October 15th, 2021
The area and practice of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FamilyMatters is the Lerners Family Law Group’s weekly update on how that change is being made:
Marriage is one of the most important decisions in a person’s life, and offers individuals certain rights and entitlements associated with the family law regime. However, what happens if there is a procedural irregularity with the marriage licence?
This week’s blog addresses this question by examining section 31 of Ontario’s Marriage Act, which states the following:
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.
The Court considers four factors when determining whether a marriage is binding:
- The marriage was solemnized in good faith;
- The marriage was intended to be in compliance with the legislation;
- Neither party was under a legal disqualification to contract marriage; and
- The parties have lived together and cohabited as a married couple after solemnization.
Why is section 31 of the Act important?
If there is a formal irregularity with the marriage licence or the publication of bans, section 31 of the Act deems the marriage to be valid regardless of the irregularity.
- In Smith v. Waghorn, the Husband incorrectly stated his name as “John Muir” instead of “David Wagmore” on his Florida marriage application. The parties moved back to Ontario after the wedding and separated 16 years later.The Court found that the Wife’s knowledge as to the Husband’s misrepresentation of his name to marriage officials “did not extend to her understanding that that misrepresentation would invalidate her marriage” and deemed the marriage to be valid under section 31.
- In Sandomirsky v. Attallah, the Court deemed a marriage to be valid where the ceremony was officiated by a friend with credentials from a “bogus” online course (and therefore was not authorized to perform marriages). Both the parties and the friend mistakenly believed that the friend could officiate the marriage, and since the parties entered into the marriage for valid reasons, the parties were “hereby ordered to live happy together forever”.
Section 31 also arises 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”.
- In Moza and Thusu, the Court declined to deem the parties’ religious marriage in India as valid because the evidence suggested that instead of taking the necessary steps to properly register their marriage in India, it was simply more convenient for the parties to declare their marriage as valid by the Ontario Court. According to the Court, section 31 of the Act “should not be considered an alternative to taking the necessary steps to have a foreign marriage registered in the jurisdiction where it was celebrated.”
A Financial Implication of Section 31 of the Act
The Court of Appeal for Ontario recently grappled with the issue of deeming a marriage to be valid under section 31 of the Act in Lalonde v. Agha, where the appellant Husband argued that the parties were not legally married and therefore, the respondent Wife was not entitled to the equalization of the net family properties.
In this case, the parties were married in a religious ceremony at a mosque in Tennessee. The parties did not comply with the statutory requirements of a valid marriage in Tennessee by failing to register their marriage and obtain a marriage licence. Since the ceremony, the parties had three children, claimed that they were married on various documents (such as tax returns and hospital records), and “lived openly as husband and wife for many years in Windsor, Ontario”.
The trial judge held that the parties’ marriage was deemed valid pursuant to section 31 of the Act, and “[as] such, [the parties] were able to access the property division, equalization, and security provisions of Parts I and II of that Act.”
The trial decision was appealed by the Husband on two main grounds.
Firstly, the Husband argued that the trial judge erred in applying section 31 because that section only applied to marriages solemnized in Ontario (as opposed to other jurisdictions, like Tennessee). In dismissing the appeal, the Court of Appeal held the following:
“[The Husband’s position] 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. […].” 
In citing the Smith v. Waghorn case, the Court of Appeal held that if someone intended to be married in one jurisdiction, it would be unusual they would not be intended to be married in another. The Court found that the parties intended to comply with the Tennessee law governing the solemnization of marriages “that would be recognized in Ontario”.
Secondly, the Husband submitted that if section 31 of the Act did apply to marriages solemnized outside of Ontario, the parties’ subjective intention to comply with the Act should not be considered. Instead, the Husband argued that it is the parties’ objective intention to be in compliance that should be considered.
Once again, Justice Roberts found this approach to be overly strict and clarified that subjective intentions are relevant:
“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.”
The Husband did not meet his onus to rebut the presumption of a valid marriage, and the appeal was dismissed.
In Ontario, spouses that are legally married and common law spouses currently have different rights and entitlements upon separation with respect to property. A marriage that is not valid may possibly affect these rights and entitlements.
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 RSO 1990, c M3 (“Marriage Act”).
 Marriage Act, s 31.
 Sandomirsky v Attallah, 2018 ONSC 5012 (“Sandomirsky”), para 6.
 Smith v Waghorn, 2012 ONSC 496 (“Smith”), para 26.
 Smith, paras 1 and 2.
 Smith, para 43.
 Sandomirsky, paras 3 and 9.
 Sandomirsky, paras 3, 8 and 10.
 Lalonde v Agha, 2021 ONCA 651 (“Lalonde”), para 33.
 Moza and Thusu, 2021 ONSC 1552 (“Moza”), para 9.
 Moza, para 9.
 Lalonde, para 9.
 Lalonde, para 5.
 Lalonde, para 7.
 Lalonde, para 8.
 Lalonde, para 16.
 Lalonde, para 17.
 Lalonde, para 20.
 Lalonde, para 34.
 Lalonde, para 66.
 Lalonde, para 37.
 Lalonde, para 44.
 Lalonde, para 65.