Court File and Parties

COURT FILE NO.: FS-19-12992 DATE: 20210316 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Samantha Ives, Applicant AND: Biktor Chubinidze, Respondent

BEFORE: Kiteley J.

COUNSEL: Applicant, self-represented Victor Pilnitz, counsel for the Respondent

HEARD: February 4, 2021

Endorsement

Overview

[1] The Applicant has brought this motion for summary judgment in which she is asking for an annulment.

Background

[2] The Applicant was born in 1986 and the Respondent was born in 1983.

[3] The Applicant has been on ODSP for about five years due to her mental and physical health. In May of 2018, she had a relapse in her mental health. Her doctor referred her to the Centre for Addiction and Mental Health (“CAMH”) and she began weekly sessions in about June, 2018. The Children’s Aid Society had contacted the Applicant about care of her son. Her friend and neighbour Luba assured the CAS that she would look in on the Applicant and her son daily. In the beginning of August of 2018, the Applicant was taking antidepressants and anti-psychotic medications, which she documented.

[4] In August 2018, Luba and her husband Giorgi introduced the Applicant to the Respondent, who is Giorgi’s cousin. The Respondent had arrived in Canada from Georgia in July 2017, having been transported in a shipping container. He had made a refugee claim. The Applicant and the Respondent saw each other in the company of Luba and Giorgi.

[5] In about October 2018, the Applicant had what she referred to as “another mental break down”.

[6] In early November 2018, the Respondent proposed to the Applicant. The marriage took place on December 15, 2018 followed by a party involving family and close friends.

[7] The Applicant’s son was 12 or 13 years old in the fall of 2018. The Applicant said that they had agreed that the Respondent would delay moving into her apartment until March 2019 so that her son could have time to transition to the idea of someone else living there.

[8] After the wedding, the Applicant and Respondent saw each other, most often with Luba and Giorgi. The Respondent was appropriate with the Applicant’s son and with her dog. The Applicant made suggestions about going on a honeymoon to Niagara Falls. The Respondent rejected all of her suggestions. Luba and Giorgi moved out of the apartment building and the Respondent became very distant. In March 2019, the Applicant said that she and the Respondent met with ODSP representatives and completed the paperwork to confirm that he would be living with her. In April 2019, the Applicant made an application to sponsor the Respondent for permanent residence as a member of the family class.

[9] The Applicant kept asking the Respondent to move in but he made excuses. By October 2019, the Applicant said that the Respondent and his cousin became verbally abusive to her and would not leave when she asked them to. On one occasion, she called the police but they left before the police arrived. She understood that the police contacted him and told him to stay away.

[10] On October 8, 2019, the Applicant started this proceeding in which she asked for an annulment. She did not ask for a divorce based on separation. At this time, she also withdrew the application to sponsor the Respondent.

[11] The Respondent filed an Answer dated October 31, 2019 in which he opposed the granting of the annulment and asked that that claim be dismissed. He asked for an equalization of net family properties and, under “other”, he asked for “return of the money borrowed by the Applicant from the Respondent” and for an order that the Applicant “repay to the Respondent all loans”. He also asked for “full and frank financial disclosure, including bank statements from November 2018” to the date of the Answer.

[12] The Applicant filed a Reply.

[13] The parties attended a settlement conference before Nakonechny J. on November 23, 2020. She made an order permitting the Applicant to bring her motion for summary judgment on February 4, 2021 and permitting the Respondent to bring a cross-motion, which he did not do. She established a timetable for filing materials. She also gave permission to the Applicant to serve a Form 14B motion to amend her Application to claim a divorce, which she did not do.

[14] The Applicant served and filed her affidavit sworn January 7, 2021. The Respondent served and filed his affidavit sworn January 10, 2021 and his factum dated January 11, 2021. The Applicant did not serve a factum.

[15] The Applicant served a 14C confirmation form for this motion in which she indicated that she intended to ask for these orders:

(a) that the annulment be granted; (b) that the Respondent’s claim for equalization of net property be dismissed; (c) that the Respondent’s claim for $21,000 and costs be dismissed; (d) that the Applicant be granted costs of the proceeding.

[16] At the outset of the hearing, I pointed out that the Applicant had not served and filed a notice of motion. Mr. Pilnitz confirmed that he was willing to proceed without it on the basis that the orders sought were those listed in the confirmation form.

Grounds for Annulment

[17] In her written material and in her submissions, the Applicant asserted that the Court should grant an annulment on these grounds:

(a) because of her “lack of mental state” at that time of the marriage; (b) the Respondent married her so that she would apply for citizenship in the family category. In submissions, she suggested that he had entered into the marriage fraudulently. The issue of fraud had not been raised in the Application or in the affidavits and is too important a legal concept to be added at the last moment. I therefore do not consider her oral submissions with respect to fraud; (c) the Respondent refused to consummate the marriage and he refused to move in with her.

A. Applicant’s mental state

[18] The Applicant has provided clinical notes and records from CAMH on which she relies to demonstrate her fragile mental state. In paragraph 17 of her affidavit, she said that she was “not in a proper mental state during the entire course of our relationship”.

[19] This issue engages the legal concept of “capacity to marry”. In Calvert v Calvert, [1997] 32 O.R. (3d) 281, (Ont. Gen. Div.) (Calvert), the court was focused on the issue of capacity to divorce. In that context, the court referred to Re Park Estate, [1953] 2 All ER. 1411 (Park). In both of those cases, the court also referred to capacity to marry. As those courts indicated, a person’s right of self-determination is an important philosophical and legal principle. Having reached the age of majority, it is presumed that a person has capacity. The contract of marriage has been described as “the essence of simplicity, not requiring a high degree of intelligence to comprehend”: Park at p. 1427. Courts are slow to take away a person’s right to decide, which is reflected in the low threshold the courts have set for the determination of capacity. To adapt the reasoning in Calvert, “the real question is whether Ms. Ives understood what she was doing on December 15, 2018.”

[20] The Respondent and his cousin do not accept that the Applicant lacked capacity to marry.

[21] I agree with the Respondent’s submissions. The fact that the Applicant was under treatment at CAMH that included the medications she has identified does not mean that she lacked capacity to marry. The evidence on this motion includes copies of the letters that the Applicant and her mother wrote, after the marriage, to support the sponsorship application. I will refer to that issue again below. However, for purposes of this ground for the annulment, the letters from the Applicant and her mother indicate that the Applicant was well aware of the proposal to marry, the arrangements for the wedding, and that, at the time of the wedding, she was happy to be married. The objective evidence of the photographs of the wedding and all of the other evidence indicate that the Applicant had capacity to marry.

[22] In this case, the Applicant is challenging her own capacity. The burden is on her to provide sufficient evidence for the court to set aside the presumption of capacity. In the fall of 2018, she was under medical care, including significant medications. But the evidence meets the low threshold of proving capacity, namely that, on December 15, 2018, she understood that she was marrying the Respondent.

[23] I dismiss the request for an annulment on this ground.

B. The Respondent married the Applicant so that she would apply for citizenship in the family category

[24] After the wedding, the Applicant did make an application to sponsor the Respondent. The letters that the Applicant and her mother, sent in support of the permanent residence application, indicated that the Respondent was welcomed into the family. They both made a point about the Respondent’s positive interactions with the Applicant’s son. The Applicant had introduced the Respondent to her ODSP caseworker and he became part of the family unit for purposes of ODSP.

[25] In the short affidavit sworn January 10, 2021, the only evidence from the Respondent that bears on this issue is that the marriage was “genuine”.

[26] On this record, I am not persuaded that the Respondent married the Applicant with the motivation to secure a sponsorship application. The Respondent had already made a refugee claim. Other than his evidence that he spent ten days in a container, there is no evidence as to the strength of his refugee claim. In any event, the Applicant withdrew the sponsorship application before it was granted. The Respondent received a letter dated November 16, 2019 indicating that his application for a permanent resident visa as a member of the family class could not be considered because the Applicant had withdrawn the application.

[27] I dismiss the request for an annulment on this ground.

C. The Respondent has refused to consummate the marriage

[28] In her Application, the Applicant wrote the following:

We never slept in the same home or had any form of physical contact.

[29] In her affidavit, the Applicant deposed as follows:

The plan was for the Respondent to move to my apartment in March 2019 so that my son could have time to transition to the idea of someone else living with us, as it has always been just the two of us living together. When it finally came time for him to move in he always had an excuse for not moving in. Whether it was because it was easier for him not to move in because of work, hanging out with his friends or his cousins place, (at this point I found out that his cousin had moved to Barrie) I was constantly asking him when we would go away for a honey moon or a small trip and my questions was always dismissed or ignored. He always had an excuse for not going away; he had to work, he didn’t have money or he had to send money home for his kids. . . As soon as Luba and Giorgi had moved away from the building into their home is when the Respondent became very distant from me. He never spent the night at my home at all before or after our marriage. There was never any sexual contact between the two of us. . . . In the short time we were married we did not consummate the marriage. . . .

[30] In her submissions, the Applicant said that the Respondent had refused to consummate the marriage.

[31] In his Answer, the Respondent wrote that he did not agree with the request for an annulment. The Answer consists of 10 short paragraphs of which the following is relevant:

At the time marriage and courtship, the parties had an excellent romantic relationship.

[32] In his Answer and in his short affidavit, the Respondent deposed as follows:

My marriage to the Applicant was genuine.

[33] The Respondent did not deny any of the evidence of the Applicant.

[34] Neither party provided any legal authority with respect to grounds for annulment. In my view, the decision of most relevance is Razavian v Tajik, 2019 ONSC 5662. In that case, the court heard the uncontested application of the husband for an annulment on the grounds of non-consummation.

[35] In that case, the evidence of the husband was that the wife “refused to have any physical intimacy” with him; that the wife has “serious incapacitating anxiety for having sexual intercourse”; that whenever he requested to be physically intimate with her, “she felt very anxious and asked [him] to leave it for a later time until she could overcome her anxiety”; that he did not believe that his wife was “aware of her anxiety for physical intimacy either, until [they] were married”; and the wife “continued refusing to consummate the marriage” (at para. 6).

[36] The motion judge considered several prior decisions that reflected the line of cases that required “direct medical evidence of incapacity or inability” to consummate and the other line of cases in which 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” (at para. 12). In paragraph 16, the motion judge adopted the latter approach. He noted that the wife had declined to seek medical advice for her condition. He held that it was a reasonable inference that the wife’s inability to consummate the marriage arose from a disability of some sort, rather than from a mere refusal to have sexual intercourse. He granted the annulment.

[37] The legal burden is on the Applicant to provide the evidence upon which the court could grant the annulment. Her evidence is that they did not consummate the marriage. In her submissions, she took the position that the Respondent had refused to consummate the marriage but that is not included in her evidence. As a result, the Respondent did not have an opportunity to provide evidence as to why they had not consummated the marriage. The evidence is clear that they agree that they did not consummate the marriage. There is no evidence, however, of incapacity or inability on the part of the Respondent. Even if I accept the Applicant’s submission that she wanted to have sexual relations and the Respondent refused to do so, I have no evidence explaining why and, therefore, no evidence on which I could find that the lack of consummation arose from a disability of some sort, rather than a mere refusal.

[38] I dismiss the request for an annulment on this ground.

Conclusion

[39] The Applicant took the initiative to start this legal proceeding and, I assume on a point of principle, insisted on proceeding on the grounds of annulment. She represented herself appropriately at the hearing of the motion for summary judgment. However, she has not established any ground on which the court could grant an annulment.

[40] In the endorsement following the settlement conference, the Applicant was given permission to amend to seek a divorce on the grounds of separation. She did not take that step, I assume because she was committed to annulment. The evidence of the Applicant, which is not challenged or contradicted by the Respondent is that they never cohabited. That creates an anomaly if either party asked for a divorce on the grounds of separation. Neither party wants to continue the marriage relationship. If annulment is not available, the only alternative is divorce. For that reason, I will make an order giving the Applicant permission to amend, which I assume will not be opposed.

Other relief

[41] As indicated above, in her 14C confirmation form, the Applicant asked for other orders.

[42] On the issue of the Respondent’s claim in his Answer for an equalization of net family property, Mr. Pilnitz said that his client would withdraw the claim. On the issue of the repayment of debt which is quantified as $21,000, Mr. Pilnitz said that there was evidence to confirm the transfer of money and that his client would pursue it in Small Claims Court. The Applicant asks that the Court dismiss both claims.

[43] In respect of the claim for an equalization of net family property, I have the sworn Form 13.1 financial statements of the Applicant and of the Respondent. Pursuant to the Family Law Act, the “valuation date” is the date the parties separated with no prospect of the resumption of cohabitation. In her Form 13.1, the Applicant states that the “valuation date” was September 2019. In his, the Respondent states that it was October 8, 2019. Both of them indicate that they have negative or zero net family property. In the category of part 5 debts and liabilities, the Respondent indicates that at valuation date he had a loan from his cousin that totalled $21,000 at valuation date and $24,500 today. On his own material, he does not have a claim for an equalization of net family property. In this motion, the Applicant made a request that his claim for an equalization payment be dismissed. There is no reason to allow it to remain outstanding.

[44] In respect of the claim for $21,000, the Respondent’s evidence in his Form 13.1 is that he owes his cousin that amount. The Applicant made a request that that claim be dismissed. There is no reason to allow it to remain outstanding.

Costs

[45] In her confirmation form, the Applicant asked for costs of the proceeding. At the outset of the hearing of the motion, I cautioned the Applicant not to refer to the offers to settle which each had filed. Having made the decision to dismiss her motion for an annulment, I have now looked at the offers to settle by the Respondent dated January 10, 2021 and by the Applicant dated January 18, 2021.

[46] The Applicant was not successful on the key aspect of her motion. The offers to settle do not bear on the issue of costs of the motion. In my view, neither party should be punished or rewarded by an order of costs.

ORDER TO GO AS FOLLOWS:

[47] The motion for an annulment is dismissed.

[48] The Respondent’s claim for an equalization of net family property is dismissed.

[49] The Respondent’s alleged claim with respect to a loan of $21,000 is dismissed.

[50] Neither party shall pay or receive costs of the motion.

[51] The Applicant has leave to serve and file a Form 14B motion to amend the Application to include a claim for divorce on the ground of separation. That motion may be brought to my attention, if I am available.

[52] Once the Application is amended, served, and the time for filing an Amended Answer has passed, the Applicant may file the documents necessary for consideration of her request for a divorce based on the grounds of separation, including the certificate from the Central Divorce Registry, which may be brought to my attention, if I am available.

Kiteley J. Date: March 16, 2021