Court Cases & Orders

A Husband with An Assumed Identity … An Uncertain Marriage in Florida – What Does It Mean in Ontario?

A Husband with An Assumed Identity … An Uncertain Marriage in Florida – What Does It Mean in Ontario?

This is an Ontario divorce case with unusual facts: in order to resolve the couple’s issues on separation, they first had to determine whether they were legally married. But a further complicating twist was that the husband had been living under an assumed identity, and there were questions as to whether the couple had been married in Florida, which in turn affected the validity of their union in Ontario.

The man and woman started living together in Ottawa in 1993. During part of 1994 and 1995, they lived in Florida, but then returned to Ontario in 1995, where they lived together until they separated in 2009.

They had two children together, one of which is disabled and requires a high level of care. However, the man had not seen the children since their 2009 separation, and – other than $250 – had paid neither spousal nor child support since that time. The woman has been receiving public benefits.

The woman accordingly brought a routine application for an order requiring the man to pay support, but it included a request for a rather unusual declaration: that “John Muir” (the name of the man she married) and “David Waghorn” (the man who appeared in court in response to the support application) are one and the same. Furthermore, as prerequisite to determining the support matter she needed the court to rule on whether she and the man were legally married in Ontario.

First, the court considered of the man’s true legal identity, specifically whether “David Waghorn” had been living under the name of “John Muir”.

The Applicant [woman] testified she and the Respondent [man] started dating and moved in together in 1993. She states that they became engaged in 1994 and were to get married in Ottawa in 1995.

Each party testified that they were acquainted in Ottawa with a male person who is an American citizen from Florida and lived in Ottawa at the time. It is agreed that the parties saw the male individual on a social basis in Ottawa in 1993. The Applicant testified this male acquaintance is one John Muir. The Respondent, without corroboration, argued that the name of this individual is Moir, not Muir.

It is agreed the parties moved to Florida in 1993 and lived there until 1995 when they returned together and lived in the Niagara and then Ottawa area.

The Applicant testified that they decided to live in Florida for a while and obtained identification documents from Mr. Muir in order that the Respondent could work while they were in Florida. The Applicant states the documents the Respondent Mr. Muir received and used in Florida include:

(a) His social security card,

(b) An Hawaiian statement of live birth, and

(c) A Florida voter identification card.

The above documents identify John Sinclair Muir, however none have a photograph.

The Respondent denies that he identified himself as or used the name John Muir at anytime. He testified that the Applicant was married to John Muir and that Mr. Muir told the parties at one point in the past that he had lost his wallet. This is the Respondent’s speculation as to how the above documents came into the possession of the Applicant. The Applicant denies this.

The woman also produced employment applications in the name of “John Muir”, and certain other correspondence. (The man, on the other hand, claimed he could produce the “real” John Muir as a witness in the trial, but then demurred at the last minute, claiming that he could not issue a summons in the U.S. where the real John Muir apparently lives).

After considering all the evidence, the court concluded that the man’s testimony was untruthful, and it believed the woman’s version of events as to the man’s identity.

Next, the court considered whether the man and woman had gotten legally married in Florida. At the outset, the woman conceded that she knew the man’s use of “John Muir” to Florida marriage officials was untrue, but it was done to avoid any inconsistencies of records. She provided evidence that included a Florida marriage licence, a wedding band, and the man’s 2006 and 2007 tax returns, which indicated his status as “married.” The man had also signed as consenting spouse on the mortgage to the couple’s matrimonial home.

Based on this evidence, the court made a declaration that the man and woman had indeed been married to each other under the laws of Florida. However, this led to the next legal question: whether the couple was married under Ontario law, given the fact that they had misrepresented the name of one of them to wedding officials there.

Clearly, the couple had intended to marry each other when then obtained a Florida marriage license, and then participated in a marriage ceremony before a qualified marriage official in that state. They did not intend to limit their marriage to that jurisdiction, and neither was disqualified from marrying the other at the time. The marriage was therefore in accord with the laws of all jurisdictions, including Ontario; it was not invalidated by the misrepresentation as to John Muir’s real identity.

Based on the conclusion that the parties were married under Ontario law, the court went on to determine issues relating to custody, access, and child support issues.

Smith v. Waghorn, 2012 ONSC 496

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.