



COURT OF APPEAL FOR ONTARIO

CITATION: Lalonde v. Agha, 2021 ONCA 651

DATE: 20210924

DOCKET: C68482

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Sophie Lalonde

Applicant

(Respondent)

and

Samer Agha

Respondent

(Appellant)

Robert J.M. Ballance, for the appellant

Michelle DiCarlo, for the respondent

Heard: June 29, 2021 by video
    conference

On appeal
    from the order of Justice Kirk W. Munroe of the Superior Court of Justice dated
    June 3, 2020, with reasons reported at 2020 ONSC 3486.

L.B. Roberts J.A.:

Overview

[1]

This appeal concerns the scope of s. 31 of Ontarios
Marriage Act
, R.S.O. 1990, c. M.3, which operates to validate a
    formally invalid marriage solemnized in good faith. Specifically, this appeal
    will determine whether s. 31 extends to marriage ceremonies performed outside
    of Ontario and to purely religious ceremonies where the parties took no steps
    to obtain a licence or register the marriage.

[2]

The trial of the issue of the validity of the
    parties marriage arose in the context of the respondent wifes application in
    which she sought custody
[1]
of their children, child and spousal
    support, and equalization of net family property. In his answer, the appellant husband
    claimed there was no legally valid marriage and, as a result, the respondents claim
    for equalization of net family property must be dismissed.

[3]

The appellant appeals from the trial judges
    final order that the parties August 7, 1998 marriage in Memphis, Tennessee is
    deemed to be a valid marriage pursuant to s. 31 of the
Marriage Act
and, therefore, that the parties are spouses under the
Family Law Act
,
    R.S.O. 1990, c. F.3 (the
FLA
), s. 1(1), for the purpose, among
    others, of equalization of net family property. Under s. 1(1) of the
FLA
,
    only legally married spouses, or those who 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 are entitled to equalization of
    property on marriage break down.

[4]

For the reasons that follow, I would dismiss
    the appeal.

Factual background

[5]

On August 7, 1998 the parties participated in
    a religious marriage ceremony at a mosque in Memphis, Tennessee. The appellant,
    a practising Muslim, had attended this mosque for the few months that he
    resided and worked in Tennessee. He had arranged for the ceremony to take place
    during the weekend that the respondent was visiting him from Canada. While the
    appellant subsequently disputed the legal validity of the ceremony for the
    purposes of property equalization, his evidence was that he believed the
    ceremony was necessary to permit the parties to engage in sexual relations, as
    pre-marital sexual relations were considered sinful under Islamic religious law.
    The respondent had converted to Islam about a year before the ceremony.

[6]

The mosques Imam performed the marriage
    ceremony and signed the marriage certificate. Following the marriage ceremony,
    the parties received a marriage certificate with the seal of the mosques Imam.
    The certificate states that they [h]ave been married according to the Quran and
    Sunnah and are hereby given the rights and privileges of husband and wife
    according to the Islamic Shariah.

[7]

No marriage licence was issued by any
    government entity. Other than having the marriage solemnized by the mosques
    Imam and witnessed by other members of the mosque, the parties 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.

[8]

The parties both gave evidence that they did
    not know that they were not complying with Tennessee statutory requirements.
    They did not know they had to obtain a marriage licence or register their
    marriage. Rather, they considered themselves to be legally married. Until their
    separation in 2016, they lived openly as husband and wife for many years in
    Windsor, Ontario, where they had three children and purchased the matrimonial
    home. They recognized themselves as married to each other on government and
    other official documents. On his cross‑examination at trial, the
    appellant testified that even following the parties separation, he thought of
    himself as married to the respondent. However, in response to the respondents
    application for equalization of net family properties, the appellant took the
    position that there was no marriage.

Trial of an issue

[9]

The appellant never disputed that the parties were
    common law spouses, entitling the respondent to spousal and child support. The
    point of contention at the trial was whether the August 7, 1998 religious
    ceremony created a valid marriage under Tennessee or Ontario law for the
    purpose of the respondents entitlement to make property claims under the
FLA
.
    The respondents equalization claim pursuant to s. 5 of the
FLA
relied
    on her meeting the definition of a spouse under s. 1(1) of the
FLA
.

[10]

Both parties called legal expert evidence concerning the conditions
    of a valid marriage in Tennessee and the validity of their marriage ceremony at
    the mosque. Both experts agreed that in Tennessee, marriage is governed by
    statute, common law marriage is not recognized, and the statute,
Tennessee
    Code Annotated
, requires the issuance of a marriage licence prior to any
    religious ceremony. They also agreed that in certain exceptional circumstances,
    the absence of a marriage licence does not invalidate a marriage on public
    policy grounds and that the equitable doctrine of marriage by estoppel could be
    applied to validate a formally invalid marriage.

[11]

The experts disagreed on whether the doctrine of marriage
    by estoppel should be applied in the circumstances of this case. While the
    respondents expert, Martha Child, opined that the doctrine of marriage by
    estoppel should be invoked here, the appellants expert, Jason Ridenour, thought
    that it should not, because even though they were unaware of the requirement, the
    parties knew they had not obtained a Tennessee marriage licence.

[12]

The trial judge found that the religious ceremony did not create
    a valid marriage under Tennessee law because the parties did not obtain a
    marriage licence. However, he determined that it was unnecessary to resolve the
    question as to whether the Tennessee doctrine of marriage by estoppel should be
    applied to validate the parties formally invalid marriage. He concluded that
    Ontario law applied because the parties spent their entire married life in
    Ontario and the respondent was seeking the division of assets that is governed
    by the law of the parties domicile. The trial judge determined that it is the
    law of the province of Ontario that controls the legal significance of the
    post-ceremony events. While not a valid marriage under Tennessee law, the
    parties lived as a married couple in Ontario. According to the trial judge, whether
    subsequent events created a valid marriage should therefore be determined by
    Ontario law.

[13]

The trial judge considered and applied the following definition
    of spouse under ss. 1(1)(a) and (b) of the
FLA
:

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.

[14]

He concluded that s. 1(1)(b) did not apply because the
    marriage was not voidable or void, given that there was no question that the
    parties had the legal capacity to enter into a marriage. In determining whether
    the parties were married to each other and therefore spouses under s.
    1(1)(a), he looked at the criteria under s. 31 of the
Marriage Act
, which
    provides 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.

[15]

The trial judge concluded that the criteria for a deemed valid
    marriage under s. 31 of the
Marriage Act
had been met for the
    following reasons:

1.

The parties marriage was solemnized in good
    faith because there was no evidence of bad faith and both parties wanted to
    marry and did so in a religious ceremony.

2.

The parties must have intended to follow the
Marriage
    Act
because the respondent wanted to be legally married and therefore
    intended to comply with the law. There was no intentional or deliberate
    non-compliance or indifference as to compliance.

3.

There was no evidence that either party was
    under a legal disqualification to contract marriage.

4.

The parties lived together and cohabited as a
    married couple after the religious ceremony at the mosque.

[16]

As a result, the trial judge determined that the Tennessee religious
    ceremony was deemed to be a valid marriage pursuant to s. 31 of the
Marriage
    Act
and the parties were therefore spouses within the meaning of s.
    1(1)(a) of the
FLA
.
As such, they were able to access the
    property division, equalization, and security provisions of Parts I and II of
    that Act.

Issues

[17]

I would summarize the appellants principal submissions as
    follows:

1.

The trial judge erred in applying s. 31 of the
Marriage Act
to validate a ceremony that took place in, and was formally invalid under the
    laws of, Tennessee. The law of the jurisdiction where the marriage was
    performed (
lex loci celebrationis
) is the sole consideration in
    determining formal marriage validity. Section 31 of the Act applies only to
    marriages that were solemnized in Ontario and
cannot be imported into
    the law of Tennessee.
Under Tennessee law, the parties
    marriage was invalid and cannot be validated by the application of the Tennessee
    equitable doctrine of marriage by estoppel because the parties knew they had
    not obtained a marriage licence.
If the marriage is invalid in the place
    where it was solemnized, it cannot be a valid marriage anywhere else.

2.

Alternatively, if s. 31 is applicable to
    marriages solemnized outside of Ontario, the trial judge misinterpreted its
    provisions by considering the respondents subjective good faith and intention
    as to the legality of the marriage and compliance with the Act. Section 31 was
    designed to deal with inadvertence, absences, irregularities, or
    insufficiencies in the process and was not intended to apply to a ceremony that
    totally ignored all formalities of the
Marriage Act
and the process
    itself.
Alspector v. Alspector

(1957), 9 D.L.R. (2d) (Ont. C.A.),
    was rendered prior to the enactment of the
FLA
and has been overtaken
    by this courts approach in
Debora v. Debora

(1999), 167 D.L.R.
    (4th) 759 (Ont. C.A.).

Analysis

Standard of Review

[18]

The issues argued by the appellant involve the
    interpretation of s. 31 of the
Marriage Act
. As such they raise
    questions of law reviewable on a standard of correctness. As I shall explain, in
    my view, the trial judge made no error of law.

(i)

Can s. 31 of the
Marriage
    Act
apply to validate a marriage solemnized outside
    of Ontario?

[19]

I see no error in the trial judges conclusion that s. 31
    of the
Marriage Act
applies to validate the parties formally invalid
    marriage notwithstanding that it was solemnized in Tennessee.

[20]

In my view, the appellants position that s. 31 can only
    apply to marriages solemnized in Ontario represents an overly narrow and
    technical interpretation of s. 31. It undermines and is inconsistent with the
    public policies underlying family law legislation in Ontario that support the presumption
    of the validity of marriages entered into anywhere in good faith where the parties
    have lived as, and held themselves out to be, a married couple.

[21]

The modern approach to statutory interpretation requires
    that, unless ambiguous, the provisions of a statute are to be interpreted in
    accordance with their plain meaning and legislative purpose:
Rizzo &
    Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21. The appellant does
    not submit that s. 31 is ambiguous. Rather, he urges an interpretation that, in
    my view, does not respect the plain meaning of s. 31s provisions or its
    legislative purpose.

[22]

For ease of reference, I reproduce the provisions of s. 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.

[23]

The appellant argues that persons married in Tennessee or
    elsewhere cannot intend to be married under the laws of Ontario but, rather, can
    only intend to be married under the laws of the place where the marriage is
    solemnized or performed.

[24]

However, if s. 31 of the Act applied only to marriages
    performed in Ontario, the legislature could have easily included that
    requirement. Instead, such limitation is absent from s. 31. It is one among several
    provisions in the
Marriage Act
that apply to persons, like the parties
    here, who were married outside of Ontario but are domiciled in Ontario when the
    Act is invoked. For example, s. 1(2) provides that: This Act does not apply in
    respect of any ceremony or form of marriage gone through by two persons who are
    married to each other by a marriage previously solemnized in accordance with
    this Act
or recognized as valid in Ontario
 (emphasis added). And s.
    8(3) specifically refers to the dissolution or annulment of a previous marriage
    elsewhere than in Canada with respect to the prohibition of the issuance of a
    licence in certain circumstances.

[25]

This interpretation is also consistent with well-established
    conflict of law principles. As the appellant correctly points out, the formal
    validity of a marriage is determined by the law of the jurisdiction where the
    marriage is celebrated, the 
lex loci celebrationis
:
Berthiaume
    v. Dastous
, [1930] 1 D.L.R. 849 (P.C.), at pp. 851, 853;
Brook v.
    Brook
(1861), 11 E.R. 703 (H.L.); Janet Walker,
Castel & Walker: Canadian
    Conflict of Laws
, loose-leaf (ReI. 82-9/2020), 6th ed. (Markham, Ont.:
    LexisNexis Butterworths, 2005) vol. 2, at para. 16-2. As noted by the author in
Canadian Conflict of Laws
, at para. 16-2:

The
lex loci celebrationis
governs the formalities surrounding the marriage ceremony, including such
    questions as whether a religious ceremony is necessary or sufficient; whether a
    marriage may be constituted
per verba de praesenti
,
    that is, by an informal exchange of consent; whether a marriage may be
    celebrated by proxy; or simply
by
the couple or one of
    them or someone authorized by them reporting the marriage to the appropriate
    governmental body. [Footnotes omitted.]

[26]

However, whether a marriage is formally invalid under the
lex
    loci celebrationis
is a different question from whether it can be
deemed
legally valid.

[27]

Section 31 contemplates marriages that are otherwise not
    legally valid until the provision deems them to be so. It is the law of the
    jurisdiction where the parties reside that applies to the question of whether
    the marriage will be legally validated notwithstanding its formal
    irregularities. Julien D. Payne and Marilyn A. Payne explain in
Canadian
    Family Law
, 8th ed. (Toronto: Irwin Law, 2020), at p. 16: Although
    based on a contract between the parties, marriage is a status to which the
    state attaches its own conditions as to its creation, duration, and consequences
    (footnote omitted). As this court reiterated in
Alspector
,

at pp.
    685-86, a competent court has jurisdiction to define matrimonial status and, in
    particular, to declare a marriage valid.

[28]

In the same way, the appellants reliance on s. 4 of the
Marriage
    Act
is in my view misplaced. Section 4 stipulates that [n]o marriage may
    be solemnized except under the authority of a licence issued in accordance with
    this Act or the publication of banns. However, these provisions do not limit
    the use of the word solemnized in s. 31 to marriages performed in Ontario.
    Rather, s. 4 refers to the question of formal validity. While they must be read
    together, sections 4 and 31 serve different purposes.

[29]

The legal validation of marriages also reflects the
    long-standing societal importance of marriage that, in the face of a dispute
    between the parties, favours deeming the marriage valid. As the Supreme Court
    stated in
Porteous v. Dorn et al.
, [1975] 2 S.C.R. 37, at pp. 40-41:

If persons live together as man and wife for such length of
    time and in such circumstances as to have acquired local repute as married a
    presumption that they are legally married may arise, which can only be
    displaced by cogent evidence to the contrary.

[30]

See also
Powell v. Cockburn
, [1977] 2 S.C.R. 218.

[31]

Section 31 is a validation clause that protects a marriage
    contracted in good faith from invalidity on the ground of formal
    irregularities: H.R. Hahlo,
Nullity of Marriage in Canada: With A Sideways
    Glance At Concubinage And Its Legal Consequences
, (Toronto: Butterworth
    & Co. (Canada), 1979), at p. 19. As the authors of
Canadian Family Law
,
    at p. 19, state: Non-compliance with statutorily presented formalities, though
    subject to penalties, does not render the marriage void unless the statute
    expressly or by necessary implication invalidates the marriage (footnote
    omitted): see also
Peppiatt v. Peppiatt
(1916), 30 D.L.R. 1 (Ont.
    C.A.), at pp. 10-12;
Kerr v. Kerr and Ontario (Attorney General)
,
    [1934] S.C.R. 72;
Clause v. Clause

(1956), 5 D.L.R. (2d) 286,
    at pp. 292-93.

[32]

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.

[33]

I also note that section 31 has existed more or less in the
    same form since at least 1896 and the history of validating formerly invalid
    marriages extends back to legislation enacted in the province of Upper Canada:
The
    Marriage Act, 1896
, S.O. 1896, c. 39, s. 29; William Renwick Riddell, The
    Law of Marriage in Upper Canada (1921) 2 Can Historical Rev 226. 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.
    This practical difficulty, along with the strong presumption in favour of the
    regularity and validity of marriage, was observed by Robinson C.J. for the
    Upper Canada Court of Queens Bench in
Breakey v. Breakey

(1846),
    2 U.C.Q.B. 349, at p. 354:

Now I take the principle of law to be, that on
    all questions of pedigree arising in a contest about property, the presumption
    is strong in favour of the regularity and validity of the marriage, especially
    when the parties have lived together as man and wife for twenty or thirty
    years, and have been so reputed till the connection has been dissolved by
    death, and when they have left issue. The presumption is indeed so strong, that
    those who would impeach the validity of the marriage are required to make the alleged
    illegality clearly appear. It would be cruel, as regards the feelings and
    interests of parties, if the law were not in this respect rigid, and the
    hardship in this country would be grievous, where so many thousands of people
    have emigrated from distant countries, and are of that station in life that
    they cannot be supposed always to have preserved or to be able to procure such
    evidence as could satisfy any doubts and cavils in regard to the regularity of
    their marriages.

[34]

As the court concluded in
Smith v. Waghorn
, 2012
    ONSC 496, upon finding the requisite intention to comply for the purposes of
    applying s. 31 of the
Marriage Act
to validate a marriage celebrated
    in Florida, absent evidence to the contrary,[i]t would be unusual that a
    person following the laws of one state intended to be married within that
    jurisdiction but not married in another jurisdiction: at para. 42.

[35]

As a result, I would not give effect to this argument.

[36]

In my view, s. 31 of the
Marriage Act
can apply to
    validate a marriage solemnized outside of Ontario.

(ii)

If s.
31
applies to marriages solemnized
    outside of Ontario,

can a court
    consider the subjective intention of the parties to comply with the Act
?

[37]

The appellant submits that even if s. 31 of the
Marriage
    Act
can apply to marriages solemnized outside of Ontario, it was an error
    to consider the parties subjective good faith and intention. For the
    appellant, the words, intended to be in compliance with this Act, mean that
    the parties
objectively
intended to be in compliance with the
Marriage
    Act
of Ontario and that the objective nature of the parties intention
    requires them to take objectively reasonable steps to formally comply with the
    Act. The consideration of either partys
subjective
intentions is
    irrelevant and would lead to confusion and uncertainty. The trial judge
    therefore erred in taking into account the respondents subjective intentions
    to marry the appellant. Moreover, the appellant argues, the applicable deeming
    provision of s. 31 in this case relieves against only technical
    irregularities and insufficiencies with respect to the issue of the marriage
    licence
[2]
; the failure to obtain a marriage licence
    is not a technical irregularity or insufficiency.

[38]

Here too, in my view, the appellants approach is overly strict,
    does not represent a plain reading of s. 31, and undermines its purpose.

[39]

I reiterate the well-established public policy discussed
    above that favours marriage as a social institution, which, in my view, is
    reflected in s. 31 of the
Marriage Act
.

[40]

I also disagree with the appellants 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.

[41]

Moreover, the curative provisions of s. 31 are not limited,
    as the appellant suggests, to situations involving mere irregularity or
    insufficiency in the issue of a marriage licence. The appellants proposed
    interpretation omits the express curative provision in s. 31 for the absence
    of the issue of a marriage licence
[3]
, which is what occurred here.

[42]

That said, I agree with the appellants position that
    intended to be in compliance with this Act requires something more than the
    condition that the parties have solemnized their marriage in good faith.
    Otherwise, there would be no need to include the requirement of intended to be
    in compliance in addition to the requirement that the marriage be solemnized
    in good faith. As the author of
Nullity of Marriage
states at p. 20:

While failure to comply with prescribed
    statutory formalities does not, as a rule, invalidate a marriage  at least
    where the parties acted in good faith  there must always be it is submitted,
    something which, at least in appearance, amounts to a proper marriage ceremony.
    An informal consent marriage, even if it was contracted by the parties in good
    faith and was followed by their cohabitation as man and wife, can never qualify
    as a marriage. It is a non-marriage. [Footnote omitted.]

[43]

See also:
Dutch v. Dutch
(1977), 1 R.F.L. (2d) 177
    (Ont. Co. Ct.), at pp. 187-89.

[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 non-deliberate, and where
    the parties subsequent behaviour confirms that they considered themselves, from
    the time of the marriage ceremony, to have become legally married.

[45]

As the following review of the relevant case law in Ontario
    demonstrates, this is the approach that has been followed uniformly for more
    than fifty years by the courts that have considered the intention to comply provisions
    of s. 31 and its predecessors. I disagree with the appellants submission that
    there is any conflict in the approach taken by courts or that this approach has
    led to divergent or unpredictable results.

[46]

I begin with a review of
Alspector
and
Debora
.
    In my view,
Alspector
has not been overturned by
Debora
;
    these cases can be read consistently with each other. The key factual distinction
    between them is that in
Debora
, unlike in
Alspector
, there
    was a finding of deliberate non-compliance with Ontario law.

[47]

Alspector
involved
    circumstances where the parties were married in Ontario by a cantor in a Jewish
    religious ceremony without a marriage licence. The husband made inquiries as to
    whether a marriage licence was required and believed it was not because the
    parties intended to live in Israel. The wife relied on the husbands advice
    that a marriage licence was not required. This court accepted the wifes
    subjective intention to comply with the law of Ontario to enter into a formally
    valid marriage and held that her subjective intention was sufficient to satisfy
    the intention to comply provision of the predecessor to s. 31 of the
Marriage
    Act
.

[48]

In comparison,
Debora
involved materially
    different factual circumstances and therefore is distinguishable from
Alspector
and the present case. The parties participated in a religious ceremony in 1987
    and later went through a civil ceremony in 1994. The court interpreted
    marriage in the definition of spouse under s. 1(1) of the
FLA
as
    meaning a marriage under the
Marriage Act
. This court held that while
    the 1994 ceremony was valid, the 1987 religious ceremony did not create a
    formally valid marriage because the parties had deliberately not complied with
    the law of Ontario. Although aware of the requirement, they intentionally did not
    register their marriage following the 1987 ceremony so that the husband could
    continue to receive a widowers pension. This court focused its analysis on the
    meaning of good faith on the part of the person asserting a right under s.
    1(1)(b) of the
FLA
and determined, citing
Harris v. Godkewitsch
(1983), 41 O.R. (2d) 779 (Ont. Prov. Ct.), at p. 781, that spouse under s. 1
    should not be extended to cover a person who participated in a ceremony in
    Ontario that was clearly and deliberately outside the
Marriage Act
,
    notwithstanding the marriage was solemnized in good faith:
Debora
,
    at pp. 762-63.

[49]

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.

[50]

I start with the cases where the courts declined to
    validate marriages under s. 31 of the
Marriage Act
.

[51]

In
Harris
, the application judge found that the
    applicant chose not to be married for the purposes of Ontario law but,
    instead, to be committed personally and spiritually through the Jewish
    ceremony because of a desire not to be in a position to make any property claims
    against the respondent: at p. 780. The marriage was not deemed valid.

[52]

Kanafani v. Abdalla
,
    2010 ONSC 3651, 89 R.F.L. (6th) 189, is similarly distinguishable from
Alspector
and the present case on its facts. In 2004, the parties were married in Toronto
    under Sharia law by an Islamic religious leader. They never obtained a marriage
    licence or registered the marriage. They subsequently attended before a judge
    in the United Arab Emirates (UAE). The focus of the motion for summary
    judgement was on the subsequent UAE ceremony, which the wife asserted resulted
    in a valid civil marriage. The motion judge found there was no intention to
    comply with Ontario law and concluded that on the undisputed facts the
    religious marriage was not valid under the
Marriage Act
. She held that
    the certificate issued by the judge in the UAE did not suggest a new valid
    marriage ceremony had occurred. Her conclusion was supported by the wifes contradictory
    assertions about whether the UAE ceremony created a new marriage or merely
    registered the Toronto marriage.

[53]

Chhokar v. Bains
,
    2012 ONSC 6602, involved a finding of deliberate non‑compliance. The
    parties had participated in a Sikh religious marriage ceremony in Ontario. The
    trial judge accepted the respondent husbands evidence that the applicant wife,
    prior to the religious marriage ceremony, did not want to obtain a marriage
    licence. He concluded that she knew of the need for a marriage licence and did
    not intend to comply with the laws of Ontario. As a result, he declined to
    validate the marriage under s. 31 of the
Marriage Act
.

[54]

In
Aden v. Mohamud
, 2019 ONSC 6493, the court
    declined to deem the marriage valid pursuant to s. 31 of the
Marriage Act
because the parties did not intend to comply with the law of Ontario. The
    parties participated in a religious marriage ceremony in 2007 without
    registering the marriage. The husband later married another woman in 2014,
    which was registered in Ontario. The court held that this arrangement was
    inconsistent with a legal marriage in Ontario such that the marriage was not
    valid pursuant to s. 31 of the
Marriage Act
. The court, at para. 22,
    rejected the wifes stated belief that she assumed her marriage was legal on
    the basis that had she truly believed that she was married according to the law
    of Ontario, her marriage would have ended in 2014 when her husband informed her
    of his intent to have more than one wife.

[55]

Moza and Thusu (Re)
,
    2021 ONSC 1552, 54 R.F.L. (8th) 132, is the most recent reported decision to
    consider s. 31 of the
Marriage Act
. The application judge refused to
    validate the parties marriage celebrated in a religious ceremony in India
    because she was not satisfied that there was evidence of the formal
    requirements under Indian law nor of an intention to comply with Ontario law.

[56]

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.

[57]

The court in
Friedman v. Smookler
, [1964] 1 O.R. 577 (Ont. S.C.),
deemed a
    marriage to be valid because the parties intended to comply with the Act.
    Following the ceremony, the parties had lived together as man and wife.
    Although they did not obtain a licence and the celebrant was not an authorized
    marriage officer, the court held that it is enough that the persons to the
    marriage act under a belief that a religious ceremony will be recognized as a
    legal marriage.

[58]

Like the present case, in
Ayoub v. Osman
, 2006
    CanLII 9309 (Ont. S.C.), the court considered whether the parties formal
    religious marriage ceremony officiated by an Imam in Ontario produced a
    formally valid marriage where no marriage licence had been obtained and the
    marriage was not registered. The court validated the marriage under s. 31 of
    the
Marriage Act
because the parties considered themselves formally
    married to one another, lived together as husband and wife for almost 12 years,
    and had two children.

[59]

The parties subjective intention to marry one
    another was also an important factor in the courts decision to validate the
    marriage in
Smith
.

In
    Florida, the parties had participated in a marriage ceremony before a duly
    authorized officer and obtained a marriage licence. However, they had misrepresented
    the husbands name to the Florida court and marital officials. The application
    judge applied s. 31 to validate the marriage. He concluded that although the
    applicant knew that the respondent had misrepresented his name for employment
    purposes, she did not understand that this misrepresentation would invalidate
    their marriage. He found on the evidence that the parties intended to enter
    into a legally binding marriage

and thereafter to be so considered in
    accordance with the laws of all jurisdictions, including the Province of
    Ontario: at para. 42. This finding was fact-specific. After the marriage
    ceremony, the parties cohabited, lived together, and repeatedly represented to
    the public and their families that they were married to one another.

[60]

In
Isse v. Said
, 2012 ONSC 1829, 19 R.F.L. (7th)
    413, the parties participated in an Islamic wedding ceremony in Ontario
    according to Sharia law. No marriage licence was issued and the marriage was
    not registered under the law of Ontario. The court determined that the marriage
    was valid under s. 31 of the
Marriage Act
because the ceremony was
    solemnized in good faith and the parties intended to comply with the
Marriage
    Act
. Importantly, the court accepted that the wife assumed that the
    religious ceremony legalized the marriage and did not know that any further
    steps were required.

[61]

Jama v. Basdeo
, 2020 ONSC 2922, is also factually similar to the present
    case. The parties participated in a traditional Islamic wedding ceremony and
    intended to be legally married. While there were witnesses to the ceremony, the
    parties did not obtain a marriage licence and there was no evidence that the
    officiant was authorized to solemnize marriages. The trial judge concluded that
    both parties intended to comply with the law to enter into a valid marriage. In
    particular, she accepted the wifes evidence that she was not aware that a
    marriage licence was required in order to make the marriage legal and that had
    she known, she would have obtained a licence. As a result, the trial judge
    validated the marriage under s. 31 of the
Marriage Act.

Application of the
law to the facts
    of this case

[62]

Each of the decisions that I have just reviewed turned on
    the particular factual circumstances of each case. In each, it was crucial whether
    there was evidence of an intention to comply or, conversely, of deliberate
    non-compliance with the formal requirements of the law in Ontario
[4]
.

[63]

Here, the parties believed that the marriage ceremony
    created a binding marriage in conformity with the laws of Tennessee and Ontario,
    and their subsequent conduct shows they acted on that belief. That belief, as
    the trial judge found, correctly in my view, indicated an intention to enter
    into a valid, legally recognized marriage. His finding was grounded firmly in
    the evidence. Unlike in some of the cases reviewed above, there was no evidence
    in the present case that either party intended not to be legally married or was
    deliberately not complying with the law of Ontario. Other than the failure to
    obtain a marriage licence, the parties complied with all the other statutory
    requirements for a valid marriage under Tennessee or Ontario law. They were
    married by an Imam. There were witnesses present at the ceremony. They had the
    capacity to enter into the marriage and consented to do so. Most important,
    neither of them knew that a marriage licence was required to create a formally
    valid marriage. In other words, they believed that they had entered 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.

[64]

There is also no question that the parties complied with
    all of the other provisions of s. 31 of the
Marriage Act
: they entered
    into their marriage in good faith; they were married in a religious ceremony in
    a mosque by an Imam which was consistent with their religious faith at the time
    of the marriage; they had the capacity to enter into marriage and consented to
    do so; and they lived as a married couple following the religious ceremony: the
    respondent wore a ring and the parties indicated they were married as their
    status on various legal documents, including income tax returns, hospital
    records, birth records, and mortgage documents.

[65]

As a result, I see no error in the trial judges conclusion
    that the provisions of s. 31 of the
Marriage Act
were met and that the
    marriage was deemed valid. The onus is on the appellant to rebut the
    presumption of a valid marriage:
Powell
, at p. 225. In my view, he has
    failed to do so.

[66]

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.

Disposition

[67]

For these reasons, I would dismiss the appeal.

[68]

If the parties cannot agree on the disposition of costs, I would
    permit them to submit brief written argument of no more than two pages, plus a
    bill of costs, within ten days of the release of these reasons.

Released: September 24, 2021 D.B.

L.B. Roberts J.A.

I agree. David Brown
    J.A.

I agree. B. Zarnett
    J.A.





[1]

Now
    called decision-making responsibility and parenting time.



[2]
The
    curative provisions of s. 31 also may relieve against the circumstance where
    the person who solemnized the marriage was not authorized to solemnize
    marriages; however, this was not an issue raised on appeal.



[3]

The French language version of s. 31 also stipulates clearly that
    its curative provisions apply in the absence of a licence, and not merely in
    the circumstance of an irregularly issued licence, as follows: « Le
    mariage est valable, même si le célébrant nétait pas autorisé à le célébrer et
même sil ny a pas eu
de publication de bans ni
de délivrance de
    licence
,
ou sil sest glissé quelque irrégularité
dans cette
    publication ou
cette délivrance
, quand les parties
    à la célébration du mariage étaient de bonne foi, désiraient se conformer à la
    présente loi, nétaient sous le coup daucun empêchement légal de contracter
    mariage et vivent ensemble et cohabitent comme couple marié depuis le mariage. »
[Emphasis added].



[4]
The
    appellant also relied on three judgments of courts outside of Ontario. None of
    them is binding on this court. Furthermore, they are of little assistance in
    interpreting Ontario statutes and are factually distinct. For example, in
Bussey v. Dwyer
, 2017 NLCA 68, the case
    turned on the parties deliberate choice not to enter into a legal marriage but
    exchange rings in a peculiar ceremony at their home
without an officiant,
    a witnesses or a licence, and where they read out a bible verse to each other
    used at weddings.


