COURT OF APPEAL FOR ONTARIO

CITATION: Lalonde v. Agha, 2021 ONCA 651

DATE: 20210924

DOCKET: C68482

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Sophie Lalonde

Applicant

(Respondent)

and

Samer Agha

Respondent

(Appellant)

Robert J.M. Ballance, for the appellant

Michelle DiCarlo, for the respondent

Heard: June 29, 2021 by video
    conference

On appeal
    from the order of Justice Kirk W. Munroe of the Superior Court of Justice dated
    June 3, 2020, with reasons reported at 2020 ONSC 3486.

L.B. Roberts J.A.:

Overview

[1]

This appeal concerns the scope of s. 31 of Ontarios
Marriage Act
, R.S.O. 1990, c. M.3, which operates to validate a
    formally invalid marriage solemnized in good faith. Specifically, this appeal
    will determine whether s. 31 extends to marriage ceremonies performed outside
    of Ontario and to purely religious ceremonies where the parties took no steps
    to obtain a licence or register the marriage.

[2]

The trial of the issue of the validity of the
    parties marriage arose in the context of the respondent wifes application in
    which she sought custody
[1]
of their children, child and spousal
    support, and equalization of net family property. In his answer, the appellant husband
    claimed there was no legally valid marriage and, as a result, the respondents claim
    for equalization of net family property must be dismissed.

[3]

The appellant appeals from the trial judges
    final order that the parties August 7, 1998 marriage in Memphis, Tennessee is
    deemed to be a valid marriage pursuant to s. 31 of the
Marriage Act
and, therefore, that the parties are spouses under the
Family Law Act
,
    R.S.O. 1990, c. F.3 (the
FLA
), s. 1(1), for the purpose, among
    others, of equalization of net family property. Under s. 1(1) of the
FLA
,
    only legally married spouses, or those who have together entered into a
    marriage that is voidable or void, in good faith on the part of a person
    relying on this clause to assert any right are entitled to equalization of
    property on marriage break down.

[4]

For the reasons that follow, I would dismiss
    the appeal.

Factual background

[5]

On August 7, 1998 the parties participated in
    a religious marriage ceremony at a mosque in Memphis, Tennessee. The appellant,
    a practising Muslim, had attended this mosque for the few months that he
    resided and worked in Tennessee. He had arranged for the ceremony to take place
    during the weekend that the respondent was visiting him from Canada. While the
    appellant subsequently disputed the legal validity of the ceremony for the
    purposes of property equalization, his evidence was that he believed the
    ceremony was necessary to permit the parties to engage in sexual relations, as
    pre-marital sexual relations were considered sinful under Islamic religious law.
    The respondent had converted to Islam about a year before the ceremony.

[6]

The mosques Imam performed the marriage
    ceremony and signed the marriage certificate. Following the marriage ceremony,
    the parties received a marriage certificate with the seal of the mosques Imam.
    The certificate states that they [h]ave been married according to the Quran and
    Sunnah and are hereby given the rights and privileges of husband and wife
    according to the Islamic Shariah.

[7]

No marriage licence was issued by any
    government entity. Other than having the marriage solemnized by the mosques
    Imam and witnessed by other members of the mosque, the parties did not try to ascertain
    or comply with the formal statutory conditions of a legal marriage in
    Tennessee, including the requirements to obtain a marriage licence and register
    the marriage.

[8]

The parties both gave evidence that they did
    not know that they were not complying with Tennessee statutory requirements.
    They did not know they had to obtain a marriage licence or register their
    marriage. Rather, they considered themselves to be legally married. Until their
    separation in 2016, they lived openly as husband and wife for many years in
    Windsor, Ontario, where they had three children and purchased the matrimonial
    home. They recognized themselves as married to each other on government and
    other official documents. On his cross‑examination at trial, the
    appellant testified that even following the parties separation, he thought of
    himself as married to the respondent. However, in response to the respondents
    application for equalization of net family properties, the appellant took the
    position that there was no marriage.

Trial of an issue

[9]

The appellant never disputed that the parties were
    common law spouses, entitling the respondent to spousal and child support. The
    point of contention at the trial was whether the August 7, 1998 religious
    ceremony created a valid marriage under Tennessee or Ontario law for the
    purpose of the respondents entitlement to make property claims under the
FLA
.
    The respondents equalization claim pursuant to s. 5 of the
FLA
relied
    on her meeting the definition of a spouse under s. 1(1) of the
FLA
.

[10]

Both parties called legal expert evidence concerning the conditions
    of a valid marriage in Tennessee and the validity of their marriage ceremony at
    the mosque. Both experts agreed that in Tennessee, marriage is governed by
    statute, common law marriage is not recognized, and the statute,
Tennessee
    Code Annotated
, requires the issuance of a marriage licence prior to any
    religious ceremony. They also agreed that in certain exceptional circumstances,
    the absence of a marriage licence does not invalidate a marriage on public
    policy grounds and that the equitable doctrine of marriage by estoppel could be
    applied to validate a formally invalid marriage.

[11]

The experts disagreed on whether the doctrine of marriage
    by estoppel should be applied in the circumstances of this case. While the
    respondents expert, Martha Child, opined that the doctrine of marriage by
    estoppel should be invoked here, the appellants expert, Jason Ridenour, thought
    that it should not, because even though they were unaware of the requirement, the
    parties knew they had not obtained a Tennessee marriage licence.

[12]

The trial judge found that the religious ceremony did not create
    a valid marriage under Tennessee law because the parties did not obtain a
    marriage licence. However, he determined that it was unnecessary to resolve the
    question as to whether the Tennessee doctrine of marriage by estoppel should be
    applied to validate the parties formally invalid marriage. He concluded that
    Ontario law applied because the parties spent their entire married life in
    Ontario and the respondent was seeking the division of assets that is governed
    by the law of the parties domicile. The trial judge determined that it is the
    law of the province of Ontario that controls the legal significance of the
    post-ceremony events. While not a valid marriage under Tennessee law, the
    parties lived as a married couple in Ontario. According to the trial judge, whether
    subsequent events created a valid marriage should therefore be determined by
    Ontario law.

[13]

The trial judge considered and applied the following definition
    of spouse under ss. 1(1)(a) and (b) of the
FLA
:

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 a person relying on this
    clause to assert any right.

[14]

He concluded that s. 1(1)(b) did not apply because the
    marriage was not voidable or void, given that there was no question that the
    parties had the legal capacity to enter into a marriage. In determining whether
    the parties were married to each other and therefore spouses under s.
    1(1)(a), he looked at the criteria under s. 31 of the
Marriage Act
, which
    provides as follows:

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.

[15]

The trial judge concluded that the criteria for a deemed valid
    marriage under s. 31 of the
Marriage Act
had been met for the
    following reasons:

1.

The parties marriage was solemnized in good
    faith because there was no evidence of bad faith and both parties wanted to
    marry and did so in a religious ceremony.

2.

The parties must have intended to follow the
Marriage
    Act
because the respondent wanted to be legally married and therefore
    intended to comply with the law. There was no intentional or deliberate
    non-compliance or indifference as to compliance.

3.

There was no evidence that either party was
    under a legal disqualification to contract marriage.

4.

The parties lived together and cohabited as a
    married couple after the religious ceremony at the mosque.

[16]

As a result, the trial judge determined that the Tennessee religious
    ceremony was deemed to be a valid marriage pursuant to s. 31 of the
Marriage
    Act
and the parties were therefore spouses within the meaning of s.
    1(1)(a) of the
FLA
.
As such, they were able to access the
    property division, equalization, and security provisions of Parts I and II of
    that Act.

Issues

[17]

I would summarize the appellants principal submissions as
    follows:

1.

The trial judge erred in applying s. 31 of the
Marriage Act
to validate a ceremony that took place in, and was formally invalid under the
    laws of, Tennessee. The law of the jurisdiction where the marriage was
    performed (
lex loci celebrationis
) is the sole consideration in
    determining formal marriage validity. Section 31 of the Act applies only to
    marriages that were solemnized in Ontario and
cannot be imported into
    the law of Tennessee.
Under Tennessee law, the parties
    marriage was invalid and cannot be validated by the application of the Tennessee
    equitable doctrine of marriage by estoppel because the parties knew they had
    not obtained a marriage licence.
If the marriage is invalid in the place
    where it was solemnized, it cannot be a valid marriage anywhere else.

2.

Alternatively, if s. 31 is applicable to
    marriages solemnized outside of Ontario, the trial judge misinterpreted its
    provisions by considering the respondents subjective good faith and intention
    as to the legality of the marriage and compliance with the Act. Section 31 was
    designed to deal with inadvertence, absences, irregularities, or
    insufficiencies in the process and was not intended to apply to a ceremony that
    totally ignored all formalities of the
Marriage Act
and the process
    itself.
Alspector v. Alspector

(1957), 9 D.L.R. (2d) (Ont. C.A.),
    was rendered prior to the enactment of the
FLA
and has been overtaken
    by this courts approach in
Debora v. Debora

(1999), 167 D.L.R.
    (4th) 759 (Ont. C.A.).

Analysis

Standard of Review

[18]

The issues argued by the appellant involve the
    interpretation of s. 31 of the
Marriage Act
. As such they raise
    questions of law reviewable on a standard of correctness. As I shall explain, in
    my view, the trial judge made no error of law.

(i)

Can s. 31 of the
Marriage
    Act
apply to validate a marriage solemnized outside
    of Ontario?

[19]

I see no error in the trial judges conclusion that s. 31
    of the
Marriage Act
applies to validate the parties formally invalid
    marriage notwithstanding that it was solemnized in Tennessee.

[20]

In my view, the appellants position that s. 31 can only
    apply to marriages solemnized in Ontario represents an overly narrow and
    technical interpretation of s. 31. It undermines and is inconsistent with the
    public policies underlying family law legislation in Ontario that support the presumption
    of the validity of marriages entered into anywhere in good faith where the parties
    have lived as, and held themselves out to be, a married couple.

[21]

The modern approach to statutory interpretation requires
    that, unless ambiguous, the provisions of a statute are to be interpreted in
    accordance with their plain meaning and legislative purpose:
Rizzo &
    Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21. The appellant does
    not submit that s. 31 is ambiguous. Rather, he urges an interpretation that, in
    my view, does not respect the plain meaning of s. 31s provisions or its
    legislative purpose.

[22]

For ease of reference, I reproduce the provisions of s. 31:

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.

[23]

The appellant argues that persons married in Tennessee or
    elsewhere cannot intend to be married under the laws of Ontario but, rather, can
    only intend to be married under the laws of the place where the marriage is
    solemnized or performed.

[24]

However, if s. 31 of the Act applied only to marriages
    performed in Ontario, the legislature could have easily included that
    requirement. Instead, such limitation is absent from s. 31. It is one among several
    provisions in the
Marriage Act
that apply to persons, like the parties
    here, who were married outside of Ontario but are domiciled in Ontario when the
    Act is invoked. For example, s. 1(2) provides that: This Act does not apply in
    respect of any ceremony or form of marriage gone through by two persons who are
    married to each other by a marriage previously solemnized in accordance with
    this Act
or recognized as valid in Ontario
 (emphasis added). And s.
    8(3) specifically refers to the dissolution or annulment of a previous marriage
    elsewhere than in Canada with respect to the prohibition of the issuance of a
    licence in certain circumstances.

[25]

This interpretation is also consistent with well-established
    conflict of law principles. As the appellant correctly points out, the formal
    validity of a marriage is determined by the law of the jurisdiction where the
    marriage is celebrated, the
lex loci celebrationis
:
Berthiaume
    v. Dastous
, [1930] 1 D.L.R. 849 (P.C.), at pp. 851, 853;
Brook v.
    Brook
(1861), 11 E.R. 703 (H.L.); Janet Walker,
Castel & Walker: Canadian
    Conflict of Laws
, loose-leaf (ReI. 82-9/2020), 6th ed. (Markham, Ont.:
    LexisNexis Butterworths, 2005) vol. 2, at para. 16-2. As noted by the author in
Canadian Conflict of Laws
, at para. 16-2:

The
lex loci celebrationis
governs the formalities surrounding the marriage ceremony, including such
    questions as whether a religious ceremony is necessary or sufficient; whether a
    marriage may be constituted
per verba de praesenti
,
    that is, by an informal exchange of consent; whether a marriage may be
    celebrated by proxy; or simply
by
the couple or one of
    them or someone authorized by them reporting the marriage to the appropriate
    governmental body. [Footnotes omitted.]

[26]

However, whether a marriage is formally invalid under the
lex
    loci celebrationis
is a different question from whether it can be
deemed
legally valid.

[27]

Section 31 contemplates marriages that are otherwise not
    legally valid until the provision deems them to be so. It is the law of the
    jurisdiction where the parties reside that applies to the question of whether
    the marriage will be legally validated notwithstanding its formal
    irregularities. Julien D. Payne and Marilyn A. Payne explain in
Canadian
    Family Law
, 8th ed. (Toronto: Irwin Law, 2020), at p. 16: Although
    based on a contract between the parties, marriage is a status to which the
    state attaches its own conditions as to its creation, duration, and consequences
    (footnote omitted). As this court reiterated in
Alspector
,

at pp.
    685-86, a competent court has jurisdiction to define matrimonial status and, in
    particular, to declare a marriage valid.

[28]

In the same way, the appellants reliance on s. 4 of the
Marriage
    Act
is in my view misplaced. Section 4 stipulates that [n]o marriage may
    be solemnized except under the authority of a licence issued in accordance with
    this Act or the publication of banns. However, these provisions do not limit
    the use of the word solemnized in s. 31 to marriages performed in Ontario.
    Rather, s. 4 refers to the question of formal validity. While they must be read
    together, sections 4 and 31 serve different purposes.

[29]

The legal validation of marriages also reflects the
    long-standing societal importance of marriage that, in the face of a dispute
    between the parties, favours deeming the marriage valid. As the Supreme Court
    stated in
Porteous v. Dorn et al.
, [1975] 2 S.C.R. 37, at pp. 40-41:

If persons live together as man and wife for such length of
    time and in such circumstances as to have acquired local repute as married a
    presumption that they are legally married may arise, which can only be
    displaced by cogent evidence to the contrary.

[30]

See also
Powell v. Cockburn
, [1977] 2 S.C.R. 218.

[31]

Section 31 is a validation clause that protects a marriage
    contracted in good faith from invalidity on the ground of formal
    irregularities: H.R. Hahlo,
Nullity of Marriage in Canada: With A Sideways
    Glance At Concubinage And Its Legal Consequences
, (Toronto: Butterworth
    & Co. (Canada), 1979), at p. 19. As the authors of
Canadian Family Law
,
    at p. 19, state: Non-compliance with statutorily presented formalities, though
    subject to penalties, does not render the marriage void unless the statute
    expressly or by necessary implication invalidates the marriage (footnote
    omitted): see also
Peppiatt v. Peppiatt
(1916), 30 D.L.R. 1 (Ont.
    C.A.), at pp. 10-12;
Kerr v. Kerr and Ontario (Attorney General)
,
    [1934] S.C.R. 72;
Clause v. Clause

(1956), 5 D.L.R. (2d) 286,
    at pp. 292-93.

[32]

Strict compliance with the statutory requirements for a
    formally valid marriage licence is therefore not required to invoke the deeming
    validity provisions of s. 31. If that were so, there would be no need for s.
    31. As this court held in
Alspector
, 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

    (emphasis in original): at p. 687.

[33]

I also note that section 31 has existed more or less in the
    same form since at least 1896 and the history of validating formerly invalid
    marriages extends back to legislation enacted in the province of Upper Canada:
The
    Marriage Act, 1896
, S.O. 1896, c. 39, s. 29; William Renwick Riddell, The
    Law of Marriage in Upper Canada (1921) 2 Can Historical Rev 226. The
    historical need for the legal validation in Ontario of marriages formally
    solemnized outside of Ontario likely stems from the practical reality that not
    all of the hundreds of thousands of individuals who have settled in this
    province have been in a position to prove the formal validity of their marriages.
    This practical difficulty, along with the strong presumption in favour of the
    regularity and validity of marriage, was observed by Robinson C.J. for the
    Upper Canada Court of Queens Bench in
Breakey v. Breakey

(1846),
    2 U.C.Q.B. 349, at p. 354:

Now I take the principle of law to be, that on
    all questions of pedigree arising in a contest about property, the presumption
    is strong in favour of the regularity and validity of the marriage, especially
    when the parties have lived together as man and wife for twenty or thirty
    years, and have been so reputed till the connection has been dissolved by
    death, and when they have left issue. The presumption is indeed so strong, that
    those who would impeach the validity of the marriage are required to make the alleged
    illegality clearly appear. It would be cruel, as regards the feelings and
    interests of parties, if the law were not in this respect rigid, and the
    hardship in this country would be grievous, where so many thousands of people
    have emigrated from distant countries, and are of that station in life that
    they cannot be supposed always to have preserved or to be able to procure such
    evidence as could satisfy any doubts and cavils in regard to the regularity of
    their marriages.

[34]

As the court concluded in
Smith v. Waghorn
, 2012
    ONSC 496, upon finding the requisite intention to comply for the purposes of
    applying s. 31 of the
Marriage Act
to validate a marriage celebrated
    in Florida, absent evidence to the contrary,[i]t would be unusual that a
    person following the laws of one state intended to be married within that
    jurisdiction but not married in another jurisdiction: at para. 42.

[35]

As a result, I would not give effect to this argument.

[36]

In my view, s. 31 of the
Marriage Act
can apply to
    validate a marriage solemnized outside of Ontario.

(ii)

If s.
31
applies to marriages solemnized
    outside of Ontario,

can a court
    consider the subjective intention of the parties to comply with the Act
?

[37]

The appellant submits that even if s. 31 of the
Marriage
    Act
can apply to marriages solemnized outside of Ontario, it was an error
    to consider the parties subjective good faith and intention. For the
    appellant, the words, intended to be in compliance with this Act, mean that
    the parties
objectively
intended to be in compliance with the
Marriage
    Act
of Ontario and that the objective nature of the parties intention
    requires them to take objectively reasonable steps to formally comply with the
    Act. The consideration of either partys
subjective
intentions is
    irrelevant and would lead to confusion and uncertainty. The trial judge
    therefore erred in taking into account the respondents subjective intentions
    to marry the appellant. Moreover, the appellant argues, the applicable deeming
    provision of s. 31 in this case relieves against only technical
    irregularities and insufficiencies with respect to the issue of the marriage
    licence
[2]
; the failure to obtain a marriage licence
    is not a technical irregularity or insufficiency.

[38]

Here too, in my view, the appellants approach is overly strict,
    does not represent a plain reading of s. 31, and undermines its purpose.

[39]

I reiterate the well-established public policy discussed
    above that favours marriage as a social institution, which, in my view, is
    reflected in s. 31 of the
Marriage Act
.

[40]

I also disagree with the appellants position that the
    parties subjective intentions to comply with the law of Ontario are
    irrelevant. Neither the English nor the French language version of s. 31 precludes
    the assessment of the parties subjective intentions to comply nor have they
    been excluded from judicial consideration. As this court confirmed in
Alspector
,
    even the subjective intentions of one party are relevant. However, whether the
    evidence of an intention to comply is credible or reliable is another question.
    The issue of whether the parties or one party intended to conform with the law
    is a question of mixed fact and law that involves issues of credibility and
    reliability for a judge to determine.

[41]

Moreover, the curative provisions of s. 31 are not limited,
    as the appellant suggests, to situations involving mere irregularity or
    insufficiency in the issue of a marriage licence. The appellants proposed
    interpretation omits the express curative provision in s. 31 for the absence
    of the issue of a marriage licence
[3]
, which is what occurred here.

[42]

That said, I agree with the appellants position that
    intended to be in compliance with this Act requires something more than the
    condition that the parties have solemnized their marriage in good faith.
    Otherwise, there would be no need to include the requirement of intended to be
    in compliance in addition to the requirement that the marriage be solemnized
    in good faith. As the author of
Nullity of Marriage
states at p. 20:

While failure to comply with prescribed
    statutory formalities does not, as a rule, invalidate a marriage  at least
    where the parties acted in good faith  there must always be it is submitted,
    something which, at least in appearance, amounts to a proper marriage ceremony.
    An informal consent marriage, even if it was contracted by the parties in good
    faith and was followed by their cohabitation as man and wife, can never qualify
    as a marriage. It is a non-marriage. [Footnote omitted.]

[43]

See also:
Dutch v. Dutch
(1977), 1 R.F.L. (2d) 177
    (Ont. Co. Ct.), at pp. 187-89.

[44]

In my view, a marriage is intended to be in compliance
    with this Act where there is an intention to create a formally binding legal marriage,
    that is, one that would be recognized for civil, as opposed to only religious, purposes.
    That intention will not be present where the parties know of the relevant
    formal legal requirements and deliberately choose not to follow them, notwithstanding
    that their marriage is recognized as a valid religious ceremony or was
    solemnized in good faith. But that intention may be found where the parties believe
    they are marrying for all purposes, any non-compliance was non-deliberate, and where
    the parties subsequent behaviour confirms that they considered themselves, from
    the time of the marriage ceremony, to have become legally married.

[45]

As the following review of the relevant case law in Ontario
    demonstrates, this is the approach that has been followed uniformly for more
    than fifty years by the courts that have considered the intention to comply provisions
    of s. 31 and its predecessors. I disagree with the appellants submission that
    there is any conflict in the approach taken by courts or that this approach has
    led to divergent or unpredictable results.

[46]

I begin with a review of
Alspector
and
Debora
.
    In my view,
Alspector
has not been overturned by
Debora
;
    these cases can be read consistently with each other. The key factual distinction
    between them is that in
Debora
, unlike in
Alspector
, there
    was a finding of deliberate non-compliance with Ontario law.

[47]

Alspector
involved
    circumstances where the parties were married in Ontario by a cantor in a Jewish
    religious ceremony without a marriage licence. The husband made inquiries as to
    whether a marriage licence was required and believed it was not because the
    parties intended to live in Israel. The wife relied on the husbands advice
    that a marriage licence was not required. This court accepted the wifes
    subjective intention to comply with the law of Ontario to enter into a formally
    valid marriage and held that her subjective intention was sufficient to satisfy
    the intention to comply provision of the predecessor to s. 31 of the
Marriage
    Act
.

[48]

In comparison,
Debora
involved materially
    different factual circumstances and therefore is distinguishable from
Alspector
and the present case. The parties participated in a religious ceremony in 1987
    and later went through a civil ceremony in 1994. The court interpreted
    marriage in the definition of spouse under s. 1(1) of the
FLA
as
    meaning a marriage under the
Marriage Act
. This court held that while
    the 1994 ceremony was valid, the 1987 religious ceremony did not create a
    formally valid marriage because the parties had deliberately not complied with
    the law of Ontario. Although aware of the requirement, they intentionally did not
    register their marriage following the 1987 ceremony so that the husband could
    continue to receive a widowers pension. This court focused its analysis on the
    meaning of good faith on the part of the person asserting a right under s.
    1(1)(b) of the
FLA
and determined, citing
Harris v. Godkewitsch
(1983), 41 O.R. (2d) 779 (Ont. Prov. Ct.), at p. 781, that spouse under s. 1
    should not be extended to cover a person who participated in a ceremony in
    Ontario that was clearly and deliberately outside the
Marriage Act
,
    notwithstanding the marriage was solemnized in good faith:
Debora
,
    at pp. 762-63.

[49]

I turn next to consider what the appellant has described as
    two conflicting lines of cases. In my view, there is no conflict. Rather, the
    divergent results in these cases stem from their divergent facts. A review of
    the caselaw reveals a consistent approach: marriages are deemed valid provided
    there is some evidence of intent to comply with marriage law and absent deliberate
    non-compliance.

[50]

I start with the cases where the courts declined to
    validate marriages under s. 31 of the
Marriage Act
.

[51]

In
Harris
, the application judge found that the
    applicant chose not to be married for the purposes of Ontario law but,
    instead, to be committed personally and spiritually through the Jewish
    ceremony because of a desire not to be in a position to make any property claims
    against the respondent: at p. 780. The marriage was not deemed valid.

[52]

Kanafani v. Abdalla
,
    2010 ONSC 3651, 89 R.F.L. (6th) 189, is similarly distinguishable from
Alspector
and the present case on its facts. In 2004, the parties were married in Toronto
    under Sharia law by an Islamic religious leader. They never obtained a marriage
    licence or registered the marriage. They subsequently attended before a judge
    in the United Arab Emirates (UAE). The focus of the motion for summary
    judgement was on the subsequent UAE ceremony, which the wife asserted resulted
    in a valid civil marriage. The motion judge found there was no intention to
    comply with Ontario law and concluded that on the undisputed facts the
    religious marriage was not valid under the
Marriage Act
. She held that
    the certificate issued by the judge in the UAE did not suggest a new valid
    marriage ceremony had occurred. Her conclusion was supported by the wifes contradictory
    assertions about whether the UAE ceremony created a new marriage or merely
    registered the Toronto marriage.

[53]

Chhokar v. Bains
,
    2012 ONSC 6602, involved a finding of deliberate non‑compliance. The
    parties had participated in a Sikh religious marriage ceremony in Ontario. The
    trial judge accepted the respondent husbands evidence that the applicant wife,
    prior to the religious marriage ceremony, did not want to obtain a marriage
    licence. He concluded that she knew of the need for a marriage licence and did
    not intend to comply with the laws of Ontario. As a result, he declined to
    validate the marriage under s. 31 of the
Marriage Act
.

[54]

In
Aden v. Mohamud
, 2019 ONSC 6493, the court
    declined to deem the marriage valid pursuant to s. 31 of the
Marriage Act
because the parties did not intend to comply with the law of Ontario. The
    parties participated in a religious marriage ceremony in 2007 without
    registering the marriage. The husband later married another woman in 2014,
    which was registered in Ontario. The court held that this arrangement was
    inconsistent with a legal marriage in Ontario such that the marriage was not
    valid pursuant to s. 31 of the
Marriage Act
. The court, at para. 22,
    rejected the wifes stated belief that she assumed her marriage was legal on
    the basis that had she truly believed that she was married according to the law
    of Ontario, her marriage would have ended in 2014 when her husband informed her
    of his intent to have more than one wife.

[55]

Moza and Thusu (Re)
,
    2021 ONSC 1552, 54 R.F.L. (8th) 132, is the most recent reported decision to
    consider s. 31 of the
Marriage Act
. The application judge refused to
    validate the parties marriage celebrated in a religious ceremony in India
    because she was not satisfied that there was evidence of the formal
    requirements under Indian law nor of an intention to comply with Ontario law.

[56]

By contrast, the cases where courts have validated
    marriages under s. 31 of the
Marriage Act
all involve findings that at
    least one of the parties intended to comply with the law of Ontario.

[57]

The court in
Friedman v. Smookler
, [1964] 1 O.R. 577 (Ont. S.C.),
deemed a
    marriage to be valid because the parties intended to comply with the Act.
    Following the ceremony, the parties had lived together as man and wife.
    Although they did not obtain a licence and the celebrant was not an authorized
    marriage officer, the court held that it is enough that the persons to the
    marriage act under a belief that a religious ceremony will be recognized as a
    legal marriage.

[58]

Like the present case, in
Ayoub v. Osman
, 2006
    CanLII 9309 (Ont. S.C.), the court considered whether the parties formal
    religious marriage ceremony officiated by an Imam in Ontario produced a
    formally valid marriage where no marriage licence had been obtained and the
    marriage was not registered. The court validated the marriage under s. 31 of
    the
Marriage Act
because the parties considered themselves formally
    married to one another, lived together as husband and wife for almost 12 years,
    and had two children.

[59]

The parties subjective intention to marry one
    another was also an important factor in the courts decision to validate the
    marriage in
Smith
.

In
    Florida, the parties had participated in a marriage ceremony before a duly
    authorized officer and obtained a marriage licence. However, they had misrepresented
    the husbands name to the Florida court and marital officials. The application
    judge applied s. 31 to validate the marriage. He concluded that although the
    applicant knew that the respondent had misrepresented his name for employment
    purposes, she did not understand that this misrepresentation would invalidate
    their marriage. He found on the evidence that the parties intended to enter
    into a legally binding marriage

and thereafter to be so considered in
    accordance with the laws of all jurisdictions, including the Province of
    Ontario: at para. 42. This finding was fact-specific. After the marriage
    ceremony, the parties cohabited, lived together, and repeatedly represented to
    the public and their families that they were married to one another.

[60]

In
Isse v. Said
, 2012 ONSC 1829, 19 R.F.L. (7th)
    413, the parties participated in an Islamic wedding ceremony in Ontario
    according to Sharia law. No marriage licence was issued and the marriage was
    not registered under the law of Ontario. The court determined that the marriage
    was valid under s. 31 of the
Marriage Act
because the ceremony was
    solemnized in good faith and the parties intended to comply with the
Marriage
    Act
. Importantly, the court accepted that the wife assumed that the
    religious ceremony legalized the marriage and did not know that any further
    steps were required.

[61]

Jama v. Basdeo
, 2020 ONSC 2922, is also factually similar to the present
    case. The parties participated in a traditional Islamic wedding ceremony and
    intended to be legally married. While there were witnesses to the ceremony, the
    parties did not obtain a marriage licence and there was no evidence that the
    officiant was authorized to solemnize marriages. The trial judge concluded that
    both parties intended to comply with the law to enter into a valid marriage. In
    particular, she accepted the wifes evidence that she was not aware that a
    marriage licence was required in order to make the marriage legal and that had
    she known, she would have obtained a licence. As a result, the trial judge
    validated the marriage under s. 31 of the
Marriage Act.

Application of the
law to the facts
    of this case

[62]

Each of the decisions that I have just reviewed turned on
    the particular factual circumstances of each case. In each, it was crucial whether
    there was evidence of an intention to comply or, conversely, of deliberate
    non-compliance with the formal requirements of the law in Ontario
[4]
.

[63]

Here, the parties believed that the marriage ceremony
    created a binding marriage in conformity with the laws of Tennessee and Ontario,
    and their subsequent conduct shows they acted on that belief. That belief, as
    the trial judge found, correctly in my view, indicated an intention to enter
    into a valid, legally recognized marriage. His finding was grounded firmly in
    the evidence. Unlike in some of the cases reviewed above, there was no evidence
    in the present case that either party intended not to be legally married or was
    deliberately not complying with the law of Ontario. Other than the failure to
    obtain a marriage licence, the parties complied with all the other statutory
    requirements for a valid marriage under Tennessee or Ontario law. They were
    married by an Imam. There were witnesses present at the ceremony. They had the
    capacity to enter into the marriage and consented to do so. Most important,
    neither of them knew that a marriage licence was required to create a formally
    valid marriage. In other words, they believed that they had entered into a
    legally binding marriage that would be legally binding anywhere, including under
    the laws of Ontario, where they intended to reside following the ceremony.

[64]

There is also no question that the parties complied with
    all of the other provisions of s. 31 of the
Marriage Act
: they entered
    into their marriage in good faith; they were married in a religious ceremony in
    a mosque by an Imam which was consistent with their religious faith at the time
    of the marriage; they had the capacity to enter into marriage and consented to
    do so; and they lived as a married couple following the religious ceremony: the
    respondent wore a ring and the parties indicated they were married as their
    status on various legal documents, including income tax returns, hospital
    records, birth records, and mortgage documents.

[65]

As a result, I see no error in the trial judges conclusion
    that the provisions of s. 31 of the
Marriage Act
were met and that the
    marriage was deemed valid. The onus is on the appellant to rebut the
    presumption of a valid marriage:
Powell
, at p. 225. In my view, he has
    failed to do so.

[66]

In sum, the parties intended to comply with whatever law
    governs the solemnization of marriages in Tennessee that would be recognized in
    Ontario. Denying the parties marriage would work an injustice on the
    respondent who relied on the appellant and unjustly relieve the appellant of his
    legal obligations in respect of the marriage that he voluntarily arranged, entered
    into, and derived the benefit of for 18 years. As this court stated in
Alspector
,
    the law will not permit him in a subsequent action to plead his own fraud upon
    the bride in order to have the ceremony declared a nullity: at pp. 687-88. This
    would run counter to the long‑standing presumption of the validity of
    marriage and frustrate the socially important goal of avoiding the very circumstances
    that s. 31 of the
Marriage Act
was intended to address.

Disposition

[67]

For these reasons, I would dismiss the appeal.

[68]

If the parties cannot agree on the disposition of costs, I would
    permit them to submit brief written argument of no more than two pages, plus a
    bill of costs, within ten days of the release of these reasons.

Released: September 24, 2021 D.B.

L.B. Roberts J.A.

I agree. David Brown
    J.A.

I agree. B. Zarnett
    J.A.

[1]

Now
    called decision-making responsibility and parenting time.

[2]
The
    curative provisions of s. 31 also may relieve against the circumstance where
    the person who solemnized the marriage was not authorized to solemnize
    marriages; however, this was not an issue raised on appeal.

[3]

The French language version of s. 31 also stipulates clearly that
    its curative provisions apply in the absence of a licence, and not merely in
    the circumstance of an irregularly issued licence, as follows: « Le
    mariage est valable, même si le célébrant nétait pas autorisé à le célébrer et
même sil ny a pas eu
de publication de bans ni
de délivrance de
    licence
,
ou sil sest glissé quelque irrégularité
dans cette
    publication ou
cette délivrance
, quand les parties
    à la célébration du mariage étaient de bonne foi, désiraient se conformer à la
    présente loi, nétaient sous le coup daucun empêchement légal de contracter
    mariage et vivent ensemble et cohabitent comme couple marié depuis le mariage. »
[Emphasis added].

[4]
The
    appellant also relied on three judgments of courts outside of Ontario. None of
    them is binding on this court. Furthermore, they are of little assistance in
    interpreting Ontario statutes and are factually distinct. For example, in
Bussey v. Dwyer
, 2017 NLCA 68, the case
    turned on the parties deliberate choice not to enter into a legal marriage but
    exchange rings in a peculiar ceremony at their home
without an officiant,
    a witnesses or a licence, and where they read out a bible verse to each other
    used at weddings.


COURT OF APPEAL FOR ONTARIO

CITATION: Khairzad v. Erroussa, 2021 ONCA
    667

DATE: 20210927

DOCKET: C68805

Strathy C.J.O., Pepall and Pardu
    JJ.A.

BETWEEN

Seyar Khairzad

Applicant (Appellant)

and

Ghizlane Erroussa

Respondent (Respondent)

James A. Brown, for the appellant

John V. Grant, for the respondent

Heard: September 16, 2021 by
    video conference

On appeal from the order of Justice Lauren
    Bale of the Superior Court of Justice, dated March 31, 2020, with reasons
    reported at 2020 ONSC 1787.

REASONS FOR DECISION

[1]

The appellant, Seyar Khairsad, appeals from a March 31, 2020 order:

(i)

dismissing his motion
    to change the consent decision-making and parenting time order made by Pazaratz
    J. on August 11, 2017; and

(ii)

increasing the appellants
    monthly child support from $179 to $359 based on an imputed annual income of
    $40,000.

[2]

The appellant also brings a motion for leave to adduce fresh evidence on
    his annual income for the years 2017, 2018, his employment status, and leasing
    arrangements.

[3]

At the conclusion of their oral submissions, we advised the parties that
    the appeal was dismissed with reasons to follow. These are those reasons.

Decision-Making Responsibility and Parenting Time

[4]

The parties separated prior to the birth of their daughter, born in
    December 2016. She has always resided with the respondent. In 2017, the
    appellant was charged with assault of the respondent and entered into a peace
    bond. The motion judge found that the respondent is a victim of domestic
    violence at the hand of the appellant.

[5]

The appellant submits that the motion judge erred by failing to award
    joint decision-making responsibility (previously referred to as custody) to the
    appellant and by refusing to increase the appellants parenting time
    (previously referred to as access) to the parties daughter.

[6]

The motion judge declined to find a material change with respect to decision-making
    responsibility. By all accounts, the parties daughter was thriving under the
    primary care and decision-making authority of the respondent. The evolution of
    the appellants increased role in his daughters life did not amount to a
    change in circumstances warranting a change in the decision-making
    responsibility order. Furthermore, even if there were a material change, a
    joint decision-making arrangement would be unworkable. The motion judge noted
    the history of abuse, the ongoing difficulties in communications, and the
    appellants animosity and distrust of the respondent, all of which precluded any
    such arrangement.

[7]

As for parenting time, before the motion judge, the respondent conceded
    that there had been a material change of circumstances since the August 11, 2017
    order due to the daughters age and stage of development. The motion judge
    adjusted the appellants parenting time to consist of alternate weekends from
    Friday at 4 p.m. to Sunday at 7 p.m., every Tuesday afternoon from 4 p.m. to 7 p.m.,
    and Tuesdays from 9 a.m. to 7 p.m. during the months of July and August on
    certain terms.

[8]

The appellant asks this court to vary the decision-making order and
    invites us to adjust the parenting times contained in the order granted, saying
    the order failed to reflect the principle of maximum contact consistent with
    the best interests of the child.

[9]

An appeal court should only intervene in a parenting order or family
    support decision where there is a material error, a serious misapprehension of
    the evidence, or an error in law:
Hickey v. Hickey
, [1999] 2 S.C.R.
    518, at para. 2;
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R.
    1014, at para. 12.

[10]

We
    see no such errors in the motion judges parental decision-making and parenting
    time decision. She gave detailed and thoughtful reasons. She applied the
    correct legal principles and her findings and conclusions were fully justified
    on the record before her and anchored, as they ought to have been, in the best
    interests of the child in this case. We see no basis on which to interfere.

Child Support

[11]

On
    the issue of child support, the appellant is a painting contractor and was 38
    years of age at the time of the hearing. The motion judge observed that the
    2017 order was silent on the quantum of the appellants income but that a
    monthly payment of $179 would correspond with an income of approximately $22,500
    under the Child Support Guidelines. The 2017 order required the parties to
    provide updated annual income disclosure but neither did.

[12]

On
    September 24, 2019, Chappel J. had ordered the appellant to make financial
    disclosure, but he failed to produce a sworn financial statement or any
    documentary evidence on his 2017, 2018 and 2019 income as ordered. Based on the
    failure to comply, the passage of time and the likelihood that the appellants
    income had not remained static, the motion judge found a material change in
    circumstances. She imputed an annual income of $40,000 to him based on a
    variety of factors including the number of hours he worked each week, his
    hourly rate, the availability of work, and collateral evidence of his lifestyle
    such as his rental of a Maserati motor vehicle. This imputation resulted in an
    order of monthly child support of $359.

[13]

Again,
    we see no basis to interfere. Based on the record before her, the inferences
    and conclusions drawn by the motion judge were reasonable.

Fresh
Evidence

[14]

We
    also dismiss the request for leave to admit fresh evidence.

[15]

On
    the issue of child support, the appellant failed to comply with both the 2017
    and 2019 disclosure orders. It is not now open to him to seek to admit evidence
    available to him at the time of the motion to achieve a better result on
    appeal. As stated in
R.F. v. J.W
., 2021 ONCA 528, at para. 11, the
    proper place for new evidence about changed circumstances --- if in fact the
    threshold of material change can be met --- is a motion to change before the
    court that has original jurisdiction, and not in the context of an appeal. In
    any event the appellants tax returns did not reflect his earning capacity, for
    the reasons indicated by the motion judge.

[16]

Although
    the criteria described in
Palmer v. The Queen,
[1980] 1 S.C.R. 759,
are more flexible
    where an appeal involves the best interests of a child (see for example
Goldman
    v. Kudelya
, 2017 ONCA 300, [2017] W.D.F.L. 3127, at para. 25), the fresh
    evidence on the appellants new lease arrangements could not possibly have
    affected the parenting decision reached by the motion judge. We decline to
    grant leave to admit that evidence.

[17]

For
    these reasons, the appeal is dismissed as is the motion for leave to admit
    fresh evidence.

[18]

The
    parties were invited to make written submissions on costs. Having considered
    the submissions made, the appellant is to pay the respondents costs of the
    appeal fixed in the amount of $7,000 inclusive of disbursements and applicable
    tax.

G.R. Strathy
    C.J.O.

S.E. Pepall
    J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Narwhal International Limited v.
    Teda International Realty Inc., 2021 ONCA 659

DATE: 20210927

DOCKET: C68786

Strathy C.J.O., Pepall and Pardu
    JJ.A.

BETWEEN

Narwhal
    International Limited

Applicant (Appellant)

and

Teda International Realty Inc.

Respondent (Respondent)

Gennady Tcherny, President of Narwal
    International Limited, acting as agent for the appellant, with leave of the
    Court

Stephanie Tassopoulos, for the
    respondent

Heard: September 17, 2021 by video conference

On appeal from the order of Justice Breese
    Davies of the Superior Court of Justice, dated January 7, 2021.

REASONS FOR DECISION

[1]

This appeal concerns a dispute about the renewal
    term in a commercial lease.

[2]

In March 2019, the appellant tenant notified the
    respondent landlord of its intention to renew the lease for a five-year period.
    Protracted negotiations between the parties did not result in agreement on the
    rent to be paid during the renewal period. The appellant commenced an
    application for a declaration that it was entitled to renew the lease and for
    an order setting the rent for the renewal period.

[3]

There were two principal issues before the
    application judge. The first concerned which of two documents was actually the
    agreement to lease executed by the parties. This was significant because the
    renewal provisions in the two documents were different.

[4]

After reviewing the conflicting evidence
    tendered by the parties, the application judge found that the document tendered
    by the respondent was the agreement made between the parties. She gave cogent
    reasons for her conclusion.

[5]

Unlike the document proffered by the appellant,
    which provided that the rent on renewal would be determined by reference to
    prevailing market rates for similar space, the document produced by the
    respondent, and accepted by the application judge, simply stated that the net
    rental rate for the five-year renewal period was to be discussed between
    landlord and tenant.

[6]

The application judge noted that a right to
    renew a lease on the same terms except for the rental rate does not create an
    enforceable legal obligation, other than an obligation on the landlord to
    negotiate in good faith: referring
inter alia
to
Godson v. P. Burns
    & Co.
(1919), 46 D.L.R. 97 (S.C.C.);
Molson Canada 2005 v. Miller
    Brewing Company
, 2013 ONSC 2758, 116 O.R. (3d) 108, at paras. 95-108.

[7]

The second issue was whether the landlord had
    negotiated in good faith with respect to the rental rate for the renewal term.

[8]

After setting out the chronology of the renewal
    discussions in considerable detail, the application judge found that [the
    respondent] acted in good faith during its negotiations with [the appellant]
    and ultimately made a reasonable offer to [the appellant] for the renewal. The
    appellant rejected that offer, although it subsequently attempted to accept the
    offer after it received notice of termination of the lease. Again, the
    application judge gave detailed and thoughtful reasons for her finding of good
    faith.

[9]

The application judge therefore dismissed the
    appellants application.

[10]

In this appeal, the appellant challenges the
    application judges findings on both central issues: the determination of which
    of the two documents constituted the agreement to lease and whether the
    respondent had engaged in good faith negotiations to renew the lease.

[11]

The appellant also seeks to introduce fresh
    evidence on the appeal. In essence, that evidence challenges: (a) the
    respondents evidence on the application concerning the appropriate market rent
    for the premises; (b) the respondents conduct after the hearing of the
    application; and (c) the conduct of the respondent and its counsel in related
    proceedings.

[12]

We decline to admit the fresh evidence. While
    some of it relates to events that occurred after the application had been heard
    and was not available at the hearing, we are not satisfied that any of the
    evidence is relevant to the issues to be determined on this appeal. In any
    event, we are satisfied that even if the evidence were to be admitted, it would
not
have affected the outcome as it does not call
    into question the application judges findings of fact on the central issues: see
R. v. Palmer
, [1980] 1 S.C.R. 759.

[13]

Turning to the appeal itself, the appellant
    invites us to revisit the findings of fact made by the application judge. In
    effect, it argues that the application judge erred in finding that the
    agreement to lease was the document tendered by the respondent and in finding that
    the respondent had negotiated in good faith.

[14]

Unfortunately, the appellant misunderstands the
    function of an appellate court. It is not this Courts responsibility to
    conduct a second trial. In the absence of a palpable and overriding error in
    the application judges assessment of the evidence, an appellate court must
    accept the judges findings of fact. A palpable and overriding error is an
    obvious error that is sufficiently significant to vitiate the challenged
    finding of fact:
Longo v. MacLaren Art Centre
, 2014 ONCA 526, [2014]
    O.J. No. 3242, at para. 39. It has also been said that:

A palpable error is one which is clear to the
    mind or plain to see, so obvious that it could be easily seen or known or
    readily or plainly seen. An overriding error is one which had a sufficiently
    decisive effect, such that it would justify intervention and review on appeal:
1632093
    Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74
,
    2020 ONCA 843, 328 A.C.W.S. (3d) 66, at para. 1.

[15]

The application judge made no such error. She
    gave thorough and cogent reasons for her findings of fact, some of which were
    based on her assessment of the credibility of the respondents witness. Her
    findings of fact are entitled to deference and are dispositive of this appeal.

[16]

The appeal is dismissed. We did not receive
    submissions on costs. If costs are sought, they may be addressed by written
    submissions. The respondent shall serve and file its submissions within 10 days
    of the issuance of the reasons. The appellant shall have 10 days from receipt
    of the respondents submissions to serve and file its submissions. The
    submissions shall not exceed three (3) double-spaced pages, excluding cost
    outlines. They shall be filed with the Registrar of this Court, and copied to
    the opposing party, either by email or by ordinary mail.

G.R.
    Strathy C.J.O.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ottawa-Carleton Standard
Condominium Corporation No. 671 v. Friend, 2021 ONCA 666

DATE: 20210927

DOCKET: C69072

Watt, Benotto and Trotter JJ.A.

BETWEEN

Ottawa-Carleton Standard
Condominium Corporation No. 671

Applicant (Respondent)

and

Anthony Marcus Friend and
Henriette Friend

Respondents (Appellants)

Samuel Zakhour, for the appellants

Cheryll Wood and David Lu, for the
respondent

Heard: September 22, 2021 by
video conference

On appeal from
the order of Justice Paul B. Kane of the Superior Court of Justice dated June
4, 2020.

REASONS FOR DECISION

[1]

The appellants are condominium owners. The
appellant, Mr. Friend, has a long-standing dispute with the condominium
corporations Board of Directors and employees, dating back to 2011. He has
refused to follow the condominiums by-laws and rules. He has interfered with contractors
attempting to carry out work in the building. He has engaged in a campaign of
harassment and rude and demeaning behaviour aimed at members of the Board of
Directors and employees of the condominium. He has physically accosted the
President of the Board.

[2]

In 2019, the respondent obtained an interim
injunction that restricted Mr. Friends ability to communicate with the people
he has harassed and/or accosted. He persisted in his behaviour. Consequently, the
respondent condominium corporation brought an application under s. 134(1) of
the
Condominium Act
, 1998
, S.O. 1998, c. 19, and r. 14.05(2) of
the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, seeking a
permanent injunction against Mr. Friend.

[3]

The application judge found that Mr. Friend was
in violation of s. 117 of the
Condominium Act
, which provides: No
person shall permit a condition to exist or carry on an activity in a unit or
in the common elements if the condition or the activity is likely to damage the
property or cause injury to an individual. The application judge held that
injury includes psychological harm.

[4]

The application judge further held that, Mr.
Friends persistent and ongoing breaches with aggression of the Act and the
Condominiums declaration and rules must be halted. He ordered that Mr. Friend
cease and desist in conduct that contravenes the Act and/or the Condominiums
declaration, by-laws and rules. He restricted Mr. Friends ability to
communicate with members of the condominium community, including their families.
A number of exceptions, however, were built into this prohibition.

[5]

The appellants challenge the legality and
appropriateness of this order. They also apply to adduce fresh evidence in the
form of Mr. Friends affidavit in which he purports to show that he was treated
unfairly at the hearing of the application. We admit the fresh evidence for
this limited purpose. It is not admissible, and is irrelevant, to the
substantive issues decided by the application judge.

[6]

The appellants advance a number of grounds of
appeal. They submit that the application judge had no jurisdiction to order a
permanent injunction because there was no underlying action to which it could
attach. We disagree. The application was properly brought under s. 134 of the
Condominium
Act
and provided the jurisdictional footing for the order that was made.

[7]

The appellants submit that the application judge
erred in failing to apply the proper test for a permanent injunction. More
specifically, the appellants submit that the trial judge failed to appreciate
that the test for obtaining a permanent injunction is different from the test
for an interlocutory injunction. While the trial judge did not specifically
advert to the test he applied in making the order, the order that he made
limiting communication between Mr. Friend and various members of the
condominium community   was authorized by s. 134(3) of the
Condominium Act
,
which permits a judge to grant such other relief as is fair and equitable in
the circumstances.

[8]

The order was fair and equitable in the
circumstances, based on the findings that the application judge made about Mr.
Friends behaviour and its impact on those affected. Mr. Friends offensive
conduct continued after the interim injunction was in place. This, in itself,
amply justified the application judges order.

[9]

The appellants submit that the proceedings were
unfair because they were denied an adjournment. We disagree. The decision to
grant an adjournment is a discretionary one that must be afforded deference on
appeal. In this case, the application judge gave thorough reasons for refusing
an adjournment, noting that the request was, but one of a pattern of
adjournment requests by Mr. Friend.

[10]

We also disagree with the submission that the
proceeding was unfair because the application judge failed to consider Mr.
Friends position on contentious matters. Mr. Friend did not file an affidavit;
instead, he relied on a slide presentation and an affidavit filed in a related
lien action. As the application judge said, [m]uch of the materials filed by
Mr. Friend do not respond to the issues on this application and instead recite
his disputes with the Condominium dating back to 2011 and unrelated matters
such as the Condominiums 2019 Auditors Report.

[11]

Lastly, and although not pressed in oral
submissions, the appellants submit that the application judge should have
converted the proceeding to an action because there were facts in dispute.
Again we do not agree. The material facts were either admitted to by Mr. Friend
or simply not addressed. The application judges decision was reasonable.

[12]

Accordingly, the appeal is dismissed. We award
costs to the respondent in the amount of $12,500, inclusive of costs and
disbursements.

David Watt J.A.

M.L. Benotto J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Moses v. Moses, 2021 ONCA 662

DATE: 20210928

DOCKET: C69124

Strathy C.J.O., Lauwers and
    Sossin JJ.A.

BETWEEN

Reuben
    Moses

Applicant (Appellant)

and

Rosy
    Moses, personally and in her capacity as the Estate Trustee of the primary and
    secondary estates of Aby Reuben Moses, deceased, and Rachel Moses

Respondents (Respondents in Appeal)

Gregory M. Sidlofsky, for the appellant

Catherine Francis, for the respondent,
    Rachel Moses

Ranjan Das, for the respondent, Rosy
    Moses, personally and in her capacity as the Estate Trustee of the primary and
    secondary estates of Aby Reuben Moses

Heard: September 3, 2021 by video conference

On appeal from the order of Justice Peter
    J. Cavanagh of the Superior Court of Justice, dated January 25, 2021, with
    reasons reported at 2021 ONSC 587, 64 E.T.R. (4th) 246.

REASONS FOR DECISION

[1]

The application judge dismissed the appellants application for a
    declaration of invalidity of a will made by his late father in 2019, three
    months before his death (the 2019 Will). He claimed that the 2019 Will was
    invalid as a result of undue influence by his mother, the respondent Rosy Moses,
    and by his sister, the respondent Rachel Moses.

[2]

In other proceedings, the appellant claims an interest in his fathers
    property, based in part on proprietary estoppel.

[3]

The appellant advances two principal submissions. First, he submits that
    the application judge erred in his interpretation of s. 23 of the
Estates Act
, which gives a party standing under a will
    when making a claim to property affected by the will. He submits that his
    civil action against the estate is such a claim. He contends that in rejecting
    his submission, the application judge incorrectly relied on the decision of the
    Saskatchewan Court of Appeal in
Adams Estate v. Wilson
,
    2020 SKCA 38, 57 E.T.R. (4th) 1.

[4]

The appellants second submission is that the application judge erred by
    putting an onus on him to establish the invalidity of the 1996 Will, an issue
    that would be determined at a later date, if necessary.

[5]

The application judge found that the appellant had no standing to bring
    the application to declare the will invalid, either under r. 75.06(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 or under
    s. 23 of the
Estates Act
, R.S.O. 1990, c. E.21.
    He was not a beneficiary under the 2019 Will and, even if the 2019 Will were to
    be set aside on the ground of undue influence, he would not be affected by the
    result, because there was an earlier will, made in 1996 (the 1996 Will),
    under which the appellant would receive no share on the death of his father
    the entire estate would go to his mother.

[6]

In coming to these conclusions, the application judge made findings of
    fact concerning the provenance of the 1996 Will and the circumstances of its execution.
    Those findings were based on evidence tendered by the respondents concerning
    the discovery of the 1996 Will and its preparation and execution. Rachel Moses
    swore an affidavit concerning her discovery of the 1996 Will, which had been in
    the possession of her mother. Although the solicitor who prepared that will was
    deceased, his former legal assistant swore an affidavit identifying her
    signature as one of the two witnesses to the will and the signature of the
    solicitor as the other witness. The assistant deposed that it was the
    solicitors practice that two witnesses were always present when a client
    executed a will.

[7]

The application judge noted that the appellant did not cross-examine
    either Rachel Moses or the lawyers assistant. Nor did he provide affidavit
    evidence that called into question any of the evidence the respondents had
    adduced. The application judge found that the appellant presented no evidence
    to support an inference that the 1996 Will was unauthentic or invalid. He found
    that the appellant failed to satisfy the low threshold of presenting
    sufficient evidence to support an inference that he appears to have a financial
    interest in [his fathers] estate. He therefore found that the appellant did
    not have standing under r. 75.06(1).

[8]

The application judge also found that the appellants civil action based
    on proprietary estoppel did not give him standing to challenge the 2019 Will
    pursuant to s. 23 of the
Estates Act
, where he
    would otherwise have no standing to do so. The outcome of the civil action did
    not depend on the validity of the 2019 Will.

[9]

We see no error in the application judges reasons. In the
    circumstances, there was an onus on the appellant to adduce
some evidence

to
    call into question the considerable body of evidence adduced by the respondent
    to establish the validity of the 1996 Will. The conclusion that he failed to do
    so is entitled to deference.

[10]

Nor
    are we persuaded that the application judge erred in the interpretation or
    application of s. 23 of the
Estates Act
. The
    jurisdiction under that provision is discretionary and the appellant has
    identified no error by the application judge in the exercise of his discretion.

[11]

In
    the circumstances, we do not find it necessary to decide whether the decision
    of the Saskatchewan Court of Appeal in
Adams Estate

reflects the law of Ontario.

[12]

At
    the end of the day, as the application judge found, the appellant may pursue
    his claims in his civil action against the estate, his mother, and the
    companies in which his father had interests.

[13]

The
    appeal is dismissed. We invited counsel to attempt to resolve the issue of
    costs. As we have not heard from them, we award costs to the respondent, Rachel
    Moses, in the amount of $15,000 and to the respondent, Rosy Moses, in the
    amount of $5,000, both amounts inclusive of disbursements and all applicable
    taxes.

G.R. Strathy C.J.O.

P. Lauwers J.A.

L. Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R.
    v. Chen, 2021 ONCA 661

DATE: 20210928

DOCKET: C67135

Paciocco, Nordheimer and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Qi Cong Chen

Appellant

Darren S. Sederoff and Robert Cutruzzola,
    for the appellant

Alexia Bystrzycki, for the respondent

Heard: September 3, 2021 by
    videoconference

On appeal from the sentence imposed on June
    27, 2019 by Justice Nancy J. Spies of the Superior Court of Justice.

REASONS FOR DECISION

[1]

We grant leave to appeal and allow the appeal. Although we see no error
    in the trial judges reasoning, a conditional sentence is a fit sentence. Based
    on her reasoning we are confident that the trial judge would have imposed a
    conditional sentence had the opportunity been available to her to do so.

[2]

The terms of the conditional sentence will be prepared and released as
    soon as reasonably possible.

David M. Paciocco
    J.A.

I.V.B.
    Nordheimer J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R
    v. Daye, 2021 ONCA 671

DATE: 20210927

DOCKET: M52800 (C68657)

Paciocco
    J.A. (Motion Judge)

BETWEEN

Her Majesty
    The Queen

Respondent

and

Jamal Daye

Applicant/Appellant

Chris Sewrattan and Ashley Sewrattan,
    for the applicant/appellant

Sarah Egan, for the respondent

Heard: September 27, 2021 by videoconference

ENDORSEMENT

[1]

On October 2, 2020, Mr. Jamal Daye, a young man with no prior criminal
    record, received bail pending appeal, on consent, after he was convicted of
    serious narcotics trafficking charges and sentenced to 5 years and 6 months of
    imprisonment. On June 24, 2021 he was discovered by police in the bedroom of an
    apartment in which a loaded handgun was found inside the pocket of a coat.
    There is evidence that a medical sticker was found in the coat bearing his
    name, and his mother advised the police that Mr. Daye had rented the apartment
    for his music business. Another loaded handgun was found in an adjacent bedroom
    but has not been otherwise linked to Mr. Daye. Weapons and breach charges were
    laid against Mr. Daye, who now applies to be rereleased pending appeal. The
    onus is on Mr. Daye and although he is presumed innocent of the new charges, he
    is not presumed innocent of the original drug charges.

[2]

In resisting Mr. Dayes release, the Crown does not rely on the
    primary or secondary grounds, but argues based on the tertiary ground that Mr.
    Daye has failed to show that his detention is not necessary in the public
    interest, given the need to preserve public safety and confidence in the
    administration of justice. I am not satisfied that Mr. Dayes release is
    required in the public interest because I am not persuaded that the interest in
    reviewability should predominate over the interest in enforceability.

[3]

Mr. Daye is confident that his appeal will not be long delayed.
    He urges that he is asking only for short-term bail release, and that a short
    period of release lessens the public risk, if any, in his release. There is
    some merit in that submission but the short period pending the appeal also
    reduces the risk to his liberty in postponing reviewability, particularly given
    that the bulk of his long sentence is yet to be served.

[4]

Mr. Daye also relies on the strength of his first ground of appeal,
    given that there are solid grounds to believe that the trial judge erred in
    denying exclusion of evidence under s. 24(2) of the
Charter

after finding a serious breach of Mr. Dayes right to
    counsel based on what may have been an erroneous conclusion that the evidence
    was not obtained in a manner that violated the
Charter

rights of Mr. Daye. Although Mr. Dayes appeal is far
    from frivolous, the ultimate success of this, his strongest ground of appeal,
    depends upon an ultimate conclusion that the evidence must be excluded pursuant
    to s. 24(2). The seriousness of the offence and the absence of a causal
    connection between the breach and the discovery of the evidence materially
    reduce the prospect of that success, as does the fact that the police did not
    seek to use Mr. Daye as a source of evidence during the right to counsel delay.
    I agree with the Crown that although the grounds of appeal cannot be
    discounted, the appeal is not so strong on its face as to tip the balance in
    favour of reviewability, given the competing interests.

[5]

First, there is the seriousness of the original convictions, for which
    Mr. Daye is no longer presumed innocent, and the pending firearms and breach
    charges. Moreover, there is an obvious link between drug crimes and firearms
    offences. The nature of the offences works strongly in favour of enforceability
    and public protection.

[6]

So, too, does the nature of the alleged breach of bail release. It is
    deeply troubling, not only that the alleged breach involves the commission of
    an extremely serious and disturbing offence, but the firearms and breach
    offences were alleged to have been committed in the presence of one of Mr.
    Dayes sureties. This raises serious concern that if released, Mr. Daye may not
    respect the terms of his release and engage in further serious and dangerous
    criminal activity.

[7]

I appreciate that Mr. Dayes release plan is meant to address this and
    that his mother and sister are appropriate sureties. Ultimately compliance
    depends upon Mr. Dayes readiness to comply. I have sufficient concerns in this
    regard that I am not persuaded that Mr. Dayes release pending appeal is
    appropriate.

[8]

I also recognize that a justice of the peace concluded otherwise in
    granting Mr. Daye release pending trial on his new charges, but I assess things
    differently. Given the facts of this case, if there is going to be a breach,
    there is reason to be concerned that the breach will be an extremely serious
    one.

[9]

The public interest in ensuring public safety and public
    confidence in the administration of justice require Mr. Dayes continued
    detention pending appeal.

David M. Paciocco J.A.


WARNING

The President of the panel hearing
    this appeal directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1)
    or (2) of the
Criminal Code
shall continue. These sections of
the
    Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following
    offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon
    as feasible, inform the victim of their right to make an application for the
    order; and

(b) on
    application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. G.B., 2021 ONCA 675

DATE: 20210928

DOCKET: C68235

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.B.

Appellant

Mark Halfyard, for the appellant

Gregory Furmaniuk, for the respondent

Heard: September 24, 2021 by
    video conference

On appeal from the convictions entered
    on August 2, 2019 by Justice Jocelyn Speyer of the Superior Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant was convicted of sexual assault,
    sexual interference, and invitation to sexual touching, all in relation to his
    granddaughter. The appellant was sentenced to four years imprisonment. He
    appeals his convictions.

[2]

The victim was 25 years old at the time of
    trial. She testified about what happened to her between 2000 and 2004, when she
    was 7 to 11 years old.

[3]

The victims parents were incapable of providing
    a stable environment for her and her siblings. Consequently, the children often
    stayed with the appellant and his wife. By all accounts, aside from the abuse, the
    victim and the appellant shared a good relationship when she was a child. Since
    then, the appellant has provided for her financially.

[4]

But there was another side to their
    relationship. The victim described a number of sexual incidents that occurred
    in the appellants home and in his car. The appellant licked the victims
    vagina, rubbed his penis outside her vagina, put his penis in her mouth, and
    penetrated her vagina. These incidents stopped when the victim started
    menstruating at age 11 or 12.

[5]

The victim said that she came forward with her
    allegations because: (a) she was aware of an incident where the appellant
    propositioned and then sexually assaulted her brothers former girlfriend; and
    (b) she was concerned that the appellant might be abusing her younger sister.
    The victim went to the Childrens Aid Society, hoping it would result in her
    sister being removed from the appellants home. The matter was referred to the
    police.

[6]

The appellant testified and denied the
    allegations. He said that the victim was very upset with him a week before she
    made the allegations because he had refused to lend her money to purchase a new
    car.

[7]

In thorough reasons for judgment, the trial
    judge rejected the appellants evidence. She was satisfied beyond a reasonable
    doubt that the appellant sexually abused the victim in the manner that she
    described.

[8]

The appellant submits that the trial judge erred
    in how she addressed the question of whether the victim had a motive to
    fabricate the allegations, thereby requiring a new trial. We disagree.

[9]

The car loan motive was put in play by the
    appellant. The appellant and the victim agreed that the appellant told her that,
    if she could pay all of her own bills at her new accommodation, he would help
    her buy a new car the following year. Their evidence, however, diverged as to
    her reaction. The victim testified that the proposal made sense, was logical
    and that she was fine with it. The appellant said the victim was pissed and
    walked away from him.

[10]

The trial judge rejected the appellants
    evidence on this issue. She said: While the defendant is under no obligation
    to explain why the complainant would fabricate the allegations, the manner in
    which he described the complainants reaction to his refusal of her request for
    a loan appeared to me to be an effort to manufacture a motive for the
    complainant to lie.

[11]

The trial judge also rejected the appellants
    account of how he reacted upon hearing that the victim was pregnant when she
    was 18. She said it was their biggest argument and she moved out and went to
    live with her mother for a while. The appellant said he was happy to hear the
    news and was welcoming of the child. The trial judge rejected the appellants
    account concluding it was an effort on his part to portray himself in a
    favourable light. In combination with his evidence on the car loan, the trial
    judge rejected the appellants testimony denying the allegations.

[12]

The trial judge also addressed the issue of
    motive when considering the victims evidence:

The complainant was an impressive witness. She
    presented as forthright, and careful not to guess about things she did not
    remember. She was clear and articulate. She frankly acknowledged when she could
    not remember or did not know the answer to a question. Apart from the
    allegations and a few other things, her evidence was substantially corroborated
    by the evidence of the defendant, which confirms that she can reliably describe
    her circumstances as a child. She presented in the same thoughtful and
    deliberate manner in cross-examination as she did in her evidence in-chief.
She
    did not appear to hold any grudge against the defendant, and readily
    acknowledged all the good things he did for her. I find that it has been proven
    that she had no motive to lie. The evidence establishes that she knew that if
    she came forward her family, and in particular her children, would suffer as a
    result

For the most part, she kept her emotions in check when she
    testified, but could not hide her sadness when she talked about her loss of her
    relationship with her grandmother, and the support she received from her
    grandparents when things get rough for her. She seemed more upset by that than
    by what her grandfather did to her, which makes sense, given her circumstances,
    and the fact that she maintained a good relationship with him as a teenager and
    young adult.
[Emphasis added.]

[13]

The appellant submits that the trial judge erred
    in finding that there was a proven lack of motive, and by using this finding to
    bolster her credibility. Relatedly, the appellant submits that the trial judge
    erred in relying on the negative consequences to the victim as a result of
    making the allegations as an indication that she had no motive to fabricate.

[14]

We are not troubled by the manner in which the
    trial judge resolved the car loan issue. The appellant introduced this issue at
    trial. There was nothing inappropriate in doing so, but the trial judge, in
    turn, was required to address the issue. On her evaluation of the evidence, she
    found that it was not a viable motive. It was open to the trial judge to make
    this finding on the record before her. In doing so, she instructed herself that
    the appellant had no onus to prove a motive. Her finding is entitled to
    deference:
R. v. Barton
, 2019 SCC 33, [2019] 2 S.C.R. 579, at para.
    132.

[15]

It would have been sufficient had the trial
    judge left it at that. However, her finding is broader. As noted above, the
    trial judge said: She did not appear to hold any grudge against the defendant,
    and readily acknowledged all the good things he did for her. I find that it has
    been proven that she had no motive to lie.

[16]

In the former sentence, the trial judge did not
    find that the victim
did not
hold a grudge; she only held that it only
appeared
to look that way. This was a reasonable finding on the
    evidence.

[17]

The trial judges more categorical finding
    she had no motive to lie  requires more scrutiny. If this was a reference to
    the car loan, for the reasons already given, it was unobjectionable. However,
    given that the trial judge went on to immediately comment on the consequences
    of the victim coming forward, she had no motive to lie assumes greater
    significance.

[18]

As this court has said in a number of recent
    decisions, trial judges must approach an apparent lack of motive to fabricate
    with great caution when assessing the credibility of a complainant: see
R.
    v. S.S.S.
, 2021 ONCA 552;
R. v. Ignacio
, 2021 ONCA 69, 400 C.C.C.
    (3d) 343;
R. v. Bartholomew
, 2019 ONCA 377, 375 C.C.C. (3d) 354. However,
    to the extent that the trial judge may have strayed into forbidden territory,
    we apply the curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. She was careful not to impose a burden on the appellant.
    Nor can it be said that this factor overwhelmed the trial judges assessment of
    the victims credibility. It did not infect the rest of her careful reasons in
    which she explained in great detail why she accepted the evidence of the victim
    and found the appellant guilty beyond a reasonable doubt.

[19]

The appeal is dismissed.

David Watt J.A.

M.L. Benotto J.A.

Gary Trotter J.A.