With March Break on the go for many Ontario students this week, we were reminded of the popularity of destination weddings and the likelihood that they may become popular once again as Canada continues to loosen its COVID-19 restrictions. Marriages between Canadians outside of Canada can take many forms, and while we often think of beachside ceremonies, it’s also common for people to have traditional or religious ceremonies in the United States or further abroad. For those who marry outside of Canada, it’s important to understand the laws of where they get married. An interesting case that was recently heard by the Court of Appeal for Ontario, Lalonde v. Agha, shows that even if a marriage that took place outside of Canada was not legal in and of itself, the parties, who ultimately separated, can still be considered married under Canadian law for the purposes of division of property.
A religious marriage ceremony in Tennessee
The parties involved participated in a religious marriage ceremony in Memphis, Tennessee in August 1998. The husband had been living in Tennessee, and invited the wife, who was living in Canada, to get married at the mosque he attended.
Following the marriage, the couple was provided with a certificate, stating they “have 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.”
However, this was the extent of the registration of the marriage. A marriage license from Tennessee was not obtained, nor was one obtained when they moved to Canada. The marriage was also not registered in either the United States or Canada.
When they eventually separated in 2016, both parties recognized that they were common-law spouses and that the wife was entitled to spousal support and child support. However, the husband said that their marriage should be considered as registered in Tennessee since both parties intended to marry there. This would have an impact, he said, on the wife’s entitlement to any property they shared.
Determining where and if the parties were married
There was no disagreement that the parties intended to be married in Tennessee, and experts provided by both parties agreed that marriage in Tennessee is governed by statute and that common law is not recognized in the state (unlike in Ontario). The experts also agreed that exceptional circumstances provide for marriages that are not registered to still be valid in Tennessee, notably the equitable doctrine of marriage by estoppel.
At the original trial, the judge held that the religious ceremony the parties participated in did not create a valid marriage under Tennessee law since no marriage license was obtained. Additionally, the trial judge found that it was unnecessary to determine if the doctrine of marriage by estoppel should be applied since Ontario law was able to validate the Tennessee marriage.
Referring to the province’s Family Law Act, the judge stated that “spouse” can include people who are married to one another, but can also include people 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.” In this case, the FLA could not provide guidance since there was no marriage to void, so the judge turned then to the Marriage Act, which states,
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 license.
Using this approach, the judge concluded that when in Tennessee, the parties had met the criteria for a marriage under the Marriage Act for four 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.
Can Ontario laws validate a marriage that was not considered valid in Tennessee?
The husband stated that if the legislature had intended for the Marriage Act to validate marriages held outside of Ontario, it would have specifically stated as much in the law. The court stated that several provisions in the Marriage Act apply to people married outside of Ontario. The court also leaned on a 1974 decision from the Supreme Court of Canada, which favours deeming marriages as valid. In that decision, the court wrote,
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.
In dismissing the appeal, the court also commented that the relationship between the parties was that of a married couple. They both believed they were married, lived together as a married couple, and presented themselves as married. The court found it would be an injustice to the wife to not recognize their marriage as valid.
The family law lawyers at Howie Johnson Barristers & Solicitors can assist you with family law issues
Our experienced team of family law lawyers routinely helps clients on matters related to, division of property, spousal support and child support. To speak with a member of our team, please reach us online or call us at 519-973-1500. We look forward to seeing how we can help you and your family.