Written on behalf of Feigenbaum Consulting
A recent Ontario court case decided whether a wife could obtain the annulment of her marriage based on non-consummation and immigration fraud. The judgment provides guidance for those deciding whether to seek a marriage annulment or a divorce under similar circumstances.
The parties were married on August 16, 2016. They separated on January 10, 2017.
The wife began her application for the annulment of their marriage on March 9, 2018. Her application at trial was uncontested; though she served the application to her husband, pursuant to an order allowing her to text him the copies of the application, he never responded. The husband did not file an answer to the application nor did he participate in any way in the proceedings.
The Wife’s Arguments
In support of her application, the wife claimed that the spouses never lived together, had no children and stated that “there was no relationship”, she “was used”, and she wished “to start a new life”. Additionally, she filed affidavits stating that after the marriage, her husband went to his separate home, that the marriage was never consummated and that she believed the marriage was a fraud from the outset intended to assist the husband to obtain immigration status.
Based on these facts, the wife raised two arguments for the annulment:
- the marriage was not consummated; and
- her husband only married her for immigration purposes.
She submitted that the arguments, if successful, should result in the marriage being voidable.
At the outset of the decision, the court stated clearly that “[b]ased on the evidence before me, neither of the above arguments allow an annulment to be granted in this matter.”
Regarding the non-consummation argument, the court explained that, historically, this argument had required evidence of permanent physical impotency. Over time, this requirement had been expanded to include evidence of psychological factors that effectively created a permanent psychological impotency. The court stated that:
“Non-consummation due to “mere refusal” or “wilful refusal” to engage in sexual intercourse is not sufficient.”
As a result, the court found that there was no evidence presented to find that a permanent impotency existed that would allow for the annulment based on non-consummation. Rather, the court found that the evidence supported a finding of wilful refusal on the part of the husband to consummate the marriage, which was not sufficient to annul the marriage.
The court also rejected the wife’s second argument, explaining that the Ontario Court of Appeal has long held that immigration fraud cannot be relied upon to grant an annulment.
Based on all the evidence, the court therefore dismissed the wife’s request for annulment. The court then gave her leave to amend her application to seek a divorce. However, the court stated that if the wife wanted to continue with the proceeding to obtain a divorce, she would need to file a certified copy of the registered marriage certificate to evidence the date and place of the marriage, which she had not done in the annulment proceeding.
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.