Tie up Loose Ends when Tying the Knot: Destination Weddings, Foreign Marriages & Family Law in Ontario

• 
  Aaron Ender
  Lawyer

Whether it’s on a white sand beach in the Caribbean or a villa nestled in the hills of a European winery, a destination wedding provides a beautiful backdrop for an adventurous couple or a family looking to reconnect with their roots. However, a romantic getaway without proper documentation can prove difficult for families in the future.

Foreign Marriages

Unless a couple obtains a marriage license in Canada before they set off for their destination wedding, their marriage may constitute a foreign marriage. For example, if two Canadian citizens chose to host a destination wedding at a resort in Jamaica and obtained a Jamaican marriage license, their marriage (in Canada) would be a foreign marriage.

In Canada, the law of the country where the marriage occurred governs whether the marriage is valid. Generally, an international marriage will be valid in Canada as long as the marriage is legal according to the rules where the wedding takes place and complies with Canadian federal law.

Proving a Foreign Marriage

A marriage certificate is normally required to obtain a divorce in Ontario. The absence of proof of a marriage can become an impediment to obtaining a divorce order.

Section 31 of Ontario’s Marriage Act[1] provides a “good faith” exception to the formal requirements of a valid marriage. This can validate a marriage performed in another jurisdiction, and can apply where there is no marriage licence or certificate.[2]

The four preconditions of the application of s. 31 of the Marriage Act are:

1. The marriage must be solemnized in good faith
2. The parties must have intended the ceremony 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 cohabitated as a married couple after solemnization[3]

Using the “Good Faith” Exception in Foreign Marriages

In Lalonde v. Agha,[4] the parties were married in Tennessee in a mosque before witnesses, and considered themselves legally married, though they failed to obtain a marriage license or register their marriage. When they separated in Ontario, one party attempted to claim that they were never legally married. However, both the trial court and the Ontario Court of Appeal rejected that argument, using the “good faith” exception in the Marriage Act to find that they were married for the purposes of Ontario law.[5]

Similarly, in Jama v. Basedo,[6] the parties had a traditional Islamic ceremony but did not obtain a marriage licence. However, the ceremony was performed was an imam who was not registered as a person authorized to solemnize marriages. The parties cohabitated and held themselves out as a married couple after the ceremony, and thus the court deemed their marriage to be valid per s. 31 of the Marriage Act.

Section 31 of the Marriage Act should not be considered as an alternative to taking the necessary steps to have a foreign marriage registered in the jurisdiction where it was celebrated. In Moza v. Thusu,^[7] the parties celebrated a ceremony in India before Ms. Moza returned to Ontario and Mr. Thusu returned to the United Kingdom, largely motivated by impending travel restrictions due to COVID-19. There was no evidence as to whether the parties complied with the formal requirements of the laws of India for their marriage to be properly registered nor was there any evidence to suggest the parties intended to comply with Ontario’s Marriage Act. The court did not validate the parties’ marriage, and suggested that it was simply more convenient for the parties to seek a declaration that their marriage is valid from the Ontario Superior Court, instead of having taken the necessary steps to properly register their marriage in India.[8]

Paperwork is Paramount

Destination weddings or foreign marriages without proper documentation are uncertain, and can create problems for families. However, steps can be taken to reduce uncertainty around foreign marriages. Maintaining proper documentation of a foreign marriage, specifically a marriage certificate, can help to eliminate uncertainty. Further, it might be worth considering obtaining a Canadian marriage licence in advance of a destination wedding or foreign marriage to ensure peace of mind for a couple.

Questions about foreign marriages? Planning a destination wedding? Contact McKenzie Lake’s experienced Family Law Team, who are happy to address any questions or concerns.

This article was written by Family Lawyer Aaron Ender and Articling Student Olivia Pomajba.

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[1] Marriage Act, R.S.O. 1990, c. M.3

[2] Lalonde v. Agha, 2021 ONCA 651

[3] Isse v. Said, 2012 ONSC 1829

[4] Supra note 2

[5] Supra note 2

[6] Jama v. Basdeo, 2020 ONSC 2922

[7] Moza and Thusu, 2021 ONSC 1552

[8] Ibid. at para 8-10