COURT FILE NO.: 3/19
DATE: 2019-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
REZA SHARIF RAZAVIAN
Applicant
– and –
SADAF TAJIK
Respondent
Parineeta K. Chahal, for the Applicant
No one for the Respondent
HEARD: September 30, 2019
gray j.
[1] In this uncontested application, the applicant seeks an annulment. This is a rather rare proceeding today, with the ready availability of divorce.
[2] The ground for seeking an annulment is non-consummation. The test for establishing that ground is actually quite high. Notwithstanding doubts I initially entertained as to whether non-consummation, as recognized in law, was established, on reflection I am convinced that it has been. I grant the application for the reasons that follow.
Background
[3] The applicant and the respondent met each other in January, 2017 at the University of Waterloo. The applicant was a PhD student in the field of systems design engineering, and the respondent was a post-graduate student in the field of computer engineering. They began to date.
[4] The parties discussed marriage. The respondent advised the applicant that she did not wish to have any sexual relationship before marriage, and the applicant respected her wishes. On May 10, 2018, the applicant proposed marriage and the respondent accepted.
[5] The parties married on July 5, 2018 at Waterloo City Hall. The parties’ parents were not present, as they live in Iran.
[6] Paragraphs 8 and 9 of the affidavit filed by the applicant (which was confirmed by him from the witness box at the trial) read as follows:
Following our marriage ceremony at the City Hall, the Respondent refused to have any physical intimacy with me and I could not understand the reasons behind it right after our marriage. Later, I noticed that our marriage could not be consummated due to the Respondent’s serious incapacitating anxiety for having sexual intercourse. Whenever I requested to be physically intimate with her, she felt very anxious and asked me to leave it for a later time until she could overcome her anxiety. Despite of my passion and desire for having physical intimacy with my wife, I never insisted or forced her to do so.
The Respondent’s anxiety was not known to me prior to our marriage, as she previously asked me to leave the sexual relationship until after marriage and I agreed. Therefore, we did not discuss this matter during our relationship before the marriage. I believe the Respondent was not aware of her anxiety for physical intimacy either, until we were married and I pursued it. The Respondent did not see any psychologist or any medical doctor regarding this issue, and continued refusing to consummate the marriage.
[7] The applicant deposes, in his affidavit, that the parties’ parents in Iran were unhappy about the marriage. The respondent’s parents believed that the marriage was not complete, as the parties did not have an Iranian marriage, and they contended that the marriage contract must include the exact value of a Mehrieh, or dowry. However, the proposed amount of the Mehrieh was not affordable. Attempts to negotiate the Iranian marriage contract failed.
[8] The applicant deposes, at paragraphs 13 and 14 of his affidavit:
In August 2018, I started getting frustrated, when our families’ conflicts continued in addition to the Respondent’s ongoing refusal for consummating the marriage.
Our relationship broke down and the Respondent did not try to seek any psychological resolution or if needed medical treatment for her anxiety issue; thus, we separated on August 29, 2018.
Analysis
[9] The jurisdiction of this court to entertain proceedings for the annulment of marriages is provided for in the Annulment of Marriages Act (Ontario), R.S.C. 1970, c.A-14. Section 2 of that Act provides:
2 The law of England as to the annulment of marriage, as that law existed on the 15th day of July 1870, in so far as it can be made to apply in the Province of Ontario, and in so far as it has not been repealed, as to the Province, by any Act of the Parliament of the United Kingdom or by any Act of the Parliament of Canada or by this Act, and as altered, varied, modified or affected, as to the Province, by any such Act, is in force in the Province of Ontario.
[10] While there are a number of potential grounds for annulment, including fraud, and a prior existing marriage on the part of one of the parties, the ground that is relevant here is non-consummation.
[11] It is clear, from the authorities, that non-consummation must be as a result of an incapacity or inability to consummate, rather than a refusal to do so. The principles were discussed in detail by Justice Mendes Da Costa in Khan v. Mansour (1989), 1989 4341 (ON SC), 70 O.R. (2d) 492 (U.F. Ct.). In his reasons, he stated:
Impotence was a canonical disability, and it is well settled that the inability of a respondent to consummate a marriage is a ground for avoidance of the marriage. The condition of impotency may be found in a physical or psychological disorder. Thus, the incapacity may stem from a structural defect of a physical nature. Alternatively, an annulment may be obtained if the disability arises from a mental condition that creates in the mind of a spouse an aversion, an invincible repugnance to the physical act of consummation, resulting in a paralysis of the will. In either event, the impediment to consummation must be such as to render complete intercourse impracticable. The mere refusal to consummate a marriage due to obstinacy or caprice, is not a ground for annulment. However, non-consummation and refusal to consummate, depending upon the circumstances, may serve as evidence from which an inference of capacity can reasonably be drawn.
[12] Some of the cases referred to by Justice Mendes Da Costa reflect the tension that is inherent in the statement of the relevant principles. In some cases, the courts were quite insistent that direct medical evidence of incapacity or inability be tendered in order to meet the legal test of non-consummation. In other cases, the courts seemed more willing to accept that an inference could be drawn as to incapacity or inability by the mere refusal to engage in sexual intercourse.
[13] The former line of cases is exemplified by the decision of the Court of Appeal in Rae v. Rae, 1944 108 (ON CA), [1944] O.R. 266 (C.A.). In his reasons, Laidlaw J.A. stated:
A marriage ought not to be lightly interfered with, but on the contrary the Court ought to be fully satisfied that the grounds advanced by a petitioner are sufficient to justify the termination of the relationship of the parties. In my opinion it is not in the best interests of public morals and social welfare that the burden of proof necessary in law to end the solemn vows and undertakings of married persons should be discharged with any degree of ease.
[14] In the Khan case itself, Justice Mendes Da Costa adopted the view of Laidlaw J.A. in Rae, and dismissed the application based on non-consummation.
[15] Cases tending in the other direction include Heil v. Heil, 1942 3 (SCC), [1942] S.C.R. 160, and Jones v. Jones, 1947 107 (ON CA), [1948] O.R. 22 (C.A.). In the latter case, Hogg J.A. stated:
It would seem that it is now an accepted principle of the law that if, in an action for annulment of marriage on the ground of non-consummation, the fact of non-consummation having been established to the satisfaction of the Court, a defendant refuses to submit to medical treatment or to a medical examination, such defendant may be deemed to be incompetent, in the absence of evidence to the contrary.
[16] In the case before me, I am prepared to adopt the same reasoning as that used by Hogg J.A. in Jones. I think it is a reasonable inference that the respondent’s inability to consummate the marriage arose from a disability of some sort, rather than from a mere refusal to have sexual intercourse. As was the case in Jones, the respondent declined to seek medical advice for her condition.
Disposition
[17] For the foregoing reasons, notwithstanding some doubts I initially entertained, I grant the order for the annulment of the marriage, as requested.
Gray J.
Released: October 1, 2019
COURT FILE NO.: 3/19
DATE: 2019-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
REZA SHARIF RAZAVIAN
Applicant
– and –
SADAF TAJIK
Respondent
REASONS FOR JUDGMENT
Gray J.
Released: October 1, 2019