Court Cases & Orders

Court Rules Woman is Not Actually Man’s “Spouse” – But is She Trespassing in His Home? 

Written by Russell Alexander / (905) 655-6335

The facts in Anthony v. Oqunbiyi were a little unusual:  A former couple were in dispute over several things, beginning with the key question of whether they were actually married to each other. 

The woman said they’d had a religious marriage ceremony at their church in 2004. This was while the woman was pregnant and they were living together.

The man conceded that the ceremony took place. But he said the 2004 marriage was not valid, since he was still married to someone else at that time.  His divorce did not take place until a year later, in 2005. In the man’s view, this meant the woman was legally not his “spouse”, and the home they shared was not a “matrimonial home” subject to Family Law Act (FLA) equalization. He asked the court to make a declaration accordingly, and to order the woman must vacate his home because she was trespassing.

Eager to preserve her rights under the FLA, the woman explained she simply did not know the laws in Ontario regarding marriage, since she had arrived in Canada from Nigeria. She had married the man “in good faith”, in keeping with the provincial Marriage Act.  That legislation deemed such marriages to be valid in some cases.  

But this wasn’t one of them, the court said.  

The problem was that the “good faith” marriage provisions under the Marriage Act simply did not apply if one of the parties was legally disqualified from getting married in the first place – for example by still being wed to someone else. As the court explained:

In this matter, while both the [man] and [woman] may have intended the ceremony to be a marriage ceremony, which I note that the [man] specifically denies, and while they lived together as common law spouses for a number of years, the marriage was void [from the outset] as the [man] could not enter into a marriage while married to another spouse. 

I therefore declare that the parties are not married. 

With that preliminary ruling in place, the woman’s spousal and possessory rights to the home evaporated.  Title was in the man’s name, so legal ownership was clear.

This left the court to resolve whether she might have other common-law rights, for example arising from a constructive trust.  But since the woman did not make these kinds of claims in her pleadings (thinking all along she was a spouse), the court invited her to apply to add them. 

As for declaring her a trespasser who must vacate the man’s home: The court was unprepared to make that ruling.  She had evidence that she had contributed to the home’s upkeep, which might support a constructive trust claim.  Depending on whose evidence could be trusted, the woman had been living in the man’s property since at least 2017, and maybe earlier.  To this, the court said:

In my view, there has been some acquiescence to the [woman’s] presence which seems at odds with a claim she is trespassing, particularly if she has been contributing to some degree to the carrying costs of the property.  

She had lawful justification to remain in the property, the court said, and there was still many other hotly-contested issues between them, even including their date of separation (they were 10 years apart on that one). Provided the woman added a constructive trust claim to her pleadings, she could stay in the home until trial, when all remaining issues would be resolved. 

Full text of the decision:

Anthony v. Oqunbiyi, 2023 ONSC 861 (CanLII)

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About the author

Russell Alexander

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