The status of two insureds as spouses based on a religious ceremony in a foreign jurisdiction is determined first on the basis of the validity of the marriage under the law of the foreign jurisdiction and then by considering whether the marriage is valid in the forum jurisdiction. The insurer has the onus of adducing sufficient evidence to establish the validity of the marriage.
Aviva Insurance Co. of Canada v. Security National Insurance Co.,  O.J. No. 5739, 2017 ONSC 4924, Ontario Superior Court of Justice, November 6, 2017, F. Kristjanson J.
Aviva appealed an arbitrator’s decision that the injured passenger and driver in a motor vehicle accident were not spouses as this affected whether Aviva was the priority insurer for the passenger’s claim for accident benefits.
As the insurer initiating the priority dispute, Aviva had the burden of proving that the passenger and driver were spouses. Where the insurer alleges the parties were married in a foreign religious ceremony, the validity of the marriage is determined pursuant to the law of the foreign jurisdiction first and then considering whether the marriage is valid in the forum jurisdiction. Aviva failed to adduce sufficient evidence to establish the insureds’ country of origin, that the insureds were married in a foreign jurisdiction, the law in the foreign jurisdiction, and whether the marriage would be considered legally valid at the time of the marriage. Further, Aviva failed to adduce evidence that would help determine whether the insureds’ purported religious ceremony abided by Ontario law. The appeal was dismissed as the Court agreed with the arbitrator that Aviva had not established that the insureds were spouses.