Skip to Content
Call to Schedule a Free Consultation* 905-581-7222
Firm logo


This case is regarding a father’s request for a declaration stating that he was not married to the mother. Additionally, he seeks a declaration that that the property he owns solely is not considered a matrimonial home, thereby not subject to equalization. Furthermore, he is pursuing an order for the wife to vacate the home. If the wife fails to comply, he requests a writ of possession be granted in his favor.

According to the mother, they were married in December 2004 through a religious ceremony at their church. At the time of the ceremony, they were cohabiting, and she was pregnant with their first child.

However, it is important to note that the husband was still legally married to another woman until August 2005, when their divorce was finalized.


  1. Whether the father's claim that he was not married to the mother is valid and can be legally established.
  2. Whether the property owned solely by the father can be deemed a matrimonial home, subject to equalization, or if it falls outside the scope of marital assets.
  3. Whether the court can issue an order for the wife to vacate the home based on the father's request.


Is the Marriage Valid?

Per s.31 of the Marriage Act R.S.O. 1990:

  • 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.

Based on the information provided, the court found that the marriage between the father and the mother was not valid. Although the mother argued that the marriage should be deemed valid because both parties entered into it in good faith, the court determined that Section 31 of the Marriage Act R.S.O. 1990 did not apply in this case. The court concluded that the marriage was never valid because the father was previously married and therefore disqualified from entering a marriage with the mother. As a result, the parties were declared not married.

Was the home the parties resided in the matrimonial home?

Regarding the property in question, the court declared that it was not a matrimonial home. Since the property was registered solely in the father's name and the marriage was deemed invalid, the property was not subject to equalization as a matrimonial asset.

Should the Order be granted for the wife to vacate the property?

The husband, being the sole registered owner of the property, sought an order for the wife to vacate the premises.

In the case of Abulazia v El Zahabi 2022 ONSC 2591, the court examined similar situations where a common-law spouse requested the non-owner spouse to leave the property. In such cases, constructive trust claims were made based on the contributions made by the non-owner spouse

Conflicting evidence arose regarding the financial contributions each party made towards the property. The wife presented bank statements indicating her monthly mortgage payments of $580.98 since October 2010, while the husband disputed her claims of any contributions.

Given that the wife did not assert a claim for an interest in the property through the principle of constructive trust, the court decided not to order her immediate eviction from the property. Instead, the court determined that her claim for a property interest should be addressed and resolved during the trial proceedings.

Additionally, the court declined to issue an eviction order based on trespass. The wife had been residing in the property since 2017 and had contributed to some of the associated costs. It was anticipated that the parties would likely live separately once new living arrangements were agreed upon. Therefore, the court found it unnecessary to rule on the issue.