“Marriage is defined by statute. In Ontario, the primary statute is the Marriage Act, R.S.O. 1990, c. M.3. For purposes of this case, the two relevant provisions are:
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- No marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.
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- 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 cohabitated 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 licence.
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Section 31 is a deeming provision in circumstances of non-compliance or imperfect compliance with s. 4 of the Marriage Act. The section has four elements: 1) the marriage must have been solemnized in good faith; 2) the marriage must have been intended to be in compliance with the Marriage Act; 3) neither party was under a legal disqualification to contract marriage; and 4) the parties must have lived together and cohabitated as a married couple after solemnization. Every marriage which satisfies all four elements of s. 31 is deemed to be a valid marriage.
Several courts have considered the good faith and intention to comply elements of s. 31.
In Alspector v. Alspector, 1957 CanLII 93 (ON CA), [1957] O.R. 454 (Ont. C.A.), the Court of Appeal considered a previous deeming provision of the Marriage Act and a Jewish marriage ceremony without a marriage licence. The deeming statute then, s. 33 of the Marriage Act, provided:
Every marriage solemnized in good faith and intended to be in compliance with this Act between persons not under a legal disqualification to contract such marriage shall be deemed a valid marriage so far as respects the civil rights in Ontario of the parties or their issue and in respect of all matters within the jurisdiction of this Legislature, notwithstanding that the clergyman, minister or other person who solemnized the marriage was not duly authorized to solemnize marriage, and notwithstanding any irregularity or insufficiency in the proclamation of intention to intermarry or in the issue of the licence or certificate or notwithstanding the entire absence of both; provided that the parties, after such solemnization, lived together and cohabited as man and wife.
The issue decided there was the meaning of the phrase, “intended to be in compliance with the Act”. To that issue, the Court of Appeal, at para. 46, concluded:
It should be held that 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. All that they would be expected to know is that there would be some law in effect in the Province respecting the solemnization of marriages. The phrase should therefore be interpreted as meaning, – intended to be in compliance with that law.
The Court of Appeal upheld the trial court’s judgment declaring a good and valid marriage despite the lack of a marriage licence. The Court assumed that the wife knew that a licence had not been issued but she did not know that such absence could affect the validity of the marriage and intended that the marriage be in compliance with the law: see Alspector, at para. 49.
Broad J., in Isse v. Said, 2012 ONSC 1829, at para. 26, followed Alspector and found a valid marriage pursuant to s. 31 of the Marriage Act. In that case there was an Islamic wedding ceremony but without a marriage licence: see Isse, at para. 11. The ultimate question was whether the marriage was intended to be in compliance with the Marriage Act: see Isse, at para. 19. The marriage validity was founded on the wife’s “undisputed evidence” that there was an intention to be in compliance with the marriage law: see Isse, at para. 25.
In a very recent case, Peterson J. in Jama v. Basdeo, 2020 ONSC 2922, at para. 40, followed the reasoning in Issa and Alspector and found a valid marriage pursuant to s. 31 of the Marriage Act. This too was an Islamic wedding ceremony without a marriage licence: see Jama, at para. 26. The marriage validity was founded on the finding “that the marriage was solemnized in good faith and was intended by both parties to comply with the law”: see Jama, at para. 32.”