Matthews v Mutiso, 2014 ONSC 4010
This case addresses the issue of annulment in the context of the formal validity of a marriage.
The parties were married in London, Ontario on October 19, 2012 after having met in person for the first time on October 15, 2012. The marriage was witnessed by a couple who were friends of the Applicant. By October 24, 2012, the husband had returned to the United Arab Emirates. The parties visited each other on two other separate occasions, from December 14, 2012 to December 26, 2012, and from March 18, 2013 to March 26, 2013. Thereafter, the parties separated in or about June 6, 2013, according to the wife. However, soon after separation, the Applicant became aware, and received confirmation thereafter, that the person who performed the marriage ceremony was not authorized to do so under the Marriage Act.
Section 31 of the Marriage Act provides:
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 of the issue of the licence.
The Court then cited Isse v Said, 2012 ONSC 1829, which provided four necessary elements for section 31 of the Marriage Act to apply. The four necessary elements as provided by the Court in Isse v Said were:
- The marriage must have been solemnized in good faith;
- The marriage must have been intended to be in compliance with the Marriage Act;
- Neither party was under a legal disqualification to contract marriage; and
- The parties must have lived together and cohabited as a married couple after solemnization.
The Court found that this case hinged on the fourth element, whether the parties lived together and cohabited as a married couple after solemnization, as "the evidence in the present case establishes compliance with the first three elements" (paragraph 34).
In Upadyhaha v Sehgal,  OJ No 3508 (Ont. SCJ), MacKenzie J. provided an analysis of the fourth required element under section 31 of the Marriage Act at paragraph 30:
I acknowledge that there may be in law a "living together" and "cohabitation as man and wife" between the parties where they are prevented from living together in the sense of following the ordinary routines of domestic life under the same roof and household due to reasons beyond their respective controls. There comes to mind examples such as military hostilities and prolonged illness. Whatever the reason or motive of these two parties...I am unable to find as a fact that there was a living together and cohabitation as contemplated by section 31 of the Act.
The Court in this case held that in order "to find whether this element is satisfied, it is necessary to examine the conduct of the parties in context of any unique facts relevant to each case" (paragraph 40). The Court considered that the parties considered themselves to be married, lived together as a married couple for three distinct periods of time, planned to have a child, and that there were practical limitations, including visitor visa requirements, which prevent the parties from moving into together (paragraphs 42-45).
Based on the above facts, the Court found that "the parties did live together and cohabit as a married couple subsequent to their marriage within the meaning of s. 31 of the Marriage Act" (paragraph 46). As such, the Court dismissed the application and found that the "curative provisions contained in s. 31 of the Marriage Act apply and that the marriage between the Applicant and the Respondent is a valid marriage" (paragraph 51).