In this matter, the main issue was whether the wife should pay almost $150,000 as an equalization payment to the husband. However, the husband’s entitlement to equalization was dependent on whether he was truly the wife’s “spouse,” which was contingent on whether his prior divorce to another woman in another country was real and legally valid.
The couple met through a personals ad in the newspaper in 1997. He had left behind a wife and children in Pakistan when he had immigrated to Canada a few years prior. She had been divorced once before and had been living in Canada since 1971. Both parties were Muslim, and in that faith the husband was permitted to have more than one wife. They were married in Canada in 1998, and the second wife was fully aware that the husband had another family in Pakistan. Following the wedding, they both lived together in Canada and held themselves out to family and friends as a married couple.
They later decided to get married under Ontario law in addition to their religious ceremony. In 2002 the husband attempted to get a divorce from his first wife in Pakistan, and he secured what he purported to be a Divorce Certificate from Pakistan. They applied for an Ontario marriage license and were married in Toronto in 2003, based upon this Divorce Certificate.
When they later divorced, the second wife claimed that the marriage was a set up as part of the husband’s premeditated plan to cheat her out of her money and assets. She also suggested that the marriage had never been valid because he was never divorced from his first wife, the marriage had been entered into fraudulently, and that she had been pressured into it. She claimed the Divorce Certificate was a fake and a forgery. As the court explained:
[The wife] urged the court to find that the applicant premeditated a plan whereby he would marry the respondent and after sufficient time had elapsed leave her and take half of her assets.
She stated that after five years of common law he realized that he could not make a claim so he pressured her into marriage and he married her in bad faith to enrich himself. [The wife] alleges that as part of this plan he prevented her from making a prenuptial agreement by vowing on the Koran, while they were on their pilgrimage to Mecca, that he would never make a claim against her money or seek an equalization. Although not specifically pled, it appears that the [wife] was asking the court to take this plot into account as the basis for finding that an equalization of matrimonial property was unconscionable.
On the contrary, the husband denied the existence of a plot; and claimed the marriage had been in good faith and that his Divorce Certificate was valid, and that he was legally married to the second wife. He further claimed that he was a “spouse” and was therefore entitled to equalization under the Family Law Act.
The court then spent time examining the Divorce Certificate, and relied primarily on evidence from the wife herself. The court determined that the document was not fake; and this meant that the following Marriage Certificate was also valid. The court also examined the circumstances of the parties and found that there was nothing that would make the $150,000 equalization payment from the wife to the husband unconscionable, based on their assets at the time of their marriage and later separation.