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Section 31 of the Marriage Act can validate marriage ceremonies performed outside of Ontario and purely religious ceremonies where the parties took no steps to obtain a licence or register the marriage

Ontario

,

Canada

In Lalonde v. Agha, 2021 ONCA 651 the parties, both Ontario residents, were married in 1998 in a weekend religious ceremony at a mosque in Memphis, Tennessee. The mosque’s Imam performed the ceremony and signed a marriage certificate. A seal was affixed by the Imam that stated that the parties had been married according to the Quran and Sunnah and were thereby given the rights and privileges of husband and wife according to the Islamic Shariah. However, no marriage license was issued by any government entity. Nor did the parties register the marriage as required by Tennessee law. The parties never knew that they had failed to meet the requirements for a legal marriage.

The parties lived as husband and wife in Windsor, Ontario, until they separated in 2016. For the duration of their marriage, they considered themselves legally married. They had three children together and identified themselves as married on any official documents. It was not until the respondent made an application for equalization of property that the appellant argued that there was no marriage.

Trial Decision

The trial judge ruled that the ceremony in Tennessee did not create a legal marriage since the parties never obtained a marriage license as required by state law. However, the trial judge concluded that as the parties had spent their entire married life in Ontario and since the respondent was seeking division of property in Ontario, Ontario law should be applied to determine whether subsequent events created a valid marriage. The trial judge ruled that the requirements for a deemed valid marriage under s.31 of the Marriage Act, R.S.O. 1990, c. M.3 had been met, finding the parties had intended to be legally married in compliance with Ontario law. The appellant appealed on two principal grounds:

  1. The trial judge erred in applying s.31 of the Marriage Act to validate a ceremony that was invalid under Tennessee law. The appellant contended that s.31 only applied to marriages in Ontario. If a marriage was invalid in the place where it was solemnized, it could not be a valid marriage anywhere else; and
  2. If s.31 was applicable to a marriage outside of Ontario, the trial judge misinterpreted its provisions by considering the subjective intention of the parties.

The Trial Judge Did Not Err in Concluding that s. 31 Applied to Validate a Marriage Outside of Ontario

L.B. Roberts J.A. held that the appellant’s position on s.31 was to narrow and technical and undermined the public policy found in Ontario’s family law legislation that supported the presumption of the validity of marriages entered in good faith and where the parties lived as a married couple and held themselves out to be married (para 20).

L.B. Roberts J.A. ruled that the appellant’s contention that s.31 only applied to marriages performed in Ontario was inconsistent with the text of the section and the rules of statutory interpretation. Section 31 contained no such limitation. (paras 21-24).

Conflict of laws principles supported this interpretation. While it was true that lex loci celebrationis (the law of the jurisdiction where the marriage is celebrated) applied to determine the formal validity of the marriage, this was a different issue than whether a marriage could be deemed valid. The purpose of s.31 was to address marriages that were invalid until the provision deemed them so (paras 24-27).

L.B. Roberts J.A. emphasized that s.31 protected a marriage contracted in good faith from invalidity due to non-compliance with statutory or other legal formalities. If strict compliance with the legal requirements for a marriage license were required to invoke s.31, there would be no reason for s.31 to exist (para 31-32). L.B. Roberts J.A. concluded that “s.31 of the Marriage Act can apply to validate a marriage solemnized outside of Ontario” (para 36).

Trial Judge Did Not Err in Considering the Parties Subjective Intention to Comply With Ontario Law

Once again, L.B. Roberts J.A. dismissed the appellant’s interpretation of s.31 as too strict and inconsistent with the well-established policy that favoured marriage as a social institution. Nothing in the language of s.31 precluded the judge from considering the parties subjective intention (para 38-40).

A marriage was intended to be in compliance with the Marriage Act where there is an intention to create a formally binding marriage. This intention exists where the parties believe they were following the law (para 41).

Caselaw emphasized that the particular facts of each case were crucial. Of critical importance was whether there was evidence of an intention to comply or to deliberately not comply with the legal requirements for a valid marriage in Ontario (para 62).  L.B. Roberts J.A. stated the parties believed that their marriage ceremony would create a legal marriage in Tennessee and Ontario. This indicated an intention to enter a legally valid marriage. There was no question that the parties met all the other requirements of s.31, namely that the marriage was in good faith, they were married in a manner that was consistent with their faith, there was no doubt as to capacity or consent and they had lived together openly as husband and wife (para 63-64).

L.B. Roberts J.A. concluded that the trial judge was correct to consider the subjective intention of the parties and that the marriage should be deemed valid. The parties indented to comply with the law, and it would have been an injustice to deny them legal rights and obligations marriage created. L.B. Roberts J.A. dismissed the Appeal (para 66).

April 14, 2022
Lalonde v. Agha, 2021 ONCA 651