Vo v Vo, 2017 ABQB 628

Court of Queen’s Bench of Alberta Citation: Vo v Vo, 2017 ABQB 628 Date: 20171018 Docket: 4801 159939 Registry: Calgary Between: Tuyen Thanh Vo Plaintiff - and - Thai Quoc Vo Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.T. McCarthy _______________________________________________________ Overview [ 1 ] In 1997, Tuyen Thanh Vo and Thai Quoc Vo travelled from their home in Canada to Vietnam, where they both were born, to participate in a traditional marriage ceremony. The ceremony was attended by family and friends.

However, no paperwork for the alleged marriage was obtained in Vietnam or in Canada. Ms. Vo now applies for a divorce and division of matrimonial property. The question is whether their marriage was valid. [ 2 ] The Vos lived with one another for over a decade. They have two children together, and held themselves out as husband and wife to friends and strangers. From this I conclude that the Vos were validly married in Vietnam.

Analysis [3] The primary issue in this matter is whether the Vos were validly married in Vietnam. [4] The validity of a marriage is determined by two sets of laws. The lex loci celebrationis, the law of the jurisdiction in whichthe wedding took place, applies to the event, while the lex domicile, the law of the jurisdiction in which the parties are resident, appliesto their capacity to enter the marriage: Cao v Le, 2007 BCSC 499 at 63.

The Alberta Court of Appeal in Nafie v Badawy, 2015 ABCA 36at para 42, explains as follows: Two elements must exist for a marriage to be valid: "formal validity" relating to the correct procedure in the place where the parties weremarried, and "essential validity" relating to the capacity of the parties as determined by the laws where they were domiciled beforemarriage... [5] This case could be easily decided with evidence of what the law regarding marriage solemnization was in Vietnam in 1997.That evidence is not before me.

I must therefore apply the common law to decide whether or not to presume that the marriage wasvalidly conducted. [6] In Porteous v Dorn, (SCC), [1975] 2 SCR 37, Dickson, J ruled that, “If persons live together as man andwife for such length of time and in such circumstances as to have acquired local repute as married, a presumption that they are legallymarried may arise, which can only be displaced by cogent evidence to the contrary.” Dickson, J confirmed this presumption subsequentlyin Powell v Cockburn, (SCC), [1977] 2 SCR 218. [7] Goodman, J for the Ontario Supreme Court in Lozinko v Bazylok, (ON SC), [1976] OJ No 402, cited to1976 CarswellOnt 164 at para 35, reiterated that the presumption of valid marriage applies where there is evidence of a ceremony andthe parties have co-habited afterwards, especially where through such circumstances they have acquired the reputation of being married.MacKinnon, J for the British Columbia Supreme Court cited this case with approval in Lehoux v Woolward, (BCSC),holding that, “where there is cohabitation and evidence of a ceremony, marriage is presumed in the absence of decisive evidence to thecontrary.” [8] This presumption has been adopted in Alberta.

In Hassan v Hassan, 2006 ABQB 544 at para 7, Romaine, J cautioned that,“[d]espite the strong presumption that parties who undergo a ceremony of marriage followed by cohabitation are lawfully married, courtshave consistently allowed evidence of defect in the formal requirements of the lex loci celebrationis to rebut this presumption,” and Veit,J, reiterated in Le v Le, 2008 ABQB 350 at para 46, that, in Alberta, “evidence of cohabitation and of a marriage ceremony create arebuttable presumption of valid marriage.” [9] An alternative approach was taken by Holmes, J for the British Columbia Supreme Court in Cao.

As in this case, the partieswere married in Vietnam. They did not participate in a ceremony; however, they did possess a “Record of Marriage,” which wasunsigned and lacked any sort of official identification. No evidence as to Vietnamese law was presented at trial. However, the evidence“[did] establish that numerous people in Vietnam were satisfied that the parties were validly married under Vietnamese law”, includingthe couples’ families and apparently the local officials. [10] To conclude, it is appropriate to presume that the couple were properly married in Vietnam if the evidence supports such apresumption.

The couple participated in an engagement, “dam hoi” ceremony in Mississauga. They then held a marriage, “dam cuoi”ceremony in Vietnam. The video of this event is in evidence. Hundreds of guests attended, and there were signs, toasts etc., indicatingthat the Vos were now married. Upon their return to Canada, Ms. Vo learned that her married friends had marriage certificates. When sheasked Mr. Vo about this, she alleges that he told her that it was an irrelevant formality because they were married. The couple heldthemselves out as married while they cohabited.

From these facts I presume that the Vos were validly married in Vietnam. [11] Mr. Vo argues that the ceremony was for show, put together for their families’ sake after discovering that Ms. Vo waspregnant. He argues that both parties knew the wedding was not really valid, and points to the fact that Ms. Vo declared the parties to becommon law partners on tax returns. [12] The “dam cuoi” ceremony was elaborate and very well attended, and certainly would have required significant planning. I donot accept that it was quickly organized to please relatives concerned about their cohabitation. Ms.

Vo acknowledges that she held themout to be common law partners on their tax returns, but argues that this was to access tax benefits. I surmise that Ms. Vo was aware thatthere was no formal proof of their marital status in Canada and used this fact to improve their tax position. [13] The evidence of the tax returns and Mr. Vo’s account of their reasons for participation in the “dam cuoi” ceremony do notrebut the presumption of the validity of their marriage.

I declare the parties to have been legally married in Vietnam, and continue to bemarried for the purposes of the Divorce Act, RSC 1985, c 3 (2nd Supp), and the Matrimonial Property Act, RSA 2000, c M-8. Heard on the 8th day of August, 2017. Dated at the City of Calgary, Alberta this 18th day of October, 2017.

J.T. McCarthy J.C.Q.B.A. Appearances: Charles Fair Mainwood Legal Services for the Plaintiff Traci Bannister Masuch Albert LLP for the Defendant