Lewkowicz v. Korzewich, [1956] S.C.R. 171 (1955)

Supreme Court of Canada

Lewkowicz v. Korzewich, [1956] S.C.R. 171

Date: 1955-12-22

Joseph Lewkowicz Sometimes known as Jozef Lewkowicz (Plaintiff) Appellant;

and

Joseph Korzewich (Defendant) Respondent.

1955: October 12; 1955: December 22.

Present: Kerwin C.J. and Kellock, Estey, Cartwright and Abbott JJ.

Estey J. because of illness took no part in the judgment.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Husband and Wife-Evidence-Marriage-Foreign marriage certificate produced-Presumption as to validity placed in doubt by evidence of prior marriage-Criminal Conversation, Action for-Onus on plaintiff to establish strict proof of marriage relied on-Evidence Act (Imp.) 14-15 Vict. c. 99, R.S.O. 1897, Vol. 3, p. XXIII.

In an action in damages for alienation of affection and criminal conversation the defendant pleaded that the plaintiff's marriage was bigamous by reason of a prior subsisting marriage of the plaintiff's purported wife. At the trial the plaintiff produced a certificate of the marriage performed in England in 1949 in which his wife was described as a spinster. On cross-examination of the plaintiff and his alleged wife, called as a witness for the plaintiff, it appeared that she had in 1946 gone through a form of marriage with one M before a priest in Poland. Later they came to Germany where a prosecution was initiated against M for his subsequent marriage there. The "wife" had been informed by a letter written by a "Summary Court Officer" that the Intermediate Military Government had dropped the proceedings for lack of evidence and that according to the law the Polish marriage was not valid as no civil marriage was performed and the "wife" was entitled to consider herself not married.

Held (Cartwright J. dissenting): That while the certificate of the English marriage was admissible in Evidence (Imperial Evidence Act, 14-15 Vict. c. 99; R.S.O. 1897, Vol. 3, p. XXIII) it could have no more probative value that it would have in the English courts. Its production did not constitute "strict" proof but at most raised a presumption as to its validity and, the presumption having been placed in doubt, the burden resting upon a plaintiff in an acti...

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