Nikah ceremony. It appears the Applicant is mistaken that the Imam was not there.
61The Respondent called a neighbour as a witness. This witness stated in his affidavit that sometime in 2019 when the witness and the Respondent were talking in the Respondent’s backyard with no one else present, the Respondent opened up to the witness about the Respondent’s personal life, and how he had been married to the Applicant at one time, but that had ended in 2012. The Respondent explained that the Respondent and Applicant had resumed the relationship with a Nikah in 2013, and the Respondent made it clear that he was not married to the Applicant. The Respondent then told the witness that they had again separated in 2016 and got back together in 2017. The witness stated that he did not know prior to that conversation whether the Applicant and the Respondent were married or not married. The witness stated that was the only occasion that he and the Respondent talked about this.
62Dr. Aly Hindy, an Imam from the Mosque in Toronto at which the parties attended for the Marriage ceremony/Nikah ceremony was called as a witness for the Respondent. The Respondent’s counsel had on February 10, 2025 by 14B Motion requested that this Imam be allowed to testify on his phone as this Imam was working the day of the hearing. As the 14B Motion stated that this Imam was the most crucial witness in this matter, I dismissed the 14B Motion and required this witness to attend the hearing in person. I pointed out that the date for the hearing was set on November 27, 2024 and that the Respondent and his counsel should have ensured that the Respondent’s most crucial witness would be available to testify at the hearing in person.
63At the opening of the trial, the Respondent’s counsel provided a letter from this Imam’s physician, advising that this witness had been advised not to travel due to medical issues. The Applicant’s counsel objected to the Imam testifying by zoom and not being present to give evidence in person at the hearing. As the letter from this Imam attached as an exhibit to the Respondent’s affidavit seemed to very strongly certify and suggest that this Imam was the one who had conducted the Marriage ceremony/Nikah ceremony for the parties and that he had spoken with the parties at the Marriage ceremony/Nikah ceremony, I permitted this Imam to testify by zoom.
64However, contrary to the implication in this Imam’s letter that he had talked to the parties at the Marriage ceremony/Nikah ceremony at the Mosque, this Imam was not the Imam who did the Marriage ceremony/Nikah ceremony for the parties and he did not see or talk to the parties that day. As this witness was not present on the day of the Marriage ceremony/Nikah ceremony, he would not know what, if anything, the officiating Imam said that day to the parties, or what if anything, the parties said to the officiating Imam.
65The Respondent called as a witness an Islamic Chaplain/Imam at Queen’s University and within the prison system. The witness gave his evidence in chief by affidavit. The witness, who met the Respondent through friends, was called by the Respondent to give evidence about marriage and Nikah ceremonies. The witness was not presented, nor qualified, as an expert witness. The witness has never met the Applicant and was not present at the Marriage ceremony/Nikah ceremony of these parties.
66In the case before me, the Applicant’s evidence and the Respondent’s evidence conflict on almost every issue.
67The Respondent did not call as a witness the Imam who conducted the Marriage ceremony/Nikah ceremony, nor either of the two witnesses who were present at the Marriage ceremony/Nikah ceremony, to give evidence of what, if anything, was discussed at the Marriage ceremony/Nikah ceremony. Accordingly, the only evidence regarding the Marriage ceremony/Nikah ceremony is the conflicting evidence of the parties.
68The Applicant’s evidence is that the Respondent completed all legal forms for her during the marriage, including her income tax returns and the Statement of Live Birth when their third son was born in 2015. The Statement of Live Birth which was an exhibit to the Applicant’s affidavit, shows the Applicant’s marital status as “married”. The Respondent’s evidence is that the Applicant completed the form. It is indicated on the form that each party signed the form digitally.
69The Applicant’s evidence is that the Respondent prepared all of her income tax returns during the marriage with the exception of 2016 when the parties had a temporary separation. Her 2018 and 2019 Notice of Assessment (accessed by her on August 22, 2022) and her 2020 income tax return and Notice of Assessment (accessed by her on October 6, 2022) which were attached as exhibits to her Affidavit, all show her marital status as “Married”. The Applicant’s evidence is that the Respondent also prepared his own income tax returns and she believes that the Respondent showed his marital status on his income tax returns as “Married”.
70In December, 2024, the Applicant requested another copy of her Notices of Assessment from 2014 to 2020. On December 11, 2024, she received copies of those Notices of Assessment, which are attached to her affidavit filed for this hearing. Except for her 2016 Notice of Assessment where her marital status was accurately shown as “Separated”, her marital status for all the other years is shown as “Common Law”. Even her 2018 and 2019 Notices of Assessment which as of August 22, 2022 showed her marital status as “Married”, and her 2020 Notice of Assessment which as of October 6, 2022 showed her marital status as “Married”, now show the Applicant’s marital status for those years as “Common Law”.
71It is the Applicant’s belief that the Respondent changed the marital status on her Notices of Assessment from 2014 to 2020, except for 2016, from a marital status of “Married” to a marital status of “Common Law” without her knowledge and consent. The Applicant’s evidence is that she never received a phone call or letter from Canada Revenue Agency about this change. The Applicant states that the Respondent knew the password to her CRA account.
72The Respondent’s evidence in his affidavit filed for this hearing states that the Applicant filed both his and her income tax returns. He says the Applicant used the marital status as “married” as she believed she would get more benefits from CRA. This information that he knew why the Applicant used “married” as their marital status on their income tax returns conflicts with the Respondent’s evidence in the next paragraph of his affidavit where he goes on to say, “I was ignorant as to the marriage status selected on the tax documents. Frankly, I did not care or turn my mind to it, it did not seem to affect my life in any way.”
73The Respondent states in his affidavit that when he became aware that their marital status had been misrepresented by the Applicant when the Applicant provided her T1 forms to him in this court proceeding, and her marital status was shown as “married”, he contacted Canada Revenue Agency in order to correct the mistake. He stated that he did so to ensure that it would not come back to haunt him in the form of a future audit or re-assessment. He discovered that his marital status for previous years was also shown as “married”. The Respondent sent a letter to CRA requesting that his marital status for previous years be changed to “common law partner”.
74The Applicant’s evidence was that after the Marriage ceremony/Nikah ceremony, in accordance with the customs of their culture, she carried out all the duties of a wife, including being expected to manage every aspect of caring for the children, for the Respondent and for the household tasks. The Applicant states that when the Respondent was angry with her, he would threaten to put her out of the house and to divorce her.
75I find that the documentary evidence of the income tax returns and statement of live birth showing the Applicant’s marital status as “married” are very important evidence when the parties’ evidence is so conflicting on most of the issues. I find that the documentary evidence produced by the Applicant is corroborative of the Applicant’s evidence that she believed that the parties were validly married at the Mosque at the Marriage ceremony/Nikah ceremony. The fact that the Respondent changed his marital status from married to common law on his own tax returns filed during the years after 2013, after finding out that the Applicant’s 2018, 2019 and 2020 Notices of Assessment showed her marital status as “married” appears to be an effort on the Respondent’s part to change the documentary evidence to support his position that there was no marriage. It is not known how some or most of the Applicant’s Notices of Assessment were changed without her knowledge and consent, but the fact that it happened around the same time as the Respondent changed the marital status in his own returns is troubling.
76The Applicant claims that the Respondent introduced her as his wife to the neighbours. The Applicant called no evidence to corroborate that. The Respondent called one witness who was told by the Respondent that the Applicant and the Respondent were not married.
77A copy of the temporary restraining order made on November 10, 2010 by the Superior Court of Justice in Oshawa against the Respondent, on consent, with each party having counsel present, was an exhibit to the Applicant’s affidavit. This court order is supportive of the Applicant’s evidence that it was the Respondent who was abusive during the parties’ first marriage, rather than the Applicant being the abusive party, as alleged by the Respondent in his evidence.
78On balance, I find the Applicant’s evidence to be more credible than the evidence of the Respondent.
79I find that the Applicant wanted to be legally married. The Respondent knew that the Applicant would not live with him again, or have sexual relations with him, unless they were legally married. The Respondent told the Applicant not to worry and that he would make all the arrangements for the marriage ceremony. The Applicant trusted the Respondent to do so. I find that the Applicant relied on the Respondent to make all the arrangements for a legal marriage in accordance with her agreement to get back together again. I accept the Applicant’s evidence that she did not know at the time of the ceremony that a marriage licence and its registration were required to make the marriage legal. I accept the Applicant’s evidence that no one at the Mosque told her, or the Respondent and her together, at the ceremony that if the parties did not have a marriage certificate, the marriage would not be legal. I find that the Applicant believed that she was legally married at the ceremony at the Mosque on June 10, 2013. I find that the Applicant intended to comply with the law of Ontario. The Applicant did not intentionally or deliberately not comply with the Marriage Act. Accordingly, I find that the first and second elements of s. 31 have been satisfied.
80With respect to the fourth element of s. 31, I find on the evidence that the parties did cohabit and live together as a married couple for a number of years after the solemnization, and that they had their third child in the second year after the ceremony. On the documentary evidence, I find that the parties presented themselves as a married couple to Canada Revenue Agency and presented the Applicant’s marital status as “married” to the Ontario Government when they registered the birth of their third son. I find that the fourth element of s. 31 has been satisfied.
81Accordingly, I find that all four essential elements of s. 31 are satisfied.
82This case is very similar to the cases of Lalonde v. Agha, Isse v. Said and Jama v. Basdeo. The Court of Appeal in Lalonde v. Agha at para. 66 stated:
In sum, the parties intended to comply with whatever law governs the solemnization of marriages in Tennessee that would be recognized in Ontario. Denying the parties’ marriage would work an injustice on the respondent who relied on the appellant and unjustly relieve the appellant of his legal obligations in respect of the marriage that he voluntarily arranged, entered into, and derived the benefit of for 18 years. As this court stated in Alspector, “the law will not permit him in a subsequent action to plead his own fraud upon the bride in order to have the ceremony declared a nullity”: at pp. 687-88. This 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.
83In my view, denying the parties’ marriage in this case before me would similarly work an injustice on the Applicant and would permit the Respondent to plead his own fraud upon the bride in order to have the ceremony declared a nullity.
Decision
84Final Order to go that:
- The marriage ceremony which took place between the parties on June 20, 2013 in Toronto, Ontario is hereby deemed to be a valid marriage pursuant to s. 31 of the Marriage Act.
- The parties are each declared to be a “spouse” of the other as defined in s. 1(1) of the Family Law Act, and each party shall be entitled to claim equalization of their net family property pursuant to the Family Law Act.
Costs
85If the parties are unable to settle the issue of costs between themselves, the Applicant shall serve and file written submissions as to costs of not more than three typewritten double-spaced pages plus a Bill of Costs, and a copy of any Offers to Settle by June 3, 2025. The Respondent shall serve and file any written submissions as to costs of not more than three typewritten pages plus a Bill of Costs, and a copy of any Offers to Settle within 14 days of being served with the Applicant’s cost submissions. The Applicant may file a written response of no more than two typewritten pages within 7 days of being served with the Respondent’s costs submissions. If neither party files any written submissions as to costs within the aforesaid timelines, there shall be deemed to be no order as to costs.
Released: May 16, 2025
A.C. Trousdale