Court File and Parties

COURT FILE NO.: FS-17-21855 DATE: 20180727 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M.A., Applicant AND: B.B., Respondent

BEFORE: Kiteley J.

COUNSEL: Applicant, self-represented Respondent, not present

HEARD: May 23, 2018

Endorsement

Background

[1] On November 6, 2017, the Applicant issued an Application in which she asked for an annulment of the marriage that purportedly occurred on August 14, 2015 at a mosque in the Greater Toronto Area. The Application was served on the Respondent in England and he acknowledged service. He did not file an Answer.

[2] The Applicant submitted a motion for an uncontested trial based on her affidavit sworn January 22, 2018. I declined to consider the request in writing and directed the Trial Co-ordinator to schedule an uncontested trial in person. I directed the Applicant to provide a factum.

[3] On May 23, 2018 the Applicant attended and gave evidence. She did not have a lawyer of record but she had had assistance from a lawyer who had prepared a factum and book of authorities. The Applicant’s brother accompanied her and, given her evidence about the circumstances of the purported marriage, I asked him to testify.

[4] The Applicant gave evidence and I asked many follow up questions. She had read the factum and was familiar with the factors outlined in S. v. S. and in R.H. v. R.T. as relevant to the request that the marriage be annulled. She described the cultural and familial pressure that had been put on her to participate in the marriage ceremony. She said that she had never met the Respondent, they had never lived together and had not consummated the marriage.

[5] During her evidence I asked her to describe the circumstances of the marriage ceremony. Based on the description that she and her brother gave, I raised a concern that the elements of formal and essential validity had not been satisfied.

[6] At the conclusion, I reserved decision and I made an endorsement specifying what I required, namely, that by June 6, 2018, the Applicant or her lawyer:

(a) provide evidence by affidavit as to Exhibit 1 (Record of Solemnization of Marriage) namely: who the officiant was and whether he has a licence to marry; and who the witnesses were; (b) provide a factum and book of authorities as to the criteria necessary to establish formal validity and essential validity of the marriage and whether those criteria have been met in this case; (c) provide evidence by affidavit as to any documents signed by the Applicant on or before August 14, 2015 other than the application for a marriage licence.

[7] I obtained the transcript of the hearing on May 23 and arranged for it to be forwarded to the Applicant to be provided to her lawyer.

[8] On June 7, 2018, the Applicant filed her affidavit sworn June 4, 2018 dealing with paragraphs (a) and (c) and a factum and book of authorities dealing with (b).

The Evidence

[9] I am satisfied with respect to the evidence of duress and with respect to non-consummation. I also accept the evidence of the Applicant as to the circumstances in which, in 2017, in anticipation of the cultural marriage in 2018, she reached out to her brother and he supported and assisted her in persuading members of her family that she could take steps to have the marriage annulled. I have not included excerpts from the evidence on those subjects.

[10] On the subject of formal and essential validity of the marriage, I will review the evidence from the transcript of the trial on May 23, 2018 and then the contents of the affidavit of the Applicant sworn June 4, 2018. The following is an excerpt from the evidence of the Applicant at page 22:

THE COURT: Q. And where did the wedding take place? A. We didn’t have like a specific wedding. The wedding like it was just the actual signing, that’s what I would say would be the marriage – the marriage was actually like between our culture, the cultural marriage is still to take place and before that, I said, no. So in my head, this is not really a marriage because I haven’t gone through with all the things that come along with the actual marriage. This was just the signing on the marriage licence. After this, like within our culture, there’s lots of like ceremonies that take place that declare you as husband and wife that were still meant to take place because they didn’t happen at that time. So this was just the actual signing on the marriage licence, this date, August 14th.

[11] The following excerpts are from the evidence of the Applicant in pages 26 to page 35:

THE COURT: Q. All right. So your mom and your dad and your Toronto cousins, not your U.K. cousins. Your two brothers, a couple of cars. You all went to this mosque and you met somebody a person whose signature might be middle of the line there. Is that right? A. I didn’t personally meet him because there’s a separation between the guy’s side and the girl’s side. So I was just sitting on the girl’s side. My dad met him on the guy’s side. THE COURT: Q. Okay. I really need you to give me precise details. Don’t – I can’t ask you questions when I don’t know what happened, all right. Start from when you arrived at the door… A. Okay. THE COURT: Q. …and tell me what happened step by step when you left, okay? A. Okay, so we entered the mosque and when we entered the mosque, me and my mom and a few other cousins… THE COURT: Q. Females? A. Yes. THE COURT: Q. Females are all entering together? A. Yes. THE COURT: Q. Okay. A. So we sat on the female side, which was in the basement. So were sitting over there and the men, which would say, my dad, my uncle and whoever else went with him, they went to the men side and they were over there. So they sat down over there and my brothers… THE COURT: Q. And your brothers? A. Yes. THE COURT: Q. And they, okay, your dad, uncle and the groom? A. I – I… THE COURT: Q. You don’t know? A. I don’t know as I didn’t meet him. THE COURT: Q. Okay. The men went – entered the mosque in the same entryway but you go – they went upstairs? A. Yes. There’s different entrances so we went from the basement entrance; they went from the side entrance that goes upstairs. Like specific entrances for… THE COURT: Q. Right. A. Yes. THE COURT: Q. Okay. Men through, you call the side entrance or the… A. The side entrance. THE COURT: Q. Okay. But they go up? Women downstairs? I’m gesturing. A. Yes. THE COURT: Q. And men go upstairs, all right, and then what happens? A. Then we sat down on the girl’s side; they sat down on the men side and… THE COURT: Q. On different floors? A. On different floors over the basement. They were at the top. THE COURT: Q. How do you know they sat down? You weren’t there? A. I’m assuming they sat down because we sat down. THE COURT: Q. Okay. A. I’m assuming because before that, if the bride appears, so everyone goes to the mosque for Friday prayers so for the Friday prayers you sit down first. You listen to like the actual Friday prayers. THE COURT: Q. Okay, stop. A. Yes. THE COURT: Q. I’m really trying to get a chronology here. You have arrived two-ish on Friday August 14th. When were prayers? I know they’re staged throughout the day but what prayers had just happened? A. The Friday prayers. It’s called “Juma” so if you want me to spell it? THE COURT: Q. Yes. A. J-U-M-A. THE COURT: Q. At what time were the Friday prayers? A. They were around 1:30/1:40 something. THE COURT: Q. And were they finished when you arrived and went to the basement or still happening? A. They were still happening. THE COURT: Q. Okay. A. The – there’s like speeches that happened before the actual thing – before the actual prayers so those had finished and we were there for the actual prayer. THE COURT: Q. Got it. A. Yes. THE COURT: Q. Okay. So did you go there at a time to coincide with the end of Juma? A. Yes, we went to pray. THE COURT: Q. You picked the time deliberately? A. Yes. Like they need – wanted to go for the after prayers so we went at that time. THE COURT: Q. Was that part of engaging prayers with the ceremony of the wedding or it just happened to fit timewise? A. It just kind of happened to fit timewise but we wanted to read the prayers so we went for the prayers and then after that they kind of – they had like announcements after the prayers. THE COURT: Q. Okay. All right so you’re in the basement with all the other females. You finished the end of the prayers and then what happens? A. And then they have announcements going on like on the mike so we can hear them in the basement and… THE COURT: Q. The announcements are actually made upstairs where the men are, right? A. Yes, where the men are. THE COURT: Q. Right. A. So they do the announcements over there. THE COURT: Q. Hm-mm. A. So then at that point they just made an announcement regarding me about my – you can say marriage so regarding the marriage, they made an announcement. THE COURT: Q. What was the announcement? Tell me if – as much as you remember it. A. The announcement was like they said the day, so on this date, M.A. – well, they said B.B. will get married to M.A. on this date or they have gotten married. So let’s just pray for them. That’s what happened like because we had signed the papers so they said let’s pray for them for their marriage to be successful. You can say that’s what the announcement was for. THE COURT: Q. Okay, you just said something quite important. You said, “Because we have signed the papers, the announcement was B.B. and M.A. have married and let’s pray for them,” right? “Because we have signed the papers?” When did you sign the papers? A. The paper that I signed at City Hall. That’s the paper that I’m talking about. THE COURT: Q. The marriage licence? A. Yes. THE COURT: Q. Okay. A. That’s what I’m talking about. THE COURT: Q. So you have the record of Solemnization of Marriage in front of you. That’s not the paper we’re talking about here? A. No, this – I don’t know if this is the same paper. THE COURT: Q. It’s a different paper. A. It’s a different paper, yeah. The City Hall one was different. THE COURT: Q. Right. A. So you sign and then they send you the – this part, I think they send it to you through the mail for your marriage licence. THE COURT: Q. Okay. I’m pressing you because the chronology is extremely important so you need to work with me on this. A. Yes. THE COURT: Q. The announcement was B.B. and M.A. have married so let’s pray for them. I’m summarizing. Do I have that right? A. Yes. THE COURT: Q. And that was a request, an invitation by announcement that the men who were on their side and the women who are on their side would pray for B.B. and M.A.? A. Yes. THE COURT: Q. So then what happened? A. Then after that we were – I was on the girl’s side so we just stayed there and once it was done, we went home. THE COURT: Q. Once it was done? What does that mean? A. After the announcement happened and all the announcements were done like they made all the announcements, then we went home. I went to my house. THE COURT: Q. So you and the other women. . . A. Yes. THE COURT: Q. …go back to the parking lot, by then the men, your dad your brother and the uncles were back in the parking lot. I mean, you all got in cars and went back to your mom and dad’s place? A. Yes. THE COURT: Q. Correct? A. Yes. THE COURT: Q. In that whole description, you have not said that the groom was in your presence? A. Because I didn’t meet him. I – me and him were never face to face. I haven’t met him. THE COURT: Q. So… A. Yes, I haven’t met him. THE COURT: Q. How do you know he was there? A. His mom was here so I’m assuming because I haven’t met him. My parents did. Because for us they meet after the actual marriage like for us that would have been this year in the summer like when they… THE COURT: Q. The cultural marriage. A. The cultural marriage when they all come and after the cultural marriage is basically when the groom and the bride they go together and they live together. THE COURT: Q. Right. A. Yes, and that hasn’t happened yet. THE COURT: Q. On August 14th at the mosque, did anybody ask you this question? “Do you agree to be married to B.B.?” A. No. THE COURT: Q. While you were at the mosque on August 14th, did anybody say to you words as follows: “I now pronounce you husband and wife.” A. No one said it to me, but they said it on the announcement that we now we say you as husband and wife, that would be an announcement. THE COURT: Q. So the announcement that the men on their side and the women on their side heard was, “Now that M.A. and B.B. have signed the papers, married, now that they have married, let’s pray for them?” A. Yes.

[12] The following are excerpts from the evidence of the Applicant’s brother found between pages 48 and 52:

THE COURT: Q. Okay. Between when he arrived in Canada which might have been the Sunday before and the Friday at the mosque, to your knowledge, did the groom ever meet your sister? A. No. THE COURT: Q. If that had happened would it have been in your presence or the presence of your father? A. Most definitely, yes. THE COURT: Q. As chaperone? A. Yes, like a – in our culture two people that are getting married meet privately only after they’re married. THE COURT: Q. Okay. So back to the date of August 14th. So you had met him probably the day after he arrived, Monday, and it was Tim Horton’s thing and then you’re going to the mosque on the Friday. So the men are gathering in the parking lot and they go in the men’s entrance. How many in that crowd? A. Well, I’ll say about 20. THE COURT: Q. Twenty. A. Yes. THE COURT: Q. So the women outnumber the men? A. Yeah, more women. THE COURT: Q. Right. So you go into the men’s entrance and what happens? A. Well, we go inside; we have a seat. Prayers – there being some speeches are being – someone is giving a speech – Friday prayers. After that we stand up for prayers. We complete our prayers. After the prayers, they announce all of the announcements so if anyone is getting married. If someone is praying for – if someone who is sick and they requested for prayers. So all the announcements are announced in which my sister’s – it was announced, please pray for them since they’re getting married. THE COURT: Q. Getting married? A. Yeah. Like a – well, paperwork had already been done. THE COURT: Q. The paperwork had already been – what paperwork? A. Like signing and stuff. THE COURT: Q. Did you see anybody sign anything that day? A. No, in our culture, what they do is, whoever is making the announcements, that person, usually a qualified person, not just anyone, would usually ask the groom if he consents to the marriage, and then they’ll ask the bride’s father if he agrees to the marriage as well. THE COURT: Q. Okay. This is very important and I heard you say “often ask.” I need you to tell me what happened that day. A. So once they make the announcements, before they make the announcements, like while they’re making my sister’s announcements, they would ask the groom if he consents to the marriage. THE COURT: Q. Who’s “they?” A. Well, the person – the person making the announcements. THE COURT: Q. And this… A. I don’t know the person’s name, but the person making the announcements. THE COURT: Q. Yes. A. So he would ask the groom, do you consent to the marriage? In which he stood up and said, “Yes.” And they asked my father, “Do you consent to give your daughter away to this guy?” The groom? THE COURT: Q. “Do you consent,” what’s the question to your father? A. Well, I don’t know – I don’t the exactly the wording but generally, “Do you consent to give your daughter away to the groom?” To which my dad said, “Yes.” And then they request for prayers and that’s the end of the ceremony. Not even a ceremony, that’s the end of the announcements, and they had continue making the rest of the announcements then. Then after they’re done making the announcements, stand up, meet each other, shake hands. THE COURT: Q. Who’s standing up and meeting each other? A. Everyone. THE COURT: Q. All the men? A. All the men, even men we don’t know just because they’re happy for you, right? So you stand up, you meet each other, shake hands, hug and then you go home. THE COURT: Q. And does the groom get congratulated or… A. Yeah, yeah, of course, yeah. THE COURT: Q. All right. So the announcements were in both Urdu and… A. The announcements are only in Urdu. The sermon and – sermon speeches that they do are in both. Announcements are only in Urdu. THE COURT: Q. And the announcements were made in the men’s area but broadcast to where the women’s were? A. Not broadcast like video but through the microphone, yes. THE COURT: Q. Right. So the groom was asked if he consented to marry? A. Yes. THE COURT: Q. But your sister wasn’t because she was not in the room? A. Yes, she was in the ladies’ – ladies’ room. THE COURT: Q. Right. But your father was asked he consented to give his daughter to the groom? A. So basically if he agreed to the marriage. THE COURT: Q. Agreed to the marriage? A. Yeah. They usually never ask the bride. They always ask the bride’s father or if the bride’s father is not present or alive, then they would ask whoever is representing the bride. THE COURT: Q. Which could have been a brother? A. Which could have been anyone, yeah. It could have been a brother, yeah, it could have been an uncle. It could have been the closest male member of age that she has.

[13] In her affidavit sworn June 4, 2018 the Applicant identified the registered religious official and provided a printout from the Ontario government website database that listed his name. She provided the names and addresses of the witnesses who had signed the “Record of Solemnization of Marriage” filed as Exhibit 1 at the trial.

[14] In her evidence, the Applicant had confirmed that she had signed the marriage licence application. The evidence indicates that the licence was issued on August 5, 2015. She was unsure whether she had signed other documents.

[15] As Exhibit D to the June 4 affidavit, the Applicant attached a copy of Form 9 under the Marriage Act “PARTICULARS OF MARRIAGE” on which it appears that she and B.B. signed with a witness to the signature and the officiant signed to certify that he had married them on August 14, 2015 at the location specified.

[16] In her evidence at the trial, she was uncertain whether she had signed other documents. She provided at Exhibit C to her affidavit a “Nikah (Marriage) Form” that consisted of several sections. She described it as an internal document required by her faith community that was used to keep a record of marriages that take place in the community. Part 1 is to be completed “by the Guardian (WALIYY) of the bride”, and it was completed by her father. Her father affirmed that he was the legal Guardian (WALIYY) of the proposed bride and he requested that the Nikah announcement be made. He confirmed that the “the proposed dower money (Mahr)” had not been received. Part 2 is to be completed if the Guardian cannot personally attend the Nikah ceremony. It is not been completed.

[17] Part 3 is to be completed by the bride. It contains the following information:

A. in accordance with the terms agreed upon by my Guardian (Waliyy) mentioned above, I hereby agree to my Nikah with B.B. Member Code #xxxxx S/o W.A.B. with a dower money (Mahr) of 6000 (pounds?) B. Of the total proposed dower money (Mahr) NOT have been received in the form of cash/jewellery. C. This Nikah Form constitutes our Pre-Nuptial Agreement. Signature of the Bride: M. Date: 29/07/2015

[18] It is not clear whether the signature is a signature or printed letters.

[19] Parts 1 and 3 are witnessed by two people, one of whom was a witness on the Record of Solemnization. The witnesses “testify that the above form has been duly filled in our presence, by the legal Guardian (Waliyy) of the bride and that she has expressed her agreement to this Nikah in our presence and has also signed the form in our presence. (emphasis in original)

[20] Part 4 is the Verification by the President/Amir of the community confirming that the Applicant is a born Ahmadi and her father is the bona fide Guardian (WALIYY) according to the Islamic Law and that the witnesses had testified in the presence of the local president and the National Amir that the proposed bride had signed the form of her own free will.

[21] Part 5 is to be completed by the groom and has similar content as part 3 except that he does not have a Guardian and he is committing to pay the Mahr. The line for signature of the bridegroom has the second name of the Respondent but it isn’t clear whether it is a signature or printing. Part 5 is followed by the witnesses to Part 5 and then Part 6 is the verification by the local President and National Amir in London, England.

[22] Part 8 is the “Certification by Central/National Marriage Department” that includes the statement “the witnesses have testified in my presence that the proposed bride has signed this form of her own free will”. That part of the form has not been completed.

[23] Part 9 is “To be completed at the time of the announcement of Nikah” by “the person performing Nikah” and by “two witnesses of Nikah Announcement”. Part 9 was completed and is dated August 14, 2015. The document indicates that the marriage had been registered on August 14, 2015 and a registration certificate number has been inserted.

Legislation

[24] The Marriage Act contains these provisions relevant to formal validity of a marriage:

s. 4 No marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.

s. 20 No person shall solemnize a marriage unless he or she is authorized by or under section 24 or is registered under this section as a person authorized to solemnize marriage.

s. 21 The Minister shall keep a register of the name of every person registered as a person authorized to solemnize marriage . . .

s. 24(1) A judge, a justice of the peace or any other person of a class designated by the regulations may solemnize marriages under the authority of a licence.

s. 24(3) No particular form of ceremony is required except that in some part of the ceremony, in the presence of the person solemnizing the marriage and witnesses, each of the parties shall declare:

I do solemnly declare that I do not know of any lawful impediment why I, AB, may not be joined in matrimony to CD.

And each of the parties shall say to the other:

I call upon these persons here present to witness that I, AB, do take you, CD, to be my lawful wedded wife (or to be my lawful wedded husband. . . )

After which the person solemnizing the marriage shall say:

I, EF, by virtue of the powers vested in me by the Marriage Act, do hereby pronounce you AB and CD to be married.

s. 25 Every marriage shall be solemnized in the presence of the parties and at least two witnesses who shall affix their names as witnesses to the entry in the register made under section 28.

s. 28(1) Every person shall immediately after he or she has solemnized a marriage,

(a) where the marriage was solemnized in a church, enter in the church register kept for the purpose, (b) where the marriage was solemnized elsewhere than in the church, enter in a register kept by him or her for that purpose,

the particulars prescribed by the regulations, and the entry shall be authenticated by his or her signature and those of the parties and witnesses.

s. 28(2) Every person who solemnizes a marriage shall, at the time of the marriage, if required by either of the parties, give a record of solemnization of the marriage specifying the names of the parties, the date of the marriage, the names of the witnesses, and whether the marriage was solemnized under the authority of a licence or publication of banns. Emphasis added

[25] The Civil Marriage Act establishes the requirements of essential validity of a marriage including the following:

2.1 Marriage requires the free and enlightened consent of two persons to be the spouse of each other.

Analysis

[26] In her decision in Torfehnejad v. Salimi, 2006 ONSC 38882 Greer J. summarized the principles applicable in cases of annulment. Annulment in Ontario is governed by the provisions of the Annulment of Marriages Act (Ontario) which established that the law of England applies and that the Superior Court of Justice has jurisdiction. The Applicant was at all times both resident and domiciled in Ontario and hence this court has jurisdiction to hear the Application.

[27] Formal validity of marriage is determined with reference to the jurisdiction where the marriage was celebrated (“lex celebrationis”). Essential validity of marriage is determined in accordance with where the parties were domiciled prior to the marriage (“lex loci domicilii”). Given that the Applicant was domiciled in Ontario and the marriage was celebrated in Ontario, the law of Ontario applies.

[28] Black’s Law Dictionary, (10th ed.) defines the term “annulment” as follows:

A judicial or ecclesiastical declaration that a marriage is void. An annulment establishes that the marital status never existed. So annulment and dissolution of marriage (or divorce) are fundamentally different: an annulment renders a marriage void from the beginning, while dissolution of marriage terminates the marriage as of the date of the judgment of dissolution.

[29] Based on the evidence, I am satisfied that some of the requirements of formal validity have been satisfied. A licence was issued as required by s. 4. The officiant was registered as required by s. 20. The officiant’s name was in the register as required by s. 21. The officiant’s name was published as required by s. 23. The officiant provided a Record of Marriage as required by s. 28(2).

[30] However, this ceremony failed to comply with the formal validity requirements established in s. 24(3) and s. 25. The Respondent, the officiant and the witnesses were in one part of the mosque with the men guests and the male worshippers who were in attendance for afternoon prayer. The Applicant was in another part of the mosque with the women family members. In other words, the Applicant was never in the presence of the groom, the officiant and the witnesses as required by s. 24(3) and s. 25. The Applicant and the Respondent did not say the mandatory words required by s. 24(3). There is no evidence that the officiant spoke the mandatory words required by s. 24(3); announcing the marriage or the Nikah does not comply with the requirement that the officiant use his authority to create the contract of marriage. Because of those areas of non-compliance, s. 25 could not be complied with. The failure to comply is not saved by s. 31 of the Marriage Act for several reasons including the fact that the Applicant and Respondent did not live together and cohabit as a couple.

[31] As indicated in s. 2.1 of the Civil Marriage Act, consent is key to the essential validity of the marriage, I accept the evidence of the Applicant that she did not consent to the marriage. The Applicant appeared to acquiesce in the marriage by signing the application for the marriage licence and by going to the mosque and by signing Form 9. The evidence is that she was never asked by the officiant if she consented to the marriage. Without addressing the issue of consent to marriage by proxy, the evidence is that her father as her Guardian (WALIYY) was consenting to the content and announcement of the Nikah and he consented to give his daughter to the groom. The most the evidence establishes is that she acquiesced in the announcement of the Nikah. That is far from consent to marriage.

[32] This purported marriage fails to meet the requirements of formal validity and essential validity. On that basis, it is unnecessary to determine whether the marriage is void or voidable because the outcome of a declaration of nullity follows from either determination.

[33] I turn to the submission that the purported marriage should be annulled based on the application of the criteria referred to in S. v. S. and in R.H. v. R.T. and particularly on the grounds of duress. Although the Applicant was then 20 years old and had completed 2 years of university, the evidence establishes that she was incapable of resisting the cultural and familial pressures and the agreement of grandparents that the marriage of the Applicant and Respondent would solve the many years of discord between their families. The Applicant did not merely have “mental reservations”. She was fundamentally opposed to the marriage but she had no alternative but to appear to participate. She was subject to duress and for that reason as well the purported marriage will be annulled.

[34] I have detailed the contents of Exhibit C to the Applicant’s June 4, 2018 affidavit. It appears that she signed Part 3 of the “Nikah (Marriage) Form”. But, contrary to the witness verification, she did not express her agreement to the Nikah and did not sign in the presence of the witnesses. However, to the extent that this “Nikah (Marriage) Form” was completed is not relevant to the formal validity of the marriage.

Order

[35] The marriage that purportedly took place on August 14, 2015 between the Applicant and Respondent is annulled.

Kiteley J. Date: July 27, 2018