Canada has an influx of hundreds of thousands of immigrants each year, and deals with the common issue of the ever-evolving family law in the era of globalisation – are foreign marriages recognized by law in Canada?
Answering this question is crucial as a positive answer can lead to a series of ramifications in family law including decision-making responsibility, property division, support payment and whether the couple needs to obtain a divorce to conclude their relationship.
Would A Foreign Marriage Be Considered Legal In Canada?
A foreign marriage is recognized in Canada under certain conditions including;
- The couple must be legally married in accordance with the laws of the country where the marriage took place.
- The marriage must comply with Canada’s federal laws on marriage and according to these laws;
- A person must be married to one person only since polygamy is outlawed in Canada.
- A person must not be married to a person to whom he/she is related by blood.
Foreign Polygamous Marriage
Generally speaking, if a marriage is legally performed in a foreign country, it is usually valid in Canada and does not need to be registered.
Canadian law only recognizes a marriage as two individuals’ union. Section 293 of the Criminal Code specifically made polygamy an indictable offence, whether or not it is by law recognized as a form of binding marriage. However, this causes issues when dealing with marriages taking place in lots of other countries which involve more than two individuals.
Different provinces may have different approach towards a polygamous marriage that took place in a foreign country.
The court in an Alberta case denied the request for a divorce judgement by the second wife based on the fact that the second marriage which is polygamous is not valid under Canadian law. Notwithstanding the prohibition against polygamy, the Ontario Family Law Act stipulates that “a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law accepts it as valid”. As such, a polygamous marriage is recognized for all purposes under the Ontario Family Law Act, as long as such marriage is valid in the jurisdiction it was solemnized.
Foreign Same-Sex Partnership
The Civil Marriage Act expresses marriage as the legal union of two persons to the omission of all others. If a same-sex marriage was performed in a jurisdiction where it is legally valid, a Canadian court will recognize the validity of the marriage.
However, the essential question is if the same-sex partnership was formed in a jurisdiction where the same-sex marriage is not recognized by law? Would the marriage still be recognized under Canadian law?
Hincks v. Gallardo, 113 O.R. (3d) 654 deals with the aforesaid scenario. The couple entered into a civil partnership in the United Kingdom under the U.K.’s Civil Partnership Act 2004 (U.K.), 2004, c. 33. The U.K. does not permit same-sex marriage. The Civil Partnership Act establishes a parallel regime that offers same-sex partners the same rights and responsibilities as civil marriage by virtue of a civil partnership. The court found the U.K. policy position controverts the Canadian public policy because Canadian law finds discrimination on the basis of sexual orientation strictly prohibited under the Charter.
Canadian law explicitly embraces that only equal access to marriage for civil purposes would respect same-sex couples’ right to equality without prejudice. The court also found that the civil partnership meets the statutory definition of marriage in Canada. By failing to recognize the civil partnership as a marriage would perpetuate the discrimination.
Are Virtual Foreign Marriages Valid?
Moreover, there has been a rapid spike in the demand of virtual weddings amidst the Covid-19 pandemic. It is pertinent to note that Canadian government does not count proxy marriage as a valid marriage for the sponsorship of family-class but the couples who have solemnized their marriages virtually still have some options out there. The Canadian Immigration authorities may recognize virtual weddings if they follow the legal requirements; for example, if it was registered in a country where virtual marriage is legal.
There is a plethora of tricky situations where a foreign marriage may face the risk of not being recognized in Canada. For tailored analysis of your situation, please speak with one of our skilled family lawyers at Ayaz Mehdi Professional Corporation for professional legal advice.
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