On January 31, 2013, a man was injured while riding as a passenger a car driven by a man (the “husband”) insured by Aviva Insurance (“Aviva”). However, his wife (the “wife”) also had an insurance policy through Security National Insurance (“Security”). The passenger sought benefits from Aviva, who in turn commenced a priority dispute arbitration against Security on June 5, 2014 in order to determine which insurer was liable to pay. It was agreed by both insurers that Security would be responsible if the couple was married. However, the case took an interesting twist when it could not be agreed as to whether they were married at all.

The arbitrator’s decision

The case went before an arbitrator, who heard evidence from both parties. Aviva argued that the husband and the wife had been married in Somalia. Meanwhile, Security took the position that the couple were not spouses at the time of the accident, and that Aviva had failed to provide any evidence that the couple were actually married in accordance with the laws of Ontario or any other jurisdiction.

The husband provided a sworn statement stating the couple were married in Somalia, but had separated in 1999. However, neither the husband or the wife were able to provide any documentation relating to the ceremony. The marriage had not been registered in Canada, nor were there any divorce proceedings on record.

The wife also stated she considered herself to have been married to the husband, and that they had been divorced or separated since 1999. The couple had six children together, including one born three years after they claimed to have separated. She included the husband as an additional driver on her insurance policies from 2007 to 2014, and listed him as her spouse in a 2015 policy.

There was no evidence at all pertaining to the couple’s wedding. Instead, Aviva presented to the arbitrator evidence about Islamic Somali wedding ceremonies, stating it is possible that no documentation may have resulted from such a ceremony. However, the arbitrator noted that there was no evidence presented that the husband or wife were Islamic, or even that they were from Somalia, going on to state it would be inappropriate to assume they had gone through an Islamic marriage ceremony in Somalia. Without having establishing the date or place of the marriage, the arbitrator was left to conclude that the couple were not married as it relates to the issue.

On appeal

The court agreed with the arbitrator’s decision, stating:

“I reject Aviva’s submission that it led sufficient evidence establishing that (the husband) and (the wife) were married in Somalia and that their purported religious ceremony abided by the laws of Somalia. Aviva not only failed to lead sufficient evidence, but relied on inappropriate stereotypes and assumptions in making its arguments. There is simply no evidence establishing that the wedding took place in Somalia. There is no evidence that (the husband’s) country of origin is Somalia, and it was reasonable for the Arbitrator to find that there was insufficient evidence to make the inference based only on the language of the interpreter. (The husband’s) Muslim faith provides no indication whatsoever of his country of origin. A person who is Muslim can be from any country. Even if Aviva had established that the wedding took place in Somalia, it did not provide sufficient evidence on Somali law and whether the marriage would be considered legally valid at the time of the marriage. Indeed, a printout from a website, general statistics, and a Provisional Constitution adopted at least a decade after the purported marriage simply does not meet the evidentiary standard the case law has articulated.  As Security National submitted, ‘to recognize a foreign marriage based on such deficient evidence would allow claimants to avail themselves of insurance benefits solely by claiming that at some point several decades ago they participated in a marriage ceremony in an unknown country under unknown circumstances.  To allow this would run contrary not only to public policy but also to the administration of justice.’”

You may want to consider pursuing a claim for damages if you have been involved in a motor vehicle accident. The personal injury lawyers at HMC Lawyers have the experience needed to help you navigate your settlement, and the compassion to help lessen the stress associated with motor vehicle injuries. Please reach us online or call us at 1-800-480-3534 to speak with one of our lawyers.