Court File and Parties

COURT FILE NO.: FC-18-476 DATE: 2018/09/27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carole L. Doiron, Applicant -and- Teyi Edem Lawson, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Carole L. Doiron, Self-Represented Teyi Edem Lawson, Not Appearing

HEARD: September 4, 2018

Endorsement

Overview

[1] This is an uncontested trial for an annulment of the Applicant’s marriage. For the reasons set out below, I dismiss the Application with leave to amend to seek a divorce.

Facts

[2] The Application was commenced on March 9, 2018. The Applicant seeks an annulment of her marriage to the Respondent that took place on August 16, 2016.

[3] The Application was served on the Respondent on April 26, 2018 by the Applicant texting copies of the Application to the Respondent, pursuant to an Order allowing substituted service dated the same day. The Applicant has filed text messages attached to her Affidavit of service which indicate that the Respondent received these texts.

[4] The Respondent has not filed an Answer nor participated in any way in this proceeding.

[5] In support of her Application, the Applicant has filed an Affidavit for Uncontested Trial, sworn May 29, 2018. This affidavit contains little information, but states that the parties married on August 16, 2016, separated on January 10, 2017, and never lived together. There are no children. The Applicant states in this affidavit that “there was no relationship”, she “was used”, and she wishes “to start a new life”.

[6] The Applicant filed two additional affidavits, sworn April 17 and 26, 2018, in support of her motion for substituted service. These affidavits detail the Applicant’s evidence that the parties were married on August 16, 2016, that after the marriage they never lived together, that after the marriage the Respondent went to his separate home, that the marriage was never consummated, and that she believes the marriage was a fraud from the outset intended to assist the Respondent to obtain immigration status.

[7] The Applicant has not filed a certified copy of the registered marriage certificate to evidence the date and place of the marriage. If the Applicant wishes to continue with this proceeding to obtain a divorce, she should do so. At this point, the Applicant’s evidence is that the parties married on August 16, 2016 in Ottawa, at City Hall, and therefore I have assumed, for the purpose of the below reasons, that the marriage was legally registered.

Analysis

[8] The Applicant’s request raises two arguments for an annulment – one being that the marriage was not consummated, and the second being that the Respondent only married her for immigration purposes. Both of these arguments, if successful, would result in the marriage being voidable [1]. In other words, the marriage is treated in law as a valid and subsisting marriage unless and until it is annulled by a Court [2].

[9] Based on the evidence before me, neither of the above arguments allow an annulment to be granted in this matter.

[10] Historically, annulments based on non-consummation have required evidence of permanent physical impotency [3]. This has been expanded to include evidence of psychological factors that effectively create a permanent psychological impotency. Non-consummation due to “mere refusal” or “wilful refusal” to engage in sexual intercourse is not sufficient [4].

[11] Based on the evidence before me, I do not find that a permanent impotency exists that would allow an annulment based on non-consummation. Rather, the evidence supports a finding of wilful refusal on the part of the Respondent to consummate the marriage. This is not sufficient.

[12] With respect to the immigration issue, the Ontario Court of Appeal has held in its decision in Iantsis (Papatheodorou) v. Papatheodorou (1970), [1971] 1 O.R. 245 (Ont.C.A.) [5] that immigration fraud cannot be relied upon to grant an annulment.

Disposition

[13] The Applicant’s request for an annulment is therefore dismissed, with leave for the Applicant to amend her Application to seek a divorce. Such an amendment shall be served on the Respondent, by special services, unless the Applicant brings a motion, in accordance with the Family Law Rules, O.Reg. 114/99 [6], seeking a further order for substituted service.

Justice P. MacEachern Date: September 27, 2018

Released: September 27, 2018

Footnotes:

[1] Lowe v. A.A. 2018 ONSC 3509, para 42; Canadian Family Law, 7th Ed. Julien D. Payne and Marilyn A. Payne, pages 24-25, 33 [2] Canadian Family Law, 7th Ed. Julien D. Payne and Marilyn A. Payne, pages 24-25 [3] see Rae v. Rae, [1944] O.R. 266, [1944] 2 D.L.R. 604 (C.A.) [4] Heil v. Heil (1942), 1942 CarswellOnt 108 (S.C.C.); see also Bethell v. Bethell (1932), [1932] O.R. 300 (Ont. C.A.); Tice v. Tice (1936), 1936 CarswellOnt 63 (Ont. H.C.); affirmed (1937), 1937 CarswellOnt 165 (Ont. C.A.); Jomha v. Jomaa (2010), 2010 CarswellAlta 354 (Alta. Q.B.) [5] Iantsis (Papatheodorou) v. Papatheodorou (1970), [1971] 1 O.R. 245 (Ont.C.A.), see also Grewal v. Kaur [2009] O.J. No. 5130 (Ont.S.C.J.), which found that Iantsis remains binding on lower courts. [6] Family Law Rules, O.Reg. 114/99