r v. Bussey, 2017 NLCA 68

Linda Dwyer (appellant) v. Lloyd Bussey (respondent) (15/62) Indexed As: Dwyer v. Bussey 2017 NLCA 68 2 C.A.N.L.R. 327 Court of Appeal of Newfoundland and Labrador Green C.J.N.L., White and Harrington JJ.A. November 24, 2017

Summary: The parties had been living together for several years when in Mr. Bussey’s house in Port de Grave, with no officiant, witnesses, or licence, they exchanged rings that had been blessed by a minister, opened a bible, and read out the verse, “What God has joined together, let no man put asunder.” The ceremony deliberately echoed the formalities of a Christian wedding. Over the next few years they called each other husband and wife and introduced themselves as husband and wife to the community. Upon the breakdown of the relationship Ms.

Dwyer asserted that the parties met the definition of “spouses” in section 2(1) (e)(iii) of the Family Law Act , RSNL 1990, c. F-2 (the Act ), having gone through a form of marriage with each other, in good faith, that is void and having cohabited within the preceding year. The applications judge concluded that the parties could not benefit from the provisions of the Act for the purpose of property division. Ms. Dwyer appealed. Held: Appeal dismissed (Green C.J.N.L. dissenting). White J.A. (Harrington J.A. concurring): As Mr. Bussey and Ms. Dwyer are not married, and could not be considered married under

section 44 of the Solemnization of Marriage Act , RSNL 1990, c. S-19 they can only count as spouses under the Family Law Act if the requirements of section 2(1) (e)(iii) were made out. It is unnecessary to decide what “form of marriage” means. The central question is whether Mr. Bussey and Ms. Dwyer went through the ceremony “in good faith”. Whatever “form of marriage” may mean, it implies an intention to form a conjugal relationship and an intention to be married. So the words “in good faith” are redundant unless they mean “an intention to be legally married”.

The Act is organized around a distinction between “spouses” and “partners”. In contrast to spouses, partners are persons “who have cohabited in a conjugal relationship outside of marriage”. Parts I and II, which ensure a sharing of the matrimonial home and family property, apply only to ______________________________ Leave to appeal to SCC refused, 37921 (August 9, 2018). “spouses”.

Part III, which deals with spousal support, applies equally to spouses and partners. If a couple deliberately avoids the legal consequences of marriage, it is difficult to conclude that they have taken a mutual positive step to bring themselves within the matrimonial property regime. Restricting the matrimonial property regime to couples who believe they are legally married can work real injustice. These situations are partly addressed by the modern law of unjust enrichment. Yet couples who deliberately choose to avoid the legal consequences of marriage may have good reasons for doing so.

Respect for couples’ autonomy requires deference to couples’ choices about how to arrange their own affairs. These arguments have a special force in this jurisdiction because, uniquely among Canadian family-law statutes, the Act automatically places every matrimonial home in joint tenancy. The Act in its current form presumes that there is a bright line distinguishing married from unmarried couples. In particular, the joint- tenancy provisions of

Part I require couples and third parties to be able to ascertain with certainty whether there is a marriage in the appropriate sense. Interpreting “good faith” as an intention to be legally married ensures certainty.

The statutory text, a long and cogent line of jurisprudence, the scheme of the Act , respect for couples’ autonomy, and the need for certainty all imply that a couple only enters a form of marriage “in good faith” if they intended to become legally married. Mr. Bussey and Ms. Dwyer are therefore not spouses within the meaning of section 2(1) (e)(iii) of the Family Law A ct. Green C.J.N.L., dissenting: The issue presented in this case is whether the applications judge erred in concluding that Mr. Bussey could not be regarded as a “spouse” of Ms. Dwyer for the purposes of property division because he and Ms.

Dwyer did not intend to comply with the recognized marriage formalities in this jurisdiction. The scope of section 2(1) (e)(iii) of the Family Law A ct depends in large measure upon the meaning and effect of the phrases “form of marriage”, “good faith” and “void”. The approach to

interpretation of provincial statutes in this jurisdiction is to ascribe to the words used a meaning that reconciles those words with all other indicators of meaning. The reference to “marriage” or “married” in the Family Law Act is not limited to a relationship that constitutes a marriage that is in full compliance with the provincial Marriage Act . It can and does include other relationships that are validly recognized as marriages according to the laws of other Canadian jurisdictions as well as of other foreign jurisdictions. It would also include marriages that are valid on other bases.

The historical and social background to marriage legislation in this province is characterized by a degree of informality that was necessary to allow for social and community life to function. In this case, meaning must be ascribed to the phrases “form of marriage”, “in good faith”, and “void”. The word “form” has a variety of meanings.

The essence of a marriage in Canadian law is the voluntary agreement of two persons, neither of whom is already married, who are not under the age of 16 to cohabit, to the exclusion of all others, in a relationship that is intended to be permanent unless terminated by death, divorce or a decree of nullity.

A ceremonial recognition of some kind, marking an agreement to cohabit in an exclusive permanent relationship would therefore meet the meaning of “form of marriage” if the notion of form could be said to encompass a ceremonial acknowledgement of the commitment that is devised by the parties concerned, rather than being limited to attempted compliance with a pre-existing form. Even if the narrower definition of “form” were to prevail, requiring an attempt to comply with some preexisting formula, an attempt to comply with common law forms of marriage might still fall within that narrower definition.

It was argued in this case that the requirement that the parties go through a form of marriage “in good faith” must mean that they must at the time intend to comply, and mistakenly believe that they are complying, with the legal and procedural requirements of the Marriage Act . The history of the informality of marriage in Newfoundland and Labrador and the absence of an explicit provision making it clear that the Marriage Act is the exclusive vehicle for entering the married state suggests that it may be less important to limit the consequences of marriage only to those who clearly wish to comply with it.

Sub- section 32(2) of the Marriage Act speaks in terms of a marriage “performed in good faith” and “intended to be in compliance with this Act ,” thereby suggesting that the concept of good faith must involve something other than an intention to comply with the legislated marriage ceremony requirements.

Since statutes in pare materia should, to the extent possible, be read consistently with each other, this further suggests that the use of the good faith requirement in sub- paragraph 2(1) (e)(iii) should equally be interpreted as meaning something other than an honest belief in compliance with existing legislation.

While some cases have conflated the requirement of an intention to comply with the law with the notion of good faith, others have rejected this as a narrow construction and concluded instead that to act in good faith requires each spouse to believe, on reasonable grounds, that the marriage is valid and not simply a marriage that complies with the local laws.

This, of course, begs the question whether a belief in “validity” means belief that the marriage was valid in the legal sense of compliance with all local procedural laws, or belief that it was valid in the sense that it was intended to create a relationship that reflected the essence of the married state. In that regard, it is not irrelevant that the common law never required an intent to create a “valid” marriage, just an intent to create a “marriage” which in itself would confer validity as a matter of law.

There is no reason not to ascribe to the words “good faith” in sub- paragraph 2(1) (e)(iii) a meaning that is merely consonant with the general legal understanding of that term, namely, fair dealing and honest intention. This notion of good faith originates in the law of contract and is consistent with the contractual roots of marriage law.

While the knowledge of the laws and intent to comply with them is relevant evidence concerning whether or not a party intends the marriage to be genuine (in the sense of it being a voluntary union for life to the exclusion of all others), the ultimate question is the agreement reached by the parties, not the sanction by the state. Thus, one need not read into the notion of good faith a requirement to comply with the laws of the state. The use of “void” in sub- paragraph 2(1) (e)(iii) may usefully be contrasted with the term “voidable” in sub- paragraph 2(1) (e)(ii).

A void marriage is a nullity for all purposes, whereas a voidable marriage is regarded as a valid and subsisting marriage until a decree annulling it has been pronounced by a court. It is not clear that a failure to observe statutorily mandated marriage formalities will render a purported marriage void.

It is, however, one thing to say that non-compliance with a particular provision may not result in a marriage being regarded as void; it is another thing to say that total non-compliance with or total disregard of all statutory formalities (as was the situation in this case) will not result in a purported marriage being regarded as void. The legislature appeared to assume that complete disregard for the requirements of the Marriage Act could not bring about a legally effective marriage. Such a purported marriage would be “void” in the common sense notion of not having been brought about or engaged.

It is in that more general sense that “void” in sub- paragraph 2(1) (e)(iii) is used. The legislative context points to the idea that marriage, in the sense of strict compliance with the formalities in the Marriage Act , is not a limiting touchstone under the Family Law Act for access to the remedies provided in that Act . The social context supports this

interpretation. Traditionally, most of the legal incidents flowing from family relationships depended on the existence or non-existence of the married state. The last half-century has seen a movement away from defining these types of rights strictly according to whether the married state exists. The emphasis is more on the family unit regardless of whether it technically involved marriage.

Moreover, there have been attempts to eliminate the perceived injustices, flowing primarily from unequal application upon women in conjugal relationships of the rules which affected their financial entitlement on breakdown of the relationship. The mischief to which the reform legislation could be said to be directed is equally present on the facts of the current case. Considering the words alone, one might be tempted to say that there must be an attempt to comply with a pre-existing form that would, if properly followed, be expected to bring about a state of marriage recognized by law.

But the words are not clear. Certainly, the previous case law in other jurisdictions cannot be relied on to conclude that the requirement of “good faith” means that the parties must have intended to comply with the local marriage legislation.

When the words are read in their context, against the language in the rest of the Act and in other statutes in pare materia, and in light of the mischief that the reform legislation addressed, the fact that the history of marriage in Newfoundland and Labrador was marked by degrees of informality and even today our marriage legislation does not explicitly say that failure to comply with it renders a purported marriage void, there is no reason why a “form of marriage” in sub- paragraph 2(1) (e)(iii) should not be interpreted to include a de facto marriage, that is, a relationship marked by some ceremonial recognition of an intention to create a relationship that is of the essence of a marriage, namely a union to the exclusion of all others that is intended to be permanent.

In this case, the parties engaged in a ceremonial arrangement that effectively declared that they were creating a union that was exclusive to them and was intended to be permanent. The applications judge erred in her

interpretation of sub- paragraph 2(1) (e)(iii) when she ruled that the relationship of the appellant and respondent did not result from a “form of marriage” that was entered into in good faith. The appeal should be allowed and the appellant declared a “spouse” within the meaning of paragraph 2(1) (

e) of the Family Law Act .

Appeal dismissed. Cases cited: White J.A.: Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715 Tongue v. Tongue (1836), 1 Moo. P.C. 90 Greaves v. Greaves (1872), 2 P. & D. 423 Alspector v. Alspector, (ON SC), [1957] O.R. 14 (S.C.), aff’d (ON CA), [1957] O.R. 454 (C.A.) Friedman v. Smookler, (ON SC), [1964] 1 O.R. 577 (S.C.) Smith v. Waghorn, 2012 ONSC 496 Isse v. Said, 2012 ONSC 1829 Hassan v. Hassan, 2006 ABQB 544 Lin (Re) (1993), (AB KB), 137 A.R. 1 (S.C.) Re Harris and Godkewitsch (1983), (ON CJ), 41 O.R. (2d) 779 (Prov. Ct.) Debora v.

Debora (1999), (ON CA), 167 D.L.R. (4th) 759 (Ont. C.A.) Reaney v. Reaney (1990), (ON SC), 28 R.F.L. (3d) 52 (Ont. H.C.) Guptill v. Wilfred, 2009 NSSC 44, 275 N.S.R. (2d) 170 Paré v. Bonin, (SCC), [1977] 2 S.C.R. 342 Stephens v. Falchi, (SCC), [1938] S.C.R. 354 Berthiaume v. Dastous, (UK JCPC), [1930] A.C. 79 (P.C.) Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325 Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61 Archean Resources Ltd. v. Newfoundland, 2002 NFCA 43, 215 Nfld. & P.E.I.R. 124 Miron v. Trudel, (SCC), [1995] 2 S.C.R. 418 Kerr v.

Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 Green C.J.N.L. (dissenting): Archean Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43, 215 Nfld. & P.E.I.R. 124 R. v. Pardy, 2014 NLCA 37, 357 Nfld. & P.E.I.R. 49 Lynch v. St. John’s (City), 2016 NLCA 35, 380 Nfld. & P.E.I.R. 13 Best v. Best, 2016 NLCA 68, 1 C.A.N.L.R. 305 Kanafani v. Abdalla, 2010 ONSC 3651, 89 R.F.L. (6th) 189 Guptill v. Wilfred, 2009 NSSC 44, 275 N.S.R. (2d) 170 Debora v. Debora (1999), (ON CA), 116 O.A.C. 196 (C.A.) Isse v. Said, 2012 ONSC 1829, 19 R.F.L. (7th) 413 Alspector v.

Alspector, (ON CA), [1957] O.R. 454, 9 D.L.R. (2d) 679 (S.C.) Ayoub v. Osman, [2006] O.J. No. 1176 Biriniv. Lindstrom, 2009 BCSC 97

Guptill v. Wilfred, 2009 NSSC 44 King v. Newfoundland (Board of Commissioners of Public Utilities) (1992), (NL SC), 99 Nfld. & P.E.I.R. 121 (Nfld.T.D.), aff’d 2000 NFCA 25 (leave to appeal to SCC dismissed, February 1, 2001) Hyde v. Hyde (1866), L.R. 1 P.D. 130 Hounsell v. Hounsell, (NL SC), [1949] 3 D.L.R. 38 (Nfld. S.C.) Counsel: Douglas Moores Q.C., for the appellant; Wayne Bruce, for the respondent. This appeal was heard on January 12, 2016 before Green C.J.N.L., White and Harrington J.A.

The following judgment was delivered on November 24, 2017 by White J.A., concurred in by Harrington J.A., with separate dissentingreasons by Green C.J.N.L. ______________________________________________________________ White J.A.: [1] This appeal involves consideration of the legal nature of a conjugal relationship in order to determine if the parties are “spouses”under the Family Law Act, RSNL 1990, c. F-2 (the Act). BACKGROUND [2] Lloyd Bussey and Linda Dwyer had been living together for a few years on July 12, 2008 when they participated in a peculiarceremony. Alone in Mr.

Bussey’s house in Port de Grave, with no officiant, witnesses, or licence, they exchanged rings that had beenblessed by a minister, opened a bible, and read out the verse, “What God has joined together, let no man put asunder.” [3] In some sense, Mr. Bussey and Ms. Dwyer may have intended to create a traditional marriage. They were living together in aconjugal relationship. Their ceremony deliberately echoed the formalities of a Christian wedding.

Over the next few years they calledeach other husband and wife and introduced themselves as husband and wife to friends, family, and the congregation at their church.They received and preserved cards congratulating them on their wedding. But Mr. Bussey and Ms. Dwyer did not intend to create a legalmarriage. They had both been married before, characterized themselves as widows on tax forms, and knew they were not complying withmarriage law. [4] The applications judge concluded that the relationship of the parties did not entitle them to benefit from the provisions of the Actfor the purpose of property division.

ISSUE [5] Are Mr. Bussey and Ms. Dwyer “spouses” under the Act? ANALYSIS [6] The rules set out in the Act relating to the matrimonial home and family property only apply to “spouses”, which are defined in s.2(1)(e)(iii): “spouse” means either of 2 persons who (

i) are married to each other, (ii) are married to each other by a marriage that is voidable and has not been voided by a judgment of nullity, or (iii) have gone through a form of marriage with each other, in good faith, that is void and are cohabiting or have cohabited within thepreceding year, and, for the purposes of an application under this Act, includes a widow or widower. [7] Mr. Bussey and Ms. Dwyer are spouses if and only if 1. They are married, in which case they fall under either subparagraphs (

i) or (ii) depending on whether their marriage is voidable, or 2. They “have gone through a form of marriage with each other, in good faith, that is void”.

Are Mr. Bussey and Ms. Dwyer Married? [8] The first question is whether there was a marriage. At the time of the ceremony the key provision was s. 44 of the Solemnizationof Marriage Act, RSNL 1990, c.

S-19: Where the parties to a marriage solemnized in good faith and intended to be in compliance with this Act were not under a legaldisqualification to contract the marriage and after that solemnization have lived together and cohabited as husband and wife, the marriageshall be considered to have been validly solemnized, notwithstanding that the person who solemnized the marriage was not authorized tosolemnize marriage and notwithstanding an irregularity or insufficiency in the issue of the licence. (The successor provision, s. 32(2) of the Marriage Act, 2009, SNL 2009, c. M-1.02, is almost identical.) [9] Mr.

Bussey and Ms. Dwyer’s ceremony cannot be brought within this provision. It is not a case where the officiant “was notauthorized to solemnize marriages”. There was no “person who solemnized the marriage”. There was no “irregularity or insufficiency inthe issue of the licence” as there was no licence at all. Further, Mr. Bussey and Ms. Dwyer did not “[intend] to be in compliance with [theAct]”. [10] As Mr. Bussey and Ms. Dwyer are not married, they can only count as spouses under the Act if (1) the ceremony between Mr.Bussey and Ms. Dwyer was a “form of marriage” and

(2) Mr. Bussey and Ms. Dwyer “[went] through it … in good faith”. What does “Good Faith” Mean? [11] It is unnecessary to decide what “form of marriage” means. I am prepared to assume for the moment that the ceremony was aform of marriage. The central question is whether Mr. Bussey and Ms. Dwyer went through the ceremony “in good faith”. [12] Three possible meanings of the phrase “in good faith” have been suggested: 1. An intention to form a conjugal relationship. 2. An intention to be married in any sense—legal, social, religious, etc. 3. An intention to be legally married. [13] Choosing among these

interpretations requires an analysis of the statutory text, the jurisprudence, the scheme of the Act, and thepolicy of the Act. The Statutory Text [14] There is a strong presumption that every word in a statute has meaning: Placer Dome Canada Ltd. v. Ontario (Minister ofFinance), 2006 SCC 20, [2006] 1 S.C.R. 715 at 45. [15] Whatever “form of marriage” may mean, it implies an intention to form a conjugal relationship and an intention to be married. Sothe words “in good faith” are redundant unless they mean “an intention to be legally married”.

Jurisprudence [16] The good-faith exception can be traced to Lord Hardwicke’s Act in 1753, which set out mandatory formalities for entering amarriage in England. The Act provided without exception that any marriage that failed to comply with the formalities was void. Thecourts interpreted that stricture to mean that any deliberate departure from the statutory forms was fraud and invalidated the marriage.

Asmall inadvertent departure would not invalidate the marriage: The King against The Inhabitants of Billingshurst (1814), 3 M. & S. 250,105 E.R. 603. [17] This policy was expanded and given a firm statutory basis in

section 22 of the 1823 Marriage Act. If only one party was awareof the informality, the marriage was valid; if both were aware, the marriage was fraudulent and void: see Tongue v. Tongue (1836), 1Moo. P.C. 90; Greaves v. Greaves (1872), 2 P. & D. 423. [18] Fraud is the antithesis of good faith. [19] Canadian courts have consistently followed that policy. An invalid marriage was formed “in good faith” if the parties thought itwould be legally valid. For cases involving marriage statutes, see e.g. Alspector v. Alspector, (ON SC), [1957] O.R. 14(S.C.), aff’d (ON CA), [1957] O.R. 454 (C.A.); Friedman v.

Smookler, (ON SC), [1964] 1 O.R. 577(S.C.); Smith v. Waghorn, 2012 ONSC 496; Isse v. Said, 2012 ONSC 1829; and Hassan v. Hassan, 2006 ABQB 544; Lin (Re) (1993), (AB KB), 137 A.R. 1 (S.C.). For cases involving matrimonial-property statutes, see Re Harris and Godkewitsch(1983), (ON CJ), 41 O.R. (2d) 779 (Prov. Ct.); Debora v. Debora (1999), (ON CA), 167 D.L.R.(4th) 759 (Ont. C.A.); Reaney v. Reaney (1990), (ON SC), 28 R.F.L. (3d) 52 (Ont. H.C.); and Guptill v.

Wilfred, 2009NSSC 44, 275 N.S.R. (2d) 170. [20] The old Québec Civil Code similarly provided that an invalid marriage would have civil effects if the parties entered into it ingood faith. That is, if the parties intended to comply with the law: see Paré v. Bonin, (SCC), [1977] 2 S.C.R. 342;Stephens v. Falchi, (SCC), [1938] S.C.R. 354. See also Berthiaume v. Dastous, (UK JCPC), [1930]A.C. 79 (P.C.). The Scheme of the Act [21] Like many family-law statutes of the late twentieth century, the Act is organized around a distinction between “spouses” and

“partners”. In contrast to spouses, partners are persons “who have cohabited in a conjugal relationship outside of marriage”: s. 35(c). [22] Parts I and II, which ensure a sharing of the matrimonial home and family property, apply only to “spouses”.

Part III, whichdeals with spousal support, applies equally to spouses and partners. And

Part IV distinguishes between “marriage agreements” (for“persons who are married to each other or intend to marry”: s. 62) and “cohabitation agreements” (s. 63). [23] The logic underlying this two-track regime was discussed by Bastarache J. in Nova Scotia (Attorney General) v.

Walsh, 2002SCC 83, [2002] 4 S.C.R. 325, explaining the Matrimonial Property Act, RSNS 1989, c. 275: 48 … The decision to marry, which necessarily requires the consent of each spouse, encapsulates within it the spouses’ consent to bebound by the proprietary regime that the MPA creates. 49 Unmarried cohabitants, on the other hand, maintain their respective proprietary rights and interests throughout the duration of theirrelationship and at its end. … The general principle is that, without taking some unequivocal consensual action, these cohabiting personsmaintain the right to deal with any and all of their property as they see fit. 50 The MPA, then, can be viewed as creating a shared property regime that is tailored to persons who have taken a mutual positivestep to invoke it.

Conversely, it excludes from its ambit those persons who have not taken such a step. This requirement of consensus …enhances rather than diminishes respect for the autonomy and self-determination of unmarried cohabitants and their ability to live inrelationships of their own design. … [24] This logic remains controversial: see Walsh, per L’Heureux-Dubé J., dissenting; Quebec (Attorney General) v. A, 2013 SCC 5,[2013] 1 S.C.R. 61, per Abella J., dissenting. But in interpreting a statute the Court cannot second-guess the wisdom of the legislativescheme or policy.

The Court’s role is instead to interpret the legislative text to achieve fair and practical results within the parameters thelegislature has set: Archean Resources Ltd. v. Newfoundland, 2002 NFCA 43, 215 Nfld. & P.E.I.R. 124, at paras. 20–22. [25] If, as here, a couple deliberately avoids the legal consequences of marriage, it is difficult to conclude that they have taken amutual positive step to bring themselves within the matrimonial property regime.

Policy of the Act [26] In assessing the fairest and most practical way to interpret the Act, it is important to acknowledge that restricting the matrimonialproperty regime to couples who believe they are legally married can work real injustice. [27] The matrimonial property regime is meant to protect and recognize the equal contributions of partners, especially partners whoare economically dependent in whole or in part. Yet marriage is not a realistic option for some people: see Miron v. Trudel, (SCC), [1995] 2 S.C.R. 418, at para. 153, per McLachlin J.

Other people mistakenly believe until it is too late that unmarriedrelationships have the same legal effects as married ones. [28] These situations are partly addressed by the modern law of unjust enrichment: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R.269. Unjust enrichment, however, can be an imperfect substitute for a statutory property-sharing regime. [29] Yet couples who deliberately choose to avoid the legal consequences of marriage may have good reasons for doing so.

Couplesdiffer in age and stage of life; in commitment; in values; in interdependence; in division of domestic and economic labour; in wealth andearning power; in obligations to dependents, family and others; in aspirations for career or children. The Act is not suitable to everycouple’s circumstances. One size does not fit all. [30] Respect for couples’ autonomy requires deference to couples’ choices about how to arrange their own affairs. See Walsh at 40,43, 50, 54; Quebec v. A at 272–279, per Lebel J.; 435–438 and 442–444, per McLachlin C.J.

Couples can express their choices through amarriage or cohabitation contract: see sections 31, 62, and 63. But, as long as the law distinguishes between the rights of the married andunmarried, couples also may signify their choice of property regime by entering into a legal marriage or deciding not to. [31] These arguments have a special force in this jurisdiction because, uniquely among Canadian family-law statutes, the Actautomatically places every matrimonial home in joint tenancy. The “difficulties” this can create were explained with characteristic vigourand fairness by the then Minister of Justice T.

Alexander Hickman when he first introduced the joint-tenancy system: A man has one major asset, the family home, that he has built, acquired, paid for, worked for over a period of, we will say twenty years.And then he decides to marry and he marries a lady who for one reason or another, [has] either property she inherited from a formerhusband or property she has worked for and bought, [and] she decides… that the matrimonial home will be the one that her husbandowns.

There you have a situation where, should there be a dissolution of marriage, or death, half of that home goes to the wife, whereasher properties are not subjected to that distribution of the marriage assets. Now, sure, there will be that kind of problem existing fromtime to time.

You may have a situation—there was one brought to my attention where you have, we will say, a child of the marriage whois forty or fifty years of age, who has worked hard with her father—her mother is dead—and looked after the family home, and suddenly,the father decides to remarry and then the matrimonial home is owned by the father and his wife; the father dies and the daughter findsherself in a situation where there may be some inequities. (See J. Derek Green and Christopher P. Curran, T. Alexander Hickman: Speeches and Writings from a Life in the Law (St.

John’s, NL:Privately printed, 2000, at p. 107.) The Need for Certainty [32] Another practical problem is that the Act in its current form presumes that there is a bright line distinguishing married fromunmarried couples. In particular, the joint-tenancy provisions of

Part I require couples and third parties to be able to ascertain withcertainty whether there is a marriage in the appropriate sense.

[33] Interpreting “good faith” as an intention to be legally married ensures certainty. Only couples who honestly believe they are legally married will be spouses under the Act . [34] Any other

definitions would create an ambiguous intermediate class of people who are not legally married and do not believe themselves to be legally married, but may nevertheless be spouses under the Act . It is difficult to foretell whose relationships might afterwards be characterized as marital or conjugal. [35] Cohabiting couples often hope or plan, with varying degrees of commitment, to live together exclusively for life. Sometimes couples who are not married choose to pass as a married couple to ease some particular social situation.

It would be difficult for a court to piece together, from fuzzy memories clouded by pecuniary consequences, all the various promises of a conjugal relationship to discern whether the couple’s commitments passed some threshold of firmness. And taking the law as “[t]he prophecies of what the courts will do in fact”, it would be impossible for many couples to tell whether they would turn out to be married or not. (See Oliver Wendell Holmes, Jr., “The Path of the Law” (1897) 10 Harvard Law Review 457.) [36] After a split, this uncertainty would take the form of needless, acrimonious litigation.

The formalities of a legal marriage ensure clear evidence of the parties’ intentions. Creating an intermediate class of semi-marital relationships will invite the parties to present wide-ranging evidence about the nature of their relationship and intentions. [37] People often have mixed or complex reasons for actions; they rarely leave unambiguous evidence of those reasons.

Litigation will often invite a broad analysis of each party’s character and conduct and often an unflattering one that will undermine the statutory policy of keeping the matrimonial property regime separate from any moral evaluation or condemnation of misconduct: s. 23. Conclusion on Good Faith [38] The statutory text, a long and cogent line of jurisprudence, the scheme of the Act , respect for couples’ autonomy, and the need for certainty all imply that a couple only enters a form of marriage “in good faith” if they intended to become legally married. CONCLUSION [39] Mr. Bussey and Ms.

Dwyer are not married and, because they deliberately chose not to enter into a legal marriage, they did not enter into a form of marriage “in good faith”. They are not spouses. I would dismiss the appeal. I would not award costs as the issue considered was novel. Dissenting Reasons by Green C.J.N.L.: [40] This appeal considers the circumstances under which an unmarried couple can be treated as spouses for the purpose of division of property under the Family Law Act , RSNL 1990, c. F-2.

Background [41] The appellant, Linda Dwyer accepted the respondent, Lloyd Bussey’s proposal of marriage, signified by presentation of an engagement ring, in December of 2006. They began cohabiting in Ms. Dwyer’s home in Harbour Grace but subsequently she moved into his house in Port de Grave which was in the process of being finished. They cohabited in that house until there was a breakdown in their relationship in 2014, at which time Ms. Dwyer moved out. [42] Shortly after they moved into the Port de Grave house, Ms. Dwyer and Mr.

Bussey participated in a ceremony with neither minister nor other marriage commissioner present, and without any other witnesses. Mr. Bussey held open a Bible and quoted a passage to the effect: “What God has joined together, let no man put asunder” (It is not clear from the evidence whether the reference was to Matthew 19:6 or Mark 10:9). They exchanged rings. They had not previously obtained a marriage licence as required by the Marriage Act , SNL 2009, c. M-1.02 but they had previously approached their local pastor, told him of their intention to be married and asked him if he would bless the rings.

The pastor testified that he expected to hear from the parties again and that a formal marriage ceremony would be conducted. When he did not hear from them, he assumed they had gone elsewhere to have the ceremony performed. [43] Following the ceremony, they referred to themselves as husband and wife in the community and Mr. Bussey introduced Ms. Dwyer to the congregation at their church and to family and friends as his wife (although he now says he meant ‘common law” wife). Ms.

Dwyer says they held themselves out as being married and provided evidence of communication from friends congratulating them on their wedding. There was also an email from Mr. Bussey to a third party in which he referred to having taken a “vow of marriage” (he now says he meant a “vow of fidelity”). [44] It is accepted by the parties to this appeal that the ceremony in question was not in conformance with the formalities of the Marriage Act .

Further, given the fact that both parties had been previously married and were now widowed, it cannot be said that they did not know the rudiments of what a legal marriage ceremony would generally entail. The APPLICATION JUDGE’S Decision [45] The applications judge ruled that, on the facts as described above, the parties had not gone through a “form of marriage in good faith” within the meaning of sub-paragraph 2(1)(e)(iii) of the Family Law Act and therefore could not be considered “spouses” of one another.

As a consequence, the appellant was not entitled to avail of the provisions of the Act to obtain a division of their matrimonial property.

[46] The applications judge’s conclusion and reasoning is captured in the following passage from her judgment: [27] It follows that the form of marriage under the [ Family Law Act ] to be recognized in Newfoundland and Labrador has to comply with the laws of the Province, meaning, at a minimum, an intention on the part of the parties to comply with the [ Marriage Act ]. Holding ceremonies yourself without a marriage licence, an officiant, or witnesses and exchanging rings can only be recognized in this Province as a common law union, one not recognized by the definition of “spouse” under the FLA for division of property purposes. It is not the intention of

section 2 of the FLA to recognize these situations as a third type of union or marriage for the purposes of property division. [47] The reference to a “third type of union” in the foregoing passage is a reference to the submission during argument that the Act , specifically sub-paragraph (1)(e)(iii), effectively recognized, for the purpose of division of matrimonial property, a category of relationship that was neither a legal marriage nor a “common law” union.

Rejecting this argument, the applications judge held there could be only two categories of conjugal relationships outside of a marriage in compliance with the Marriage Act , one where the parties intended, but failed for some technical reason, to comply with the local legislation, and one which she styled as a “common law union”. In her view, only the former was covered by

section 2: [30] … Anything that does not reach this standard may well lead to a common law union which is not covered by

section 2 of the FLA for property division purposes as that is not the intention of this section. [48] In referring to “common law union” it is clear from the tenor of her judgment that the applications judge was using the term “common law union” in the colloquial sense of two people living together outside of marriage, whether under a cohabitation agreement or not and no matter whether the relationship was of an uncertain duration or an ill-defined character. [49] Having engaged in the foregoing analysis, the applications judge then stated at the very end of her judgment, her judicial conclusion: [31] It is therefore my conclusion the Lloyd Bussey and Linda Dwyer did not have a valid marriage. [50] It should be observed at this point that in purporting to state this conclusion in that way, the applications judge erred by focusing on the wrong question.

The focus of the inquiry was not whether the parties were validly married, a point she recognized earlier in her judgment (paragraph 8). It was whether, notwithstanding non-compliance with marriage formalities, they were nevertheless to be regarded a “spouses” as defined in sub-paragraph 2(1)(e)(iii) for the purpose of property division. One is left with the impression that by stating her conclusion in terms of whether the parties were married, she was concerned that any extended definition of “spouse” would in some manner incidentally recognize another category of marriage relationship.

That of course, was not the case. Even if the parties were to be regarded as spouses for the purpose of property division (which the applications judge held they were not) they would still not be considered “married” for any other purpose. [51] I mention this because this apparent unstated concern may well have influenced the applications judge in her approach to the

interpretation of sub-paragraph 2(1)(e)(iii). Nevertheless, because other parts of her analysis clearly do appear to recognize that what was at issue was whether a non-compliant marriage could qualify to enable a party to meet the extended definition of “spouse” for the purpose of property division, I will proceed to deal with the issue in that context. Issue on Appeal [52] The issue presented in this case is therefore whether the applications judge erred in concluding that Mr. Bussey could not be regarded as a “spouse” of Ms. Dwyer for the purposes of property division because he and Ms. Dwyer did not intend to comply with the recognized marriage formalities in this jurisdiction. Analysis (

a) The Legislation [53] Parts I and II of the Family Law Act provide for the ownership, division and disposition of, respectively, a matrimonial home and matrimonial assets between “spouses.” One of the triggering events that permit an application to court for a division of assets is where “the spouses have been separated and there is no reasonable prospect of the resumption of cohabitation” (s. 21(1)(c)). It is accepted that, assuming the parties are “spouses”, this requirement has been satisfied. [54] The key statutory provision for present purposes is paragraph 2(1)(

e) which defines the word “spouse”. It reads: (e) “spouse” means either of 2 persons who (

i) are married to each other, (ii) are married to each other by a marriage that is voidable and has not been voided by a judgment of nullity, or (iii) have gone through a form of marriage with each other, in good faith , that is void and are cohabiting or have cohabited within the preceding year, and, for the purposes of an application under this Act , includes a widow or widower. [55] For the purposes of this case, the applicable provision is sub-paragraph 2(1)(e)(iii). It is accepted that the parties are not “married” in the conventional sense, nor does the relationship constitute a voidable marriage. Sub-paragraphs (

i) and (ii) are therefore inapplicable. [56] The scope of sub-paragraph (iii) depends in large measure upon the meaning and effect of the underlined phrases in the quoted definition (“form of marriage”, “good faith” and “void”).

[57] The approach to

interpretation of provincial statutes in this jurisdiction is to ascribe to the words used a meaning that reconciles those words with all other indicators of meaning, including the mischief against which the remedial nature of the statute is directed as well as the context of the surrounding legislative text and related statutes and the social context of the provision, and by inference therefrom, the purpose or object of the provision under consideration:

Interpretation Act , RSNL 1990, c. I-19 , s. 16; Archean Resources Ltd. v. Newfoundland (Minister of Finance) , 2002 NFCA 43 , 215 Nfld. & P.E.I.R. 124 at paragraphs 22-23 ; R. v. Pardy , 2014 NLCA 37 , 357 Nfld. & P.E.I.R. 49 at paragraphs 51-52 ; Lynch v. St. John’s (City) , 2016 NLCA 35 , 380 Nfld. & P.E.I.R. 13 , at paragraphs 75- 78 , 79. (b) “Marriage” [58] Before dealing with the

interpretation of sub-paragraph 2(1)(e)(iii), it is also worth considering what the word “married” in sub- paragraphs (

i) and (ii) encompasses, as the answer to that question will help to inform as to the scope of sub-paragraph (iii), in particular, the meaning of “ form of marriage”. [59] It should first be noted that “marriage” or “married” is not defined in the Act . It is tempting to say that they should be interpreted in accordance with the Marriage Act , a related statute. If that were the case, however, it would mean that sub-paragraphs (

i) and (ii) would only catch marriages entered into in this jurisdiction and strictly in accordance with the formalities of that Act . That would mean that persons properly married under the laws of another province, territory or another country would not be considered to be “married” for the purpose of obtaining access to the division of assets provisions of the Family Law Act notwithstanding that they acquired assets in the province and resided and raised a family here. That is not the approach to

interpretation that has been taken in other cases. See Best v. Best , 2016 NLCA 68 (assuming, sub silentio , that if a marriage had been validly constituted according to the laws of Nepal, the parties would be “spouses” for the purpose of the application of the Family Law Act ). [60] It might be possible, of course, to regard an extra-provincial or foreign marriage as invalid (and hence not amounting to “marriage” under sub-paragraphs (

i) or (ii)) because it does not conform to the local Marriage Act and treat it, instead, as a “form of marriage” under sub-paragraph (iii). To do that, however, would require treating all such marriages, though validly created by the lex loci celebrationis, as “void”.

That would be inconsistent with the conflicts of law rules for recognition of foreign marriages. [61] Furthermore, it must be remembered that the constitutional legislative jurisdiction as to marriage and divorce in Canada is assigned to the federal government under section 91(26) of the Constitution Act and that legislative jurisdiction has been exercised by the enactment of the Civil Marriage Act , SC 2005, c. 33 and the Divorce Act , RSC 1985, c. 3 (2nd Supp.). What constitutes the essential attributes of a marriage and access to divorce and corollary relief are uniform throughout Canada.

It would not be sensible to deny access to relief with respect to division of matrimonial homes and matrimonial assets consequent on marriage breakdown under provincial law on the basis that couples validly married in other parts of Canada are not “married” or by allowing access only by treating such a relationship as a “form of marriage” and artificially treating it as a “void” marriage even though it is perfectly valid for other purposes. [62] It is also worth noting that even marriages not fully in compliance with the Marriage Act are in some circumstances nevertheless to be treated as valid marriages.

Sub-section 32(2) provides:

(2) Where the parties to a marriage performed in good faith and intended to be in compliance with this Act were not under a legal disqualification to contract the marriage and after that marriage have lived together and cohabited as spouses, the marriage shall be considered to have been validly performed, notwithstanding that the person who performed the marriage was not authorized to perform a marriage and notwithstanding an irregularity or insufficiency in the issue of the licence. [63] Such non-compliant marriage ceremonies are nevertheless validated ex post facto and would not therefore be considered “void.” This again points to the fact that the reference to “married” in sub-paragraph 2(1)(e)(

i) is not limited to marriages fully in compliance with the procedural requirements of a marriage even under provincial law. [64] As a result of this analysis, I conclude that the reference to “married” is not limited to a relationship that constitutes a marriage that is in full compliance with the provincial Marriage Act . It can and does include other relationships that are validly recognized as marriages according to the laws of other Canadian jurisdictions as well as of other foreign jurisdictions where they are recognized as valid in Canada according to conflicts rules.

It would also include marriages that are valid on other bases, as for example, under common law if common law principles are still recognized as effective. (c) “Common Law” Marriages [65] By “common law marriage”, I am referring to a relationship which, though informal by contemporary standards was nevertheless recognized by the law as a legally valid union and as carrying legal incidents as a result of its existence (a “true” or legally-recognized common law marriage), not a relationship of cohabitation which exists illegitimately outside of the forms recognized by law (the common law marriage, as used in common parlance). [66] The original true common law marriage did not require compliance with specified formalities other than legal capacity to marry and an oral declaration and commitment to live together as husband and wife.

Gushue and Day explain: While the history of solemnization of marriage is in some doubt, this much is certain: in England, prior to the Council of Trent in 1563, notice of marriage was not required and no religious or other ceremony had to be performed. The only requirement of marriage was an oral declaration by the parties taking each other as husband and wife. The marriage was immediately binding where they mutually declared: “I take you as my wife (or husband)”. Where they exchanged declarations that “I shall take you as my wife (husband)”, the marriage became binding as soon as it was consummated. (Raymond P.

Gushue and David C. Day, Family Law in Newfoundland (St. John’s: Government of Newfoundland, Department of Printing Services, 1973) p. 25; see also p. 40) [67] (To the same effect, see P. M. Bromley, Family Law (London: Butterworths, 1971) , p. 26. So long as the declaration was to take

each other immediately as husband and wife ( per verba de praesenti ), the marriage was valid without further formality. See, however, Rebecca Probert, Marriage Law and Practice in the Long Practice in the Long Eighteenth Century: A Reassessment, (Cambridge, UK: Cambridge University Press, 2009)

chapter 2 , which argues that although the contract per verba de praesenti had some legal incidents attached to it, it could not be regarded as a full alternative to a regular marriage, since it did not carry the same legal rights as one celebrated in church). [68] The problem with common law marriages, however, was their clandestine nature.

Following the enactment of Lord Hardwick’s Act , 26 Geo II, c. 33 in 1753 which was enacted “for the better preventing of clandestine marriages”, any marriage (with some limited exceptions) which took place otherwise than strictly in accordance with the rites of the Church of England was declared null and void for all purposes. That Act, however, was expressly declared not to apply to the English colonies. Consequently, the previous common law, to the extent it was received in Newfoundland by the reception of English law doctrine, would have continued to apply. As Trudi Johnson, in her

article “A Matter of Custom and Convenience: Marriage Law in Nineteenth Century Newfoundland”, (2003) 19 Newfoundland and Labrador Studies, No 2, notes, informality was certainly not regarded as vitiating marriage in the colony in and before the early nineteenth century: Often, couples simply declared their desire to be married and a leading community member, usually a merchant, performed the ceremony. The service would be repeated when a clergyman arrived in the harbour.

This customary practice, well-established by the beginning of the nineteenth century, continued in remote areas even after marriage laws were enacted. [69] Although the practices referenced by Johnson appeared to encompass something more than a simple declaration and commitment (by emphasizing the use of a merchant as an officiant) – and as such could be said to be at least an unsophisticated attempt to emulate the mandated requirement after Lord Hardwick’s Act , that some sort of (religious) official preside at the ceremony – the point that is relevant here is that there existed in Newfoundland a practice of developing and using forms of marriage that accommodated local circumstances.

Furthermore, as Johnson notes, even after imperial legislation purporting to regulate marriage in the colony (1817, 1824, 1829 and 1832) and requiring a form of church-regulated ceremony, other forms of marriage were still observed. [70] This is not the place for a detailed recitation of the subsequent history of marriage legislation in Newfoundland, nor indeed for the drawing of any conclusions as to whether common law marriage still co-exists with the formal marriage ceremony provided in the Marriage Act .

It is sufficient to record that the historical and social background to marriage legislation in this province is characterized by a degree of informality that was necessary to allow for social and community life to function. [71] I turn now to the

interpretation of the scope of sub-paragraph 2(1)(e)(iii). (

d) The True Meaning of paragraph 2(1)(e)(iii) [72] A court faced with ascribing meaning to a legislative provision in this province is mandated by

section 16 of the

Interpretation Act to construe the provision “according to its true meaning.” In performing this function, the court must examine the words used and all other relevant indicators of meaning with a view to attempting to reconcile them so as to arrive at the best defensible meaning possible. (

i) Words [73] In this case, meaning must be ascribed to the phrases “form of marriage”, “in good faith”, and “void”.

A. “Form of Marriage” [74] The word “form” has a variety of meanings, including: - a shape, an arrangement of parts - the outward aspect or shape of a body - a person or animal as visible or tangible - the mode in which thing exists or manifests itself - a species, kind or variety - a printed document with blank spaces for information to be inserted - a customary method, what is usually done - a set order of words; a formula - behavior according to a rule or custom - correct procedure - formality or mere ceremony (See The Canadian Oxford Dictionary (Don Mills, Ontario: Oxford University Press, 2004), 2nd ed.) [75] In this case, the parties went through a ritualistic ceremony by opening the Bible, referencing a passage relating to the essence of marriage, declaring their intentions and exchanging rings.

It was a focused ceremony directed to a specific purpose. But is it sufficient

for the parties effectively to create their own “form” or must they attempt to fit their actions within some pre-existing, already-sanctioned, form? A narrower reading of some of the

definitions of “form” referenced above could be said to lead to the latter meaning(“set order of words, a formula”; “behavior according to a rule or custom”). Other

definitions (“formality or mere ceremony” could besaid to include the more expansive meaning because there is no expressed limit in the

definitions as to who could create the form orwhen.

If that is so, that would allow for a form of marriage to be created and applied by the parties provided there was some ceremonialaspect to it that is an objective manifestation of an intention to create a relationship that has the essential features of the married state. [76] (I would also note in passing that even if the narrower definition of form were to prevail, requiring an attempt to comply withsome preexisting formula, an attempt to comply with common law forms of marriage might still fall within that narrower definition.) [77] What are the essential features of the married state?

They are to be found in the Civil Marriage Act: 2.

Marriage for civil purposes is the lawful union of two persons to the exclusion of all others 2.1 Marriage requires the free and enlightened consent of two persons to be the spouse of each other. 2.2 No one who is under the age of 16 years may contract marriage. 2.3 No person may contract a new marriage until every previous marriage is dissolved by death or by divorce or declared null by acourt order. [78] Extrapolating from these provisions we can conclude that the essence of a marriage in Canadian law is the voluntary agreementof two persons, neither of whom is already married, who are not under the age of 16 to cohabit, to the exclusion of all others, in arelationship that is intended to be permanent unless terminated by death, divorce or a decree of nullity. [79] A ceremonial recognition of some kind marking an agreement to cohabit in an exclusive permanent relationship would thereforemeet the meaning of “form of marriage” if the notion of form could be said to encompass a ceremonial acknowledgement of thecommitment that is devised by the parties concerned, rather than being limited to attempted compliance with a pre-existing form.

B. “Good Faith” [80] It was argued in this case that the requirement that the parties go through a form of marriage “in good faith” must mean that theymust at the time intend to comply, and mistakenly believe that they are complying, with the legal and procedural requirements of theMarriage Act. That was the conclusion reached by the applications judge. [81] I would note in passing that, unlike the early English legislation dealing with marriage, the Newfoundland and LabradorMarriage Act does not declare that failure to comply with the Act renders the purported marriage void.

It does not therefore expresslyoutlaw a true common law marriage which was, of course, recognized in early Newfoundland.

This is in contrast to Lord Hardwick’sAct, 1753 (U.K.) which specifically provided that failure to comply with the marriage formalities of that Act rendered the marriage void.The history of the informality of marriage in Newfoundland and Labrador and the absence of an explicit provision making it clear thatthe Marriage Act is the exclusive vehicle for entering the married state suggests that it may be less important to limit the consequences ofmarriage only to those who clearly wish to comply with it. [82] Reference has already been made to sub-section 32(2) of the Marriage Act which makes it clear that non-compliance with certainmarriage formalities (primarily licensure and ceremonial authority) does not affect the validity of the marriage in certain circumstances.Of interest in the present context is that, unlike paragraph 2(1)(e)(iii) of the Family Law Act, sub-section 32(2) speaks in terms of amarriage “performed in good faith” and “intended to be in compliance with this Act,” thereby suggesting that the concept of good faithmust involve something other than an intention to comply with the legislated marriage ceremony requirements, because the requirementof intention is stated as a separate criterion.

Since statutes in pare materia should, to the extent possible, be read consistently with eachother, this further suggests that the use of the good faith requirement in sub-paragraph 2(1)(e)(iii) should equally be interpreted asmeaning something other than an honest belief in compliance with existing legislation. [83] In concluding that good faith did mean an intention to comply with the local legislation, the applications judge relied on anumber of cases from other jurisdictions which, in the context of their own legislation and different issues, assert that to act in good faithmeans to intend to comply with the legislated marriage formalities: Kanafani v.

Abdalla, 2010 ONSC 3651, 89 R.F.L. (6th) 189; Guptillv. Wilfred, 2009 NSSC 44, 275 N.S.R. (2d) 170; Debora v. Debora (1999), (ON CA), 116 O.A.C. 196 (C.A.); Isse v.Said, 2012 ONSC 1829, 19 R.F.L. (7th) 413. None of these cases is binding on this court and, if applied, would lead to a result thatwould be inconsistent with the implication flowing from the use of “intended to be in compliance with this Act” elsewhere but not insection 2.

Furthermore, other cases suggest a conclusion different from that which was arrived at by the applications judge. [84] The cases referred to by the applications judge have their genesis in Alspector v. Alspector, (ON CA), [1957]O.R. 454, 9 D.L.R. (2d) 679 (S.C.), a decision not directly referenced by the applications judge. That case concerned the validity of aJewish religious marriage for which a marriage licence had not been properly issued. A

section of Ontario’s marriage statute, which wasequivalent in substance to sub-section 32(2) of our Marriage Act, permitted a marriage to be considered valid despite irregularity if themarriage was “solemnized in good faith and intended to be in compliance with [the] Act” (emphasis added).The Ontario Court of Appealupheld the lower court ruling that the parties believed that a licence was not necessary for the validity of the marriage and thataccordingly they acted in good faith and intended to comply with Ontario law.

The Court did, however, conclude that only the partyseeking relief from the court needed to establish good faith. Furthermore, its emphasis on compliance with the law of Ontario was madein the context of discussing the express requirement in the Ontario legislation that the marriage must be solemnized in good faith and“intended to be in compliance with” the Ontario Marriage Act. [85] As noted in subsequent cases, including Isee and Kanafani, the legislation considered in Alspector required four elements to bemet for a purported marriage that had been irregularly solemnized to be upheld as valid.

Of those four elements, “good faith” and“intention to comply with the law” were stated as two distinct elements (the other two being absence of any legal disqualification to

contract marriage and cohabitation as a married couple after the ceremony). Thus, on the analysis in Alspector, good faith must meansomething distinct from an intention to comply with the marriage legislation; otherwise, adding a separate requirement of good faithwould be redundant.

This is the same conclusion reached above concerning the effect of inclusion of both the phrases “good faith” and“intended to be in compliance with this Act” in sub-section 32(2) of the Marriage Act. [86] Notwithstanding this, the other cases decided after Alspector and relied on by the applications judge appear to havemisinterpreted its reasoning and have conflated the requirement of an intention to comply with the law with the notion of good faith. [87] On the other hand, other cases decided under family law legislation and marriage legislation have approached the matterdifferently. In Ayoub v.

Osman, [2006] O.J. No. 1176, a traditional Muslim marriage was upheld under Ontario’s marriage legislationeven though there was no evidence indicating that the parties intended to comply with the laws of Ontario. Even though they had notformally married each other, the court found that “there is no real doubt that both parties considered themselves formally married to eachother on August 4, 1991.

They lived together for almost 12 years and had two children.” Accordingly, they fell within the provisions ofsection 31 of Ontario’s Marriage Act which validated certain marriages notwithstanding the absence of a licence or the fact that theperson performing the ceremony was not authorized to do so, and required good faith. See also Biriniv. Lindstrom, 2009 BCSC 97 whichalso relied on subsequent cohabitation as evidence of good faith. [88] The applications judge also relied on Guptill v.

Wilfred, 2009 NSSC 44 as support for the proposition that good faith meant “anintent to comply with local laws.” The legislation considered in Guptill was essentially the same as sub-paragraph 2(1)(e)(iii) of theFamily Law Act. In fact, however, Warner J. in that case rejected, amongst others, Debora with its notion of intention to comply with thelocal marriage law as being encompassed within the concept of good faith.

He referred to this as a “narrow” construction (paragraph 26).He concluded instead that to act in good faith “requires each spouse to believe, on reasonable grounds, that the marriage is valid and notsimply a marriage that complies with the [Nova Scotia] Solemnization of Marriage Act” (paragraph 27). (Incidentally, the Nova Scotiamarriage legislation specifically provided, unlike Newfoundland and Labrador’s, that “no marriage is valid” unless requirements forlicensing and authorization were complied with.) Thus, for Warner J., it was a reasonable belief that a marriage was valid, not that it wasin compliance with the local legislation that was the key consideration.

To that extent the applications judge in the current case misreadGuptill in relying on it to conclude that good faith meant “in compliance with the laws of Newfoundland and Labrador.” [89] This, of course, begs the question whether a belief in “validity” means belief that the marriage was valid in the legal sense ofcompliance with all local procedural laws, or belief that it was valid in the sense that it was intended to create a relationship that reflectedthe essence of the married state.

In that regard, it is not irrelevant that the common law never required an intent to create a “valid”marriage, just an intent to create a “marriage” which in itself would confer validity as a matter of law. In Guptill, the issue of whether theform of marriage was entered into in good faith arose not in relation to compliance with the technicalities of the local marriage legislationbut in relation to whether the husband went through the form of marriage under that legislation reasonably believing that he had thecapacity to marry in light of his having previously been married in St. Lucia.

The issue of capacity to marry (minimum age and/or priorunmarried status) goes to the essence of what a marriage is, as previously discussed. In Guptill, unlike the current case, the resultingunion could not be said to have qualified as a marriage in that sense because part of the essence of the married state was in any eventlacking. Guptill, therefore, cannot be said to be authority for the proposition that failure to believe that the parties were complying withthe local marriage law procedures constitutes an absence of good faith.

That question is left open, because it did not arise on the facts ofthat case. [90] There is therefore no basis for concluding, even if the cases relied on by the applications judge were binding on this province’scourts, that those cases point to the

interpretation of “good faith” adopted by the applications judge in the context of the applicablelegislative scheme, as meaning an intention to comply with the formalities of the local legislation. [91] There is no reason not to ascribe to the words “good faith” in sub-paragraph 2(1)(e)(iii) a meaning that is merely consonant withthe general legal understanding of that term, namely, fair dealing and honest intention. See King v. Newfoundland (Board ofCommissioners of Public Utilities) (1992), (NL SC), 99 Nfld. & P.E.I.R. 121 (Nfld.

T.D.), aff’d 2000 NFCA 25(leave to appeal to SCC dismissed, February 1, 2001), which, citing Black’s Law Dictionary, 5th ed., p. 623, described it asencompassing, amongst other things, “an honest belief, an absence of malice and the absence of design to defraud or to seek anunconscionable advantage”. [92] This notion of good faith originates in the law of contract and is consistent with the contractual roots of marriage law (see Hydev. Hyde (1866), L.R. 1 P.D. 130 at p. 133). In the end, good faith relates to dealings between the parties, not to the relationship of eitherparty to the state.

While the knowledge of the laws and intent to comply with them is relevant evidence concerning whether or not a partyintends the marriage to be genuine (in the sense of it being a voluntary union for life to the exclusion of all others), the ultimate questionis the agreement reached by the parties, not the sanction by the state. Thus, one need not read into the notion of good faith a requirementto comply with the laws of the state.

The requirement of good faith goes to ensuring that the parties are not acting for collateral purposeshaving nothing to do with the primary intention of creating a permanent union to the exclusion of all others. In that sense, the good faithrequirement still has relevance by ensuring that those whose intentions to create a marriage-like relationship are genuine will be protectedeven if they do not strictly comply with the formalities of marriage.

C. “Void” [93] The use of “void” in sub-paragraph 2(1)(e)(iii) may usefully be contrasted with the term “voidable” in sub-paragraph 2(1)(e)(ii).In the context of marriage law, the distinction has been stated as follows: A void marriage is strictly speaking a contradiction in terms, for it is no marriage at all: to speak of a void marriage is merely acompendious way of saying that, although the parties have been through a ceremony of marriage, they have never acquired the status ofhusband and wife owing to the presence of some impediment. In brief, a void marriage is never a marriage either in fact or in law.

Avoidable marriage, on the other hand, is at its inception a valid subsisting marriage; in this case the effect of the impediment is toempower one (or, occasionally either) of the spouses to take steps to have it turned into a void marriage. But whilst, in the case of othercontracts, a voidable contract may usually be avoided by a simple repudiation by one party, a voidable marriage may only be set aside by

a decree of nullity pronounced by a court of competent jurisdiction. (P.M. Bromley, Family Law, p. 58) [94] Thus, a void marriage is a nullity for all purposes whereas a voidable marriage is regarded as a valid and subsisting marriageuntil a decree annulling it has been pronounced by a court.

The resulting nullity decree, however, has retrospective effect back to the dateof the marriage ceremony, thus distinguishing it from the effect of a divorce decree. [95] It is tempting to say that any non-compliance with the formalities in the Marriage Act, however trivial, would automaticallyrender the purported marriage void. However, non-compliance with a legislative provision does not necessarily lead to voidness.

Muchwill depend on the nature and import of the specific requirement, whether it can be construed as mandatory or directory, as well as otherfactors. [96] The grounds on which it is clearly recognized that a marriage will be void include existence of a prior subsisting marriage; lackof capacity; relationships of prohibited consanguinity and lack of consent. Voidability, on the other hand is established primarily on theground on non-consummation. See Gushue and Day, p. 471. The authors also point out, citing Hounsell v. Hounsell, (NL SC), [1949] 3 D.L.R. 38 (Nfld.

S.C.), that inasmuch as the local Newfoundland legislature, subsequent to its creation in 1832, hasenacted no statute respecting annulment, “the present grounds for annulment in Newfoundland are virtually the same as those availablein England prior to 1832” (p. 473). [97] As to whether failure to observe statutorily mandated marriage formalities will render a purported marriage void, in the absenceof an express statutory statement to that effect, the matter is not at all clear.

Bromley observes: If the marriage is solemnized in England, it is not every defect in the formalities laid down in the Marriage Act will render the ceremonya nullity. Whilst public policy requires that these formalities should be strictly observed, the consequences of avoiding any marriagewhere there was some technical defect, however, slight, would be socially even more undesirable (p. 72). [98] The English marriage legislation about which Bromley was writing in 1971 expressly stated that certain defects in form wouldnever invalidate a marriage.

This is similar to the approach taken in sub-section 32(2) of the Newfoundland and Labrador legislation.Even though one might be tempted to infer that by stipulating for non-invalidity in certain circumstances the legislature was implicitlyasserting that other defects would have the effect of invalidity, that is not the approach that was taken in England.

As Bromley states: Although these are the only formal defects which the Act says shall not invalidate a marriage, it is a general rule that, if the irregularity isnot one which the Act expressly states may invalidate it, the defect will never make the ceremony a nullity. Hence, for example, eventhough the parties are aware that two witnesses are not present at the ceremony, the marriage will still be perfectly valid. (p. 73;footnotes omitted.) [99] As already noted above, the current Marriage Act does not contain any express provision which states that non-compliance willinvalidate a purported marriage.

In one sense, it merely provides a mechanism whereby persons desiring to marry may enter into thatstate by invoking the processes in the Act. It does not on its face bar any other form of marriage that might otherwise be recognized bythe law. [100] I conclude, therefore that it is far from clear that the notion of a “void” marriage, as used in sub-paragraph 2(1)(e)(iii) of theFamily Law Act, was meant to signify that the paragraph was meant to apply to all cases of technical non-compliance with any of theformal marriage requirements of the Marriage Act.

But was it intended to be limited to only situations of established categories ofvoidness (bigamy, incapacity, consanguinity and lack of consent) and to exclude any situations involving formal non-compliance?

It isone thing to say that non-compliance with a particular provision in the context of proper compliance with the rest of the formalrequirements may not result in a marriage being regarded as void; it is another thing, however, to say that total non-compliance with ortotal disregard of all statutory formalities (as was the situation in this case) will not result in a purported marriage being regarded asvoid. Voidness in that situation is a natural assumption to make.

Nevertheless, as noted, the Marriage Act, inconsistently, does notdeclare that compliance with the statutory regime is the only way in which a marriage can be created and does not explicitly say that anattempt to create a marriage relationship by other means is forbidden. [101] In light of these uncertainties, I am prepared to conclude that to the extent that the members of the legislature thought about theissue (there is no discussion of this in Hansard), they made the natural assumption (not necessarily, for the reasons earlier given, alegally correct assumption) that the Marriage Act was a self-contained code and that complete disregard of its requirements could notbring about a legally effective marriage.

In other words, such a purported marriage would be “void” in the common sense notion of nothaving been brought about or engaged. It is in that more general sense that “void” in sub-paragraph 2(1)(e)(iii) is used. Indeed, it is thatassumption that forms the basis of all of the submissions in this case and in the reasoning of the applications judge. [102] That being so, in this case, where there was no attempt to comply with any of the provisions of the Marriage Act, we canconclude that sub-paragraph 2(1)(e)(iii) applies to a form of marriage that was employed outside any of the strictures of the MarriageAct.

There therefore need not be any intent to comply with the legislation.

This analysis reinforces the conclusion, earlier expressed, thatthe notion of good faith does not encompass the idea that the parties must intend to fit themselves under the Marriage Act regime. (ii) Legislative Context [103] The use of words in one place in legislation should as a general rule be interpreted in a manner that is not inconsistent with therest of the legislative scheme. [104] I have already referred to the differences between the language in sub-section 32(2) of the Marriage Act and sub-paragraph 2(1)(e)(iii) (“good faith” in one place versus “good faith and intended to be in compliance with this Act” in the other) as indicating that, ifconsistency of usage is to be maintained, the words “good faith” would have to mean something other than an intention to comply withlocal marriage law.

[105] Furthermore, as already noted, the provisions relating to division of matrimonial property and assets between spouses are now situated as Parts I and II in a larger Act that also deals with child and spousal support and the regulation and enforcement of domestic contracts, among other things. Of particular interest in the present context is

Part III which deals with support obligations. It applies to both “spouses” and “partners”:

section 36. The definition of “partner”, which is found only in

Part III is clearly intended to encompass a broader category of relationship than “spouse” which applies throughout the whole Act. It reads: 35. In this Part […] (c) “partner” means either of 2 persons who have cohabited in a conjugal relationship outside of marriage (

i) for a period of at least two years, or (ii) for a period of at least one year, where they are, together, the biological or adoptive parents of a child. [106] Provided the threshold cohabitation time requirement is met,

Part III allows for spousal support claims to be made by and against persons who are living in what is colloquially (but not legally, from a historical point of view) called a “common law” relationship, i.e. cohabiting without having invoked any marriage ceremony and without necessarily having committed to any lifelong union to the exclusion of all others. [107] Given the absence of such an expanded definition in the provisions relating to division of matrimonial assets, it would seem to follow that the notion of “spouses” who have gone through a “form of marriage” would not encompass just any form of agreement or understanding, either explicit or implicit, which simply contemplated some form of cohabitation however transitory or lengthy.

Rather, a narrower concept of cohabitation (though still not qualifying strictly as a marriage under the Marriage Act ) seems indicated under sub- paragraph 2(1)(e)(iii). [108] More generally, the facts, as previously noted, that (

i) marriage, as understood even in sub-paragraph 2(1)(e)(i), is not limited to strict compliance with the Marriage Act ; (ii) the Family Law Act contemplates concepts like “form of marriage” and cohabitation by “partners” ; and (iii) subsection 32(2) of the Marriage Act expressly overlooks non-compliance with the Act in certain circumstances, all point to the idea that marriage, in the sense of strict compliance with the formalities in the Marriage Act , is not a limiting touchstone under the Family Law Act for access to the remedies provided in that Act . (iii) Social Context [109] One further way to discern the purpose of a legislative provision, in the absence of a clear or comprehensive definitive statement of purpose in the statute, is to consider the mischief to which the legislation was directed and, in the light of the new legislative provisions, draw an inference from that mischief as to what the motive for the reforming legislation was. [110] There have generally been at least two themes evident in the reform of family law over the last fifty years.

The first is a decreased reliance on the existence of the married state as the touchstone for defining the legal incidents flowing from a family relationship. The second has been an effort to simplify and eliminate the injustice of many of the rules that traditionally applied, especially with respect to their impact on women. [111] As to the first theme, traditionally, most of the legal incidents flowing from family relationships depended on the existence or non-existence of the married state.

Rights to support, to hold and enjoy property and the right of children to inherit from parents based on the rules of legitimacy (which in turn depended of the existence of a marriage) were effectively defined and constrained by whether the adult persons in the family unit were legally married or not. The last half-century has seen a movement away from defining these types of rights strictly according to whether the married state exists. The emphasis is more on the family unit regardless of whether it technically involved marriage.

Thus, we see situations where persons who are not married may in certain circumstances be entitled to spousal support on the same basis as married persons: Family Law Act, s. 35(c); 36. As well, the right of a child to inherit on death of a parent is no longer dependent on being the issue of married parents: Children’s Law Act , RSNL 1990, c. C-13, s. 3(1), (4) . [112] With respect to the ownership of property, we have seen that the right to avail of the sharing provisions of Parts I and II of the Act extends beyond marriage in the strict sense. The definition in

section 2 makes that clear. The issue is how far that extension was intended to go. [113] The second theme of reform relates to the attempt to eliminate the perceived injustices, flowing primarily from unequal application upon women in conjugal relationships of the rules which affected their financial entitlement on breakdown of the relationship.

In the context of acquisition of rights in property acquired during the relationship, the rules respecting resulting and constructive trusts came to be widely regarded as often unfair in result to women because, amongst other things, of their emphasis on financial contribution at the time of acquisition, which disadvantaged the female partner who stayed at home and was unable thereby to be an equal income earner or who, though an income earner, used her income for other aspects of family maintenance instead of putting it toward asset acquisition. [114] In Newfoundland and Labrador, these injustices were highlighted in the Newfoundland Family Law Study conducted by Dr.

Raymond Gushue in the late 1960s (See Gushue and Day, especially,

Chapter VI). The Study recommended, a

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