Lin, Re, (1992) 137 A.R. 1 (QB)

• Judge: Murray, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 14, 1992
• Citations: (1992), 137 A.R. 1 (QB)

Lin, Re (1992), 137 A.R. 1 (QB)

MLB headnote and full text

In The Matter Of Section 23 of the Marriage Act, And In The Matter Of an application by the petitioner, Shun Liang Lin, to have his marriage to Teresa Tang declared lawfully solemnized.

(Action No. 9203-19311)

Indexed As: Lin, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Murray, J.

December 14, 1992.

Summary:

Tang, a Canadian resident, met Lin in China in 1988. They agreed to marry in Canada. In 1990, Lin arrived in Canada and was admitted on the basis that he was Tang's fiancee. A condition of entry was that he marry Tang within 90 days. Eleven days later, Lin and Tang were married in a tradi­tional Chinese wedding ceremony. Lin and Tang believed that they were man and wife and lived under the same roof, intermittently, for a period of some two months. Lin claimed that the marriage was consummated. Tang submitted that it was not. In 1992, Lin applied for a declaration that he was married to Tang and for an order directing the Di­rector of Vital Statistics to issue a marriage licence.

The Alberta Court of Queen's Bench dis­missed the application.

Family Law - Topic 216

Marriage - Invalid marriages - Grounds for invalidity - Under the Marriage Act, R.S.A. 1980, c. M-6, a marriage could be performed by either a clergyperson or a marriage commissioner - An exception allowed a person designated by the Baha'i Faith to solemnize marriage - The Act specified that a marriage licence was required, the words or format to be used and that the person solemnizing the mar­riage provide the parties with a proof of marriage document - Lin and Tang under­went a traditional form of Chinese wed­ding - It was performed by the eldest person in their families - None of the formal requirements of the Act were com­plied with - Lin applied for, inter alia, a declaration that the marriage was valid - The Alberta Court of Queen's Bench dis­missed the application.

Family Law - Topic 234

Marriage - Formalities - Failure to com­ply, effect of - [See Family Law - Topic 216 ].

Family Law - Topic 314

Marriage - Common law marriage - What constitutes - The Marriage Act specified that a marriage had to be solemnized by either a clergyperson or a marriage com­missioner and that a licence was required - Lin and Tang underwent a traditional form of Chinese wedding performed by the eldest person in their families - None of the formal requirements of the Act were complied with - Lin applied for a declar­ation that the marriage was valid on the ground that it was a common law marriage - Tang submitted that common law mar­riages were only valid when it was either impossible to comply with the local law or where the parties had not submitted to the local law - The Alberta Court of Queen's Bench held that it was not a common law marriage - See paragraph 17.

Cases Noticed:

Marriage Law of Canada, Re, [1912] A.C. 880, refd to. [para. 5].

Gilham v. Steele, [1953] 2 D.L.R. 89 (B.C.C.A.), refd to. [para. 5].

Neilson v. Underwood, [1934] 4 D.L.R. 167, consd. [para. 11].

Peppiatt v. Peppiatt (1916), 30 D.L.R. 1 (Ont. C.A.), refd to. [para. 12].

Porteous v. Dora (1974), 2 N.R. 501; 45 D.L.R.(3d) 596 (S.C.C.), refd to. [para. 16].

Kuklycz v. Kuklycz, [1972] A.L.R. 122 (Vic. Sup. Ct.), refd to. [para. 17].

Taczanowska v. Taczanowska, [1957] 2 All E.R. 563, refd to. [para. 17].

Preston v. Preston, [1963] 2 All E.R. 405 (C.A.), refd to. [para. 17].

Caterall v. Sweetman, [1845] 1 Rob. Ecc. 304; 163 E.R. 1047, refd to. [para. 19].

Wylie v. Paton, [1930] 1 W.W.R. 216 (Sask. C.A.), refd to. [para. 19].

Bank of Toronto v. Perkins (1883), 8 S.C.R. 603, refd to. [para. 20].

Petschl v. Buchi, [1926] 3 W.W.R. 598 (Alta. S.C.), refd to. [para. 25].

Statutes Noticed:

Marriage Act, R.S.A. 1980, c. M-6, sect. 2(a), sect. 2(b) [para. 7]; sect. 4(2) [para. 22]; sect. 7(2) [para. 9]; sect. 8, sect. 12 [para. 10]; sect. 23(1) [para. 12].

Authors and Works Noticed:

Davies, Family Law in Canada, p. 17 [para. 17].

Evans, Law and Practice of Divorce in Canada, generally [para. 20].

Counsel:

S. Leach (Snyder & Co.), for the petition­er;

B.K. Yiu, for the respondent.

This matter was heard in Edmonton, Alberta, by Murray, J., of the Alberta Court of Queen's Bench who delivered the follow­ing decision on December 14, 1992.