Answer:
1. Definition of Spouse under the Family Laty Act
As Harry made a lot of money during their marriage, his net family
property was greater than Esther's at the time of his death.
Unfortunately for Esther, the Ontario Court of Appeal decision in
Debora v. Debora' suggests that she would not be entitled to elect to
take an equalization payment.
In Debora v . Debora, a couple was first married by a rabbi in a ritual
religious ceremony and only later married in a civil ceremony. When
they divorced, the wife would have been entitled to a l4rger
equalization payment if the court accepted the proposition that a
religious ceremony was a "marriage" under the FLA.
Applying the Court of Appeal decision to our situation, Esther
would not have rights under rhe FLA because having married only in
a religious ceremony, she does not come within the definition of
"spouse" under fhe FLA.
2. Was Harry's Will Revoked?
By virtue of the SLRA, a will is revoked by marriage.e Does
Esther's ritual religious marriage alone revoke Harry's previous will?
I have found no case law on the issue, but the definition of "spouse"
inthe FLA and the SLRA are virtually identical. The policy issues are
the same. lf Ontario's Court of Appeal decided that a religious Jewish
marriage alone would not qualify a spoLlse for property rights under
the FLAin Debora v. Debore,tu it is certainly arguable that a religious
ceremony alone would not have the effect of revoking the couple's
Wills. However, in my view, it would be a mistake to assume that it
would never revoke the Wills,
Decisions often turn on the facts specific to them. The Court of
Appeal decision turned on the fact that both husband and wife knew
that the religious marriage they entered into was not a legal marriage
in Ontario.r I If Esther, in good faith, believed that her ritual marriage
was being conducted pursuant to Ontario law and she lived with
Harry as husband and wife, then it is arguable that the legislation
would deem the union to be a valid marriage that would revoke the
will.
When a person dies and he or she has no will then the person is said
to die intestate. That means that the estate assets are distributed
according to specihc rules of inheritance set out by the Legislature.l3 If a spouse dies without a will, his or her spouse is entitled to a
preferential share of the estate (the first $200,000) and one-third of the
balance where there are two or more children.
lf Harry had no will, Esther's entitlement to inherit under the laws
of intestacy depends on whether she is a "spouse" as defined under the
SLRA The definition is virtually the salre as it is under the FLA.
Given the Court of Appeal's decision in Debora v. Debora,ta it is
unlikely that a woman who married only in a religious ceremony
would have the same rights under an intestacy as a person married
under a civil ceremony unless the court found that she believed the
marriage was being conducted in accordance with the laws in
Ontario. A decision by the Supreme Court of Canada suggests that a
court would not interfere if the decision to be married only by a rabbi
and not according to Ontario law was based on the premise that the
couples taking such action intended not to form an economic union
with one another norrnally associated with a civil marriage.ls
4. Definition of Spouse in the context of Support Rights
and Common Law
Explanation:
Those who marry only in a religious cerernony may be entitled to
spousal support as dependents under Part V of the.SLRlrÓ as long as
This case dealt with the issue of whether common law
spouses or gay and lesbbian couples should be entitled to the property rights
under the .SARI when there are not legally married. Relevant to our
discussion are the comments in paras. 54-56 where the court says, ".
parties who, by intermarrying, must be presumed to have a mutual intention to
enter into an economic partnership. Unmarried cohabitants, however, have
not undertaken a similar unequivocal act. . . . In my view, people who marry
can be said to freely accept mutual rights and obligations. A decision not to
marry should be respected because it also stems from a conscious choice of
the parties."
Snafus of Religious Marriages in Ontario Law 133
they had lived together as man and wife continuously for a period of
not less than three years. They would have the same rights as any
other common law spouses. Under the legislation, the court would
determine the appropriate amount of support by considering how
Esther and Harry organized their relationship and her needs and
circumstances.
5. Conclusion
The issues raised in this paper impact on many Canadian citizens
who seek to solemnize their marriages outside the Marriage Act.To
take such steps is a recipe for misunderstanding and an invitation to
future litigation.
