Day: July 6, 2010

A Muslim bride of Pakistan origin signing the ...Image via Wikipedia

Kanafani v. Abdalla is a decision of Justice Spies of the Superior Court.  In that case, Spies, J. found a sharia marriage performed in Ontario was not valid because it did not meet the requirements of the Marriage Act.

Ontario courts will recognize a foreign marriage if it is valid under the law of the place where it was performed.  Thus, a ceremony based on sharia law, if valid in the jurisdiction where it was performed, will be recognized by Ontario as valid.

However, an Ontario marriage must meet the requirements of the Marriage Act in order to be valid here.  A ceremony based on sharia law, if performed in Ontario, will not be recognized as valid unless it meets the requirements of the Marriage Act (such as a marriage licence and the registration of the marriage).

In Kanafani, the parties married in Toronto in an Islamic religious ceremony under sharia law.  Both knew that their marriage was purely religious.  They did not apply for a marriage licence from the Province.

Sometime after their sharia law marriage, the couple visited Abudhabi, where they went before a local judge and registered their sharia law marriage.  The marriage was recognized in Abudhabi as valid.

Justice Spies found that the parties’ sharia marriage was not valid in Ontario.

Part I of the Family Law Act defines a “spouse” as:

“spouse” means either of two persons, who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of the person relying on this clause to assert any right.

Section 4 of the Marriage Act provides:

“[n]o marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of bans.”  A “licence” is a marriage licence issued under the Marriage Act

Justice Spies found that the parties registration of the Toronto religious marriage in Abudhabi was irrelevant.  She found that Abudhabi’s recognition of the parties’ sharia marriage was irrelevant, as well.

In reviewing the case law authority, Justice Spies found that:

…..”marriage” in the definition of spouse ….means…. a marriage under the Marriage Act and ….section 1(1)(a) refers to “persons who are married, which can only refer to persons who are considered married under the laws of Ontario” .

With respect to section 1(1)(b), …. a “marriage that is void or voidable” refers to a statutory marriage under the Marriage Act which may, in particular circumstances, be void or voidable and that these words have no relevance to a religious ceremony that is not a statutory marriage….

Section 1(1)(b) also provides that the parties must have entered into a marriage that is void or voidable in good faith.  …good faith refers to “an intention to comply with Ontario law” which means an intention to comply with the requirements of the Marriage Act.  The court also confirmed that “good faith” does not refer to the state of mind of a party regarding the legality of the marriage. (at para. 7)

After finding that the parties were not validly married, Justice Spies dismissed the wife’s claim for an equalization of net family property.  The wife also lost her right to occupy the “matrimonial home” — for which only married spouses can claim a right to occupy.

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