Maha Arshad v. Syed Daniel Ahmed, 2022 ONSC 2061
COURT FILE NO.: FS-21-22821 DATE: 2022-04-04 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MAHA ARSHAD Applicant – and – SYED DANIEL AHMED Respondent
COUNSEL: Snober Naz, for the Applicant No one appearing for Respondent
HEARD: In writing
BEFORE: M.D. Faieta J.
Reasons for Decision
[1] At this uncontested trial, the Applicant seeks an annulment of her marriage to the Respondent. The Respondent was personally served with this Application on April 22, 2021, but has not filed any responding materials. The trial of this Application proceeded based on the Applicant’s uncontested affidavit evidence.
Background
[2] The Applicant is 27 years old. She was born in Pakistan and has resided in Canada since 2001. The Applicant holds various degrees from the University of Toronto.
[3] The Respondent is 29 years old and was born in Ontario.
[4] In September 2020, compelled by cultural, social and religious beliefs that women should get married by a certain age, a matchmaker arranged a marriage proposal for the Applicant’s family.
[5] Both families approved the marriage between the parties without the parties meeting or knowing each other and with little input from the parties. Given their beliefs and the pressure from their families, the parties agreed to marry.
[6] The parties were married in Toronto on October 31, 2020.
[7] The Applicant states:
The Islamic rules provide for three stages to complete the Marriage. The first stage is the “Nikah”, the second stage is called “Rukhsati”. The third stage is called a “Walima”. The bride can start to cohabit with the groom after Rukhsati and not before that as the Marriage is complete after the three stages as explained in their religious Islamic rules and traditions.
[8] Given that she is a devout Muslim, the Applicant states that “she could not have thought of the possibility” of consummating the marriage before the second stage of the Islamic marriage ceremony had been completed.
[9] The Nikah occurred on October 31, 2020. The other two steps have not been completed.
[10] After their marriage, the Applicant heard about conflicts between her family and the Respondent’s family. The Respondent’s family wanted the Applicant to give birth to a child and the Applicant’s family wanted her to pursue a career.
[11] The Respondent sought an Islamic divorce form the Islamic Foundation of Toronto. The Applicant states that it is possible under Shariah law to seek a divorce after the Nikah and before the Rukhsati and Walima.
[12] On February 2, 2021, the Applicant received a document from the Islamic Foundation of Toronto which indicates that the Respondent has stated:
There is no understanding between the husband and wife. There are constant arguments and no chance of reconciliation. There is no affection between the couple – they do not live together, nor have they consummated the Marriage. Seeking a Faskh.
[13] The parties have never cohabited due to the non-completion of the marriage according to their religious beliefs and traditions, nor have they consummated their marriage.
[14] The Applicant seeks an annulment of her marriage on the following grounds:
(1) The parties never cohabited and did not enter a “Muslim Marriage” as agreed. (2) The marriage was entered into under pressure and fear. (3) Pressure from the family members due to religious and cultural values. (4) Non-completion of the marriage. (5) Non-consummation of the marriage.
Analysis
[15] The following legal principles govern the annulment of a marriage in Ontario:
The law of England as to the annulment of a 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: Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A-14, s.2.
The Matrimonial Causes Act, 1857 (Imp.), c. 85, s. 22, (“MCA 1857”) provides:
In all suits and proceedings other than proceedings to dissolve any marriage, the court shall proceed and act and give relief on principles and rules which in the opinion of the said court shall be as nearly as may be conformable to the principles and rules on which the Ecclesiastical Courts have heretofore acted and given relief, but subject to the provisions herein contained and to the rules and orders under this Act.
Accordingly, “… the practice and as well the substantive law administered by the Ecclesiastical Courts are to be our guide in actions of nullity. And while decisions since 1870 in England may be looked at to ascertain what are, in the view of Judges in succeeding years, the principles and rules upon which the Ecclesiastical Courts acted before and after the Act of 1857, they are not in fact declarations in any way binding upon the Courts of Ontario, and any changes made by them in the law and practice established before 1870 have not been brought into our law here.: Bethell v. Bethell, [1932] O.R. 300 at 303; Rae v. Rae, [1944] O.R. 266 (C.A.), para. 10.
A marriage may be annulled on the basis that it is void ab initio or voidable. A marriage is void ab initio where a party lacks legal capacity to marry or there is a lack of consent. A marriage may be voidable for fraud or non-consummation: Lowe v. A.A. and Lowe v. M.P., 2018 ONSC 3509, paras. 38-42.
In respect of a claim that a marriage should be annulled based on non-consummation, the Supreme Court of Canada in Heil v. Heil, [1942] S.C.R. 160, para. 5 stated:
The mere refusal of marital intercourse due to caprice is not a sufficient ground to warrant a decree in nullity. The earlier decision, Dickinson v. Dickinson …, which held that persistent refusal was a legal ground for a decree, is overruled, and it is now settled that there must be an incapacity of some kind, which in certain cases is a structural defect, but which may also arise out of mental condition, with the resulting effect of creating in the mind of the woman an aversion to the physical act of consummation.
In Heil, at paras. 10-12, the Court granted an annulment as it found that although the Respondent wife was physically normal and fully capable of sexual intercourse, the Respondent had an “invincible aversion” which was not an “obstinacy of a momentary nature” to the act of consummation as she believed that marriage was exclusively spiritual.
[16] Courts have annulled a civil marriage, where a religiously observant spouse had refused to consummate the marriage when it was impossible in her mind to do so until the second part of a religious marriage ceremony had been completed: Jomha v. Jomaa, 2010 ABQB 135, para. 12 (ABQB).
[17] Most recently, in Kaur v. Singh, 2021 BCCA 320, the parties lived together for three months following a civil marriage ceremony but agreed that they would not consummate their marriage until after their had completed a Sikh religious marriage ceremony. After living together for about three months, the Appellant moved out of their home and their relationship ended. The Appellant stated that she left as the parties’ constant fighting affected her emotional health, college studies and work. In declaring that the marriage was annulled, the British Columbia Court of Appeal allowed the appeal and found that the Applicant’s sincere belief that consummation was not to take place before the Gurdwara ceremony to be an "invincible aversion to the physical act of consummation". In arriving at this conclusion, the court, at para. 17, stated:
In my view, in the multi-cultural society that our nation reflects, the common-law principles at issue here must be applied contextually, in accordance with the cultural norms of the parties seeking annulment. This was explored in Jomha. I consider that a psychological incapacity consistent with the principles discussed in these cases can arise as meaningfully from sincerely held religious and cultural beliefs as from other forms of psychological aversion, both being, contextually, a "normal, predictable reaction" as discussed in Grewal. …
[18] In this case, the Applicant’s refusal to consummate the marriage is neither capricious nor obstinance of a momentary nature but rather a predictable and rationale consequence of her sincerely held religious belief that a marriage should not be consummated until all stages of an Islamic marriage ceremony have been completed. I declare the civil marriage of the Applicant to the Respondent on October 31, 2020, a nullity.
[19] Finally, not surprisingly, the legislation and common law in the United Kingdom as it relates to the annulment of marriages has been modernized over the last 150 years: See The Law Commission, Report on Nullity of Marriage, 1970, London; Matrimonial Causes Act 1973, UK Public General Acts, 1973 c. 18, ss. 12-13, as amended. Likewise, Parliament may wish to consider whether the language of the Annulment of Marriages Act (Ontario) should be updated to reflect modern circumstances in Canada including our culturally diverse society.
Mr. Justice M.D. Faieta
Released: April 4, 2022