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![]() CHAPTER 55. FOREIGN MARRIAGES5.1. GENERALLYA visa officer may refuse an application for permanent residence by the alleged spouse of a sponsor because the alleged spouse has failed to prove the validity of the marriage. 5.2. DEFINITIONSWhere the validity of a marriage is in issue on appeal, the following definitions of "spouse" and of "marriage" set out in section 2 of the Immigration Regulations, 1978, (the "Regulations" ) are relevant: "spouse", with respect to any person, means the party of the opposite sex to whom that person is joined in marriage; 5.3. INTERPRETATIONThe definition of "marriage" in the Regulations includes both the state of being married (essential validity) and the ceremony of marriage (formal validity).1 5.3.1. Formal ValidityIn general, formal validity includes the nature of, and prerequisites for, a ceremony.2 Formal validity is determined in accordance with the law of the place where the marriage was celebrated. Where the law of the place is foreign law, it must be proved as any other fact by the party who is relying on it.3 Therefore, when it is alleged, for example, that a marriage has not been duly solemnized, local marriage law applies and it must be decided whether the marriage in question complies with the formal requirements of that law. If it does not, then the effect of this defect must also be decided in accordance with that same law. In the absence of evidence to the contrary, it must be presumed that the foreign law purports to be exhaustive as to the defects that invalidate a marriage.4 Depending on the applicable law, as proved, the absence of a ceremony may5 or may not invalidate the marriage.6 If it is not proven that the marriage is valid, the applicant is not the "spouse" of the sponsor for purposes of the Regulations and therefore not a member of the family class. The Appeal Division has ruled that where an application for landing is validly refused on the grounds of failure to properly solemnize the marriage, but the sponsor and applicant go through a proper religious ceremony following the refusal, that ground becomes invalid in the context of an appeal which is a hearing de novo. 7 However, the Federal Court, in more recent jurisprudence, has taken a different approach in ruling that the Appeal Division lacks jurisdiction if the applicant is not a member of the family class at the time of the application for landing.8 There are situations where what the appellant tries to establish is that a marriage is not valid. For example, an appellant may argue that a sibling who is included in the parents' sponsorship application is not married (even though the person appears to have gone through a marriage ceremony) and still a dependant, or an appellant in a s. 70 appeal involving a misrepresentation may argue that he or she was not married at the time of landing as a single dependant.9 5.3.2. RegistrationWhere the validity of a marriage is in issue and the marriage has been registered, it must be determined what effect registration has on the validity of the marriage. Registration creates a presumption that a marriage has met the requirements for formal validity.10 In other words, registration constitutes prima facie evidence of the marriage and of the validity of the marriage11 until a court of competent jurisdiction rules otherwise12 or "until compelling evidence is adduced to show that the marriage was not duly solemnized prior to its registration".13 Therefore, even if a marriage has been registered and a certificate presented, if registration is challenged and other evidence on the record about the marriage ceremony is confused and contradictory, it may be found that the sponsor has failed to prove that a valid marriage took place.14 5.3.3. Declaratory judgmentsLittle weight may be given to an ex parte judgment in personam 15 purporting to establish the marriage in question where the record shows that the evidence before the issuing court was incomplete and where the evidence on appeal indicates that the sponsor was married to another person and therefore lacked the capacity to marry his purported wife.16 Little weight may also be given to a declaratory judgment by a court where the judgment fails to refer to the date and place of the marriage in question and where the judgment is obtained after the applicant has received the letter of refusal.17 However, caution must be exercised in concluding that a marriage is not valid in the face of what appears to be a valid Court order.18 5.3.4. Essential ValidityEssential validity includes matters relating to consent to marry, existing prior marriage,19 prohibited degrees of relationship20 and non-consummation of the marriage.21 In cases that raise an issue of essential validity, there is conflicting authority on what law governs; that is, whether it is the foreign law (the law of prenuptial domicile of the purported spouses) or Canadian domestic law (the law of their intended matrimonial home) that should be applied. While the Federal Court of Appeal sanctioned the application of the law of the intended matrimonial home in the Narwal 22 case, it subsequently clarified in its decision in Kaur, Narjinder that the law of the intended matrimonial home is to be applied exceptionally, only in "very special circumstances" such as those that existed in Narwal, that is, where the marriage had been celebrated in a third country, there was no doubt about the good faith of the spouses, and the spouses had a "clear and indefeasible" intention "to live in Canada immediately and definitely".23 The Court was not prepared to apply the law of the intended matrimonial home where the marriage had been celebrated in India, the visa officer did not believe the marriage was bona fide, and no effect could be given to the intention of the spouses to live in Canada because the applicant had been previously deported and was prohibited from coming into Canada without a Minister's permit. The law of the prenuptial domicile was the proper law to apply to such facts.24 5.4. EXEMPTION FROM STRICT COMPLIANCE WITH LAWThe appellant has the duty of providing objective evidence of a customary law of marriage, for example that marriage by proxy is legal in Ghana. International, national or even customary law are not within the general knowledge of the Appeal Division. It is not the sort of information that the Appeal Division can be expected to know or take judicial notice of.25 In cases involving the application of foreign law such as the Hindu Marriage Act, 1955, it may be alleged that custom or usage exempts the purported spouses, who fall within the prohibited degrees of relationship, from strict compliance with that Act. However, where the sponsor claims to be the spouse of the applicant by reason of an exemption to the law based on custom or usage, the sponsor has the onus of clearly proving its existence.26 A declaratory in personam judgment, which rules on the existence of the custom or usage in issue, may be considered to be evidence of its existence.27 The testimony of an expert witness,28 even a transcript of the testimony of an expert witness in another hearing,29 may be accepted as establishing the existence of a custom. 5.5. TIMINGIf the sponsor fails to prove the validity of the marriage, then the applicant is not the spouse of the sponsor for the purposes of the Regulations and therefore not a member of the family class. This general rule applies even if the sponsor and the applicant went through an engagement ceremony prior to the alleged marriage and the applicant was thus a fiancé (a member of the family class) at the time of the application for landing.30 Sometimes, the visa officer who reviews the documentation submitted in a sponsored application might detect a problem with the legality of the marriage. The visa officer may decide to process the application as a fiancée case and, if refused, the refusal would be based on Immigration Regulations 6(1)(d) and the Appeal Division would deal with the matter as a fiancée refusal. In one case involving an alleged prior existing marriage, the sponsor was found to lack the capacity to marry the applicant at the time of their marriage because the sponsor's divorce decree relating to his first marriage had not been made absolute. The Appeal Division held that its jurisdiction did not extend to amending the application for permanent residence by a spouse to that of a fiancé.31 Another panel, however, has held that in some circumstances, the Appeal Division does have such jurisdiction. Accordingly, in a case involving a prior fiancé relationship, the panel found that it would be consistent with the rules of natural justice to convert the spousal to a fiancé application as the marriage had been discovered to be invalid due to an error that could be rectified. The sponsor in this case believed that she had entered into a valid marriage with the applicant at the time of submitting an undertaking of assistance for him. It was not until the hearing before the Appeal Division that it was discovered that the marriage was invalid. When the issue of invalidity was raised, the sponsor requested, and was granted, an adjournment. The sponsor and the applicant then entered into a valid marriage. On these special facts, the panel took jurisdiction. To do otherwise, it reasoned, would impose undue hardship on the sponsor and the applicant: a new application would have to be submitted, and there would be another refusal, essentially on the same grounds, leading to the filing of another appeal, all of which could take several years.32 ![]()
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