Court File and Parties
COURT FILE NO.: FS-22-0019-00 DATE: 2023-02-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Anthony Akpan Ikpong Dr. Ikpong, as applicant, self represented, responding party Applicant
- and -
Theresa Archibong Mbom Mr. J. Anderson, for the respondent, Ms. Mbom, moving party Respondent
HEARD: via Zoom and in-person on January 23, 2023 at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Motion for Summary Judgment
Introduction
[1] The respondent, Ms. Mbom, moves for summary judgment pursuant to the Family Law Rules O. Reg. 114/99, rule 16 for:
a) an annulment of the parties’ marriage;
b) payment of arrears of child support in the amount of $16,750, or in an amount that the court determines;
c) ongoing child support based on the applicant’s actual income; and
d) costs on a partial indemnity basis.
[2] On January 23, 2023, when the motion was scheduled to be heard, Dr. Ikpong served a motion seeking an adjournment so that he could file his factum. His responding material had been filed previously and was accepted and reviewed by the court.
[3] Dr. Ikpong’s request for adjournment of the motion was refused, but with the consent of counsel, the court permitted the applicant to file his factum at the motion and refer to it during argument. Prior to issuing these reasons, I reviewed Dr. Ikpong’s factum.
[4] Ms. Mbom’s claim for an annulment is disputed. She alleges that Dr. Ikpong was still married to another woman when she and Dr. Ikpong were married. She submits that her marriage was void ab initio: Dr. Ikpong could not be married to two people at once. Ms. Mbom submits that in the absence of a valid marriage, a divorce is not available as relief.
[5] Dr. Ikpong applies for an order for divorce from Ms. Mbom but strenuously objects to Ms. Mbom’s request for an annulment, which he equates with a finding of bigamy, even though this is a civil proceeding. He acknowledges a previous common law relationship with Elizabeth Ihie but argues that he was not previously married to her and did not father a child with her. He relies on a decision of the Nigerian High Court granting him a decree of jactitation of marriage in support of his position.
[6] Ms. Mbom’s claims for arrears of child support and on-going child support are also contested. Dr. Ikpong submits that he should be credited for buying Ms. Mbom a vehicle to transport the children and with that credit, his obligation for child support is satisfied until May 2025.
Summary Judgment
[7] Family Law rule 16 sets out the grounds for summary judgment. Subrule 16(6) gives the court jurisdiction to make a final order where there is no genuine issue requiring trial of a claim or a defence.
[8] Subrule 16(1) provides that after the close of pleadings, either party may move for summary judgment for a final order without a trial.
[9] However, subrule 16(2) provides that summary judgment is available in any case that does not include a divorce claim. If a divorce is claimed, subrule 16(3) states that the claim for divorce may be severed from the rest of the case and proceed as an uncontested divorce, as provided in rule 36.
[10] In this case, the respondent counterclaims for annulment. Claims for annulment are not precluded from summary judgment under this framework. I find, therefore, that as a preliminary matter, the court may consider the claim for annulment as part of the motion for summary judgment. If the annulment is refused, the court may sever the claim for divorce which can proceed under rule 36. If the annulment is granted, the claim for divorce will be moot.
[11] The test for summary judgment was described by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 at para. 49:
[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[12] For the reasons that follow, I find that summary judgment is appropriate in this case, as there is a fulsome record that allows for the finding of facts and an application of the law to those facts, without the necessity of a trial.
Jactitation of Marriage
[13] Dr. Ikpong relies on the decree of jactitation of marriage granted ex parte against Elizabeth Ihie in the High Court of Justice of Plateau State, Nigeria on November 10, 2006. Dr. Ikpong testified at the hearing and called evidence but Ms. Ihie, who was then resident in Canada, did not participate in the hearing. The Nigerian court found there had been no marriage.
[14] This court has no jurisdiction to sit in appeal of the decision of the Quebec Superior Court, nor in appeal of the decision issued by the Nigerian High Court. However, in order to give context to Dr. Ikpong’s defence, it is helpful to understand the nature of the claim of jactitation of marriage and its history in Canadian law.
[15] Jactitation of marriage is an archaic cause of action in English and Irish law. Stroud’s Judicial Dictionary of Words and Phrases, 4th ed. (London: Sweet & Maxwell Ltd., 1973) comments on the law as of January 1, 1972. It defines jactitation at p. 1436 as follows:
Jactitation. Jactitation of marriage is an action (originally ecclesiastical) for the false, malicious, and unexcusable boast and assertion by a person that someone else is married to him or her (3 Bl. Com. 93). “As stated by Lord Stowell in Hawke v. Corri (2 Hagg. Con. 280), it is in the nature of a criminal suit. It has something in common with proceedings for defamation” (per Bowen L.J., Thompson v. Rourke [1893] P. 70). Therefore, if the respondent has lived as a spouse with the petitioner, or if the petitioner has represented or acquiesced in the representation, that the respondent was a spouse to him or her, that is an answer to the action (Hawke v. Corri, and Thompson v. Rourke, supra). See further Cowley v. Cowley [1900] P. 118, cited HONOUR. See also Goldstone v. Goldstone, 38 T.L.R. 403; Igra v. Igra [1951] P. 404.
[16] By 1971, the cause of action had fallen into disuse in Great Britain to the extent that the Law Commission for England and Wales recommended abolition of the suit for jactitation of marriage: see The Law Commission Working Paper No. 34, “Family Law: Jactitation of Marriage” (1971) at paras. 6 and 9. The suit was formally abolished in Great Britain in the Family Law Act, 1986 c. 55 s. 61. The claim was subsequently abolished in the Republic of Ireland in 1995, following the recommendation of a Law Reform Commission in 1983: see The Law Reform Commission, “Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters” (1983) at p. 16.
[17] The claim for jactitation of marriage finds little footing in Canada. At Vol. 58, no. 4 (April 1922), the Canada Law Journal observed:
Very similar to a nullity suit is a jactitation suit. It is available to the man or to the woman. The former may complain that the latter has improperly boasted of being his wife and may ask the Court to silence her. She may answer the charge by denying the boasting, by setting up a marriage, or by pleading his permission to assume the character of wife. It has rarely been resorted to in England in modern times, and never in Canada or the U.S.
[18] In Christine Davies’ Family Law in Canada, (Toronto: Carswell, 1984) the author reviews the law as of June 1, 1984. Chapter 4, p. 83 deals with jactitation of marriage. The author notes that the Ontario Supreme Court determined in Reid v. Aull (1914), 32 O.L.R. 68 at p. 76 that the court had no jurisdiction to entertain the action. As well she states, “There does not appear to be any reported instance of the bringing of this action in Canada.”
[19] Ms. Davies commented that petitions for jactitation are
… extremely rare in the English courts and those presented in recent years have been prompted by the desire to get a declaration as to the validity of a divorce decree obtained in another country rather than by the need to restrain the defendant from actively claiming a false relationship.
[20] Some Canadian provinces have formally abolished jactitation of marriage: for example, British Columbia’s Family Relations Act, R.S.B.C. 1979, c. 121, s. 75; the Alberta Family Law Act, S.A. 2003, c. F-4.5, s. 103(1)(b); and The Family Law Amendment Act, R.S.M. 1987 (Supp.) c. 16, s. 3.
[21] The Nigerian jactitation of marriage decree was considered by Madam Justice C. Picard of the Quebec Superior Court at Montreal when, on January 7, 2011, she granted Elizabeth Ihie’s claim for divorce and rejected Dr. Ikpong’s position that he had never been married to Elizabeth Ihie. In so doing, Justice Picard made credibility findings against Dr. Ikpong, who was represented at and participated in the divorce hearing in Montreal. Justice Picard found that Elizabeth Ihie did not have the means to contest the proceedings in Nigeria. She declined to consider the Nigerian decision in rendering her judgement.
The Doctrine of Collateral Attack
[22] Dr. Ikpong contends that the failure of the Quebec Superior Court to give effect to the decree from the Nigerian High Court amounts to “lawlessness”. Dr. Ikpong submits that Nigeria and Canada, as former British colonies, have similar legal systems. He argues that the Quebec Superior Court’s decision was a “complete abdication of the rule of law.”
[23] The divorce granted in the Quebec Superior Court was never appealed. Ms. Mbom argues in this proceeding that Dr. Ikpong now makes a collateral attack on the prior divorce order. She submits that this is an abuse of process.
[24] In The Doctrine of Res Judicata in Canada, (5th Ed.), Donald J. Lange, LexisNexis 2021, c. 8, the author summarized the doctrine of collateral attack as follows:
Collateral attack cases involve a party, bound by an order, who seeks to avoid compliance with that order by challenging the order itself and its enforceability, not directly but indirectly in a separate forum…. The fundamental policy behind the doctrine of collateral attack is to maintain the rule of law and to preserve the repute of the administration of justice. [Citations omitted.]
[25] The author describes collateral attacks in civil proceedings as (often) an attempt to relitigate an issue. He elaborates on the nature of the common law doctrine of collateral attack:
A valid and binding judgment, or an order of any kind, may be attacked directly in only three ways: (1) by appealing or quashing the judgment, (2) by an application to the court under the rules of civil procedure to vary the judgment, for example, on the basis of new evidence, and (3) by a separate action to set aside the judgment on the basis of fraud. A judgment cannot be attacked indirectly, that is, collaterally. If a proceeding is for a cause other than attacking a judgment directly, an attack on the judgment incidental to the cause is barred by the doctrine of collateral attack. Put another way, “a decision of a superior court is not subject to judicial review in another action,” for to do so is to conduct a collateral attack on the decision. A collateral attack presupposes that a party attacks, in the wrong forum, a judgment which could have been attacked directly but was not. The entire premise of the doctrine of collateral attack is that the court making the judgment has jurisdiction to do so, that is, there is a valid and binding judgment... [Citations omitted.]
[26] On the facts of this case, I conclude that Dr. Ikpong’s submission in Ms. Mbom’s cross-application for annulment is a collateral attack on the decision of Madam Justice Picard of the Quebec Superior Court.
[27] The Quebec Superior Court had jurisdiction over the divorce application of Ms. Ihie. Dr. Ikpong accepted the jurisdiction of the court, was represented by counsel, and defended the claims. As part of the judgment, the court ordered child support for Zainab Ikpong based on the consent of the parties, even though Dr. Ikpong had previously denied paternity for the child before the Nigerian Court.
[28] As I have said, the Ontario Superior Court of Justice does not sit in appeal of the Quebec Court’s decisions. Justice Picard heard evidence, considered the decree of jactitation issued by the Nigerian Court, made credibility findings with respect to the parties’ evidence, and concluded that Elizabeth Ihie and Dr. Ikpong were married in Nigeria on July 2, 1992. She pronounced the divorce of the parties, to take effect on the thirty-first day following the judgment. That decision was never appealed or otherwise challenged in Quebec. Now Dr. Ikpong challenges those findings in the present litigation.
[29] If Dr. Ikpong disagreed with the judgment of the Quebec Superior Court, his remedy was to appeal or seek a variation in that forum, not to come to Ontario to complain of it in a different proceeding involving a different party.
Annulment
[30] In this proceeding, Dr. Ikpong seeks a divorce but objects to an annulment on the basis that he was not previously married to Elizabeth Ihie. I find the following as facts in this case.
[31] The judgment of the Quebec Superior Court establishes that Ms. Ihie was married to Dr. Ikpong on July 2, 1992. Ms. Ihie and Dr. Ikpong lived together in Canada from 1996 to the end of 1999 or the beginning of 2000.
[32] Ms. Ihie commenced divorce proceedings in the Quebec Superior Court in December 2002. Dr. Ikpong was represented by counsel in that protracted proceeding. In the meantime, Ms. Mbom and Dr. Ikpong were married in Edmonton, Alberta on November 8, 2003. They separated on November 29, 2007.
[33] In March 2004, Dr. Ikpong signed a consent to interim orders in the Quebec Superior Court that identified Ms. Ihie as the wife and Dr. Ikpong as the husband and provided for the payment of child support for Zainab. Dr. Ikpong had not paid child support for her until the interim order was made.
[34] In 2004, Immigration Canada drew to Ms. Mbom’s attention the fact that Dr. Ikpong was previously married. In April 2005, for the first time, Dr. Ikpong disputed the validity of the marriage certificate in the Quebec divorce proceedings.
[35] In December 2005, Immigration Canada ordered Dr. Ikpong deported for misrepresenting his marital status. That decision was reversed subsequently on compassionate grounds, recognizing the impact that the order would have on Dr. Ikpong’s children and also considering the contribution his skills as a civil engineer had made to Canada.
[36] In January 2006, Dr. Ikpong commenced proceedings in the Nigerian Court for an order of jactitation of marriage and disputing paternity of Zainab, seeking a DNA order for the child, even though he and the child were then resident in Canada. He did not challenge her paternity in the Quebec divorce proceedings.
[37] On November 10, 2006, the High Court of Justice of Plateau State, Nigeria accepted the uncontested evidence of Dr. Ikpong and granted an ex parte decree of jactitation against Ms. Ihie.
[38] The Quebec Superior Court heard evidence about the validity of the marriage and granted Ms. Ihie a divorce that became final on the thirty-first day following January 7, 2011, or February 7, 2011.
[39] It is settled law that, for civil purposes, marriage is the “lawful union of two persons to the exclusion of all others”: Civil Marriage Act, S.C. 2005, c. 33, s. 2. Section 2.3 of the Act further provides:
No person may contract a new marriage until every previous marriage has been dissolved by death or by divorce or declared null by a court order.
[40] Thus, a valid and subsisting marriage is a bar to any subsequent marriage by either spouse.
[41] In Peters v. Murray (“Peters”), para. 2, the Ontario Court of Appeal set aside a divorce judgment and granted an annulment instead upon the applicant proving that the respondent was already married at the time the applicant married him. The Court found that the evidence filed by the respondent proved the fact of his prior subsisting marriage. Therefore, the Court of Appeal held that the marriage was not valid as the respondent had no capacity to enter into it: Peters at para. 3.
[42] I find on the facts in evidence that the marriage of these parties was void ab initio by reason of Dr. Ikpong’s prior subsisting marriage to Ms. Ihie. He had no capacity to contract the second marriage to the respondent while he was still married to Ms. Ihie. The parties’ marriage is therefore annulled.
Child Support
[43] The parties have three children as a result of their relationship: Idongesit Essien Anthony Ikpong born April 1, 2004, Maeyen Victoria Ikpong born May 18, 2006, and Idara Abigail Ikpong born October 22, 2009. The children are in their mother’s care.
[44] Dr. Ikpong produced a notice of assessment for 2021 showing his annual income of $30,324. On an on-going basis, he is ordered to pay to the respondent child support of $627 per month for their three children, commencing February 1, 2023 and monthly thereafter unless varied by the agreement of the parties or court order. A Support Deduction Order will also issue. Child support is payable by the father even during vacation times when the children are in his care.
[45] Dr. Ikpong is also ordered to disclose to Ms. Mbom his income tax return each year by May 1, commencing May 1, 2023. Child support shall be adjusted based on the income disclosed on June 1 of each year, commencing June 1, 2024.
[46] Since there is no claim for s. 7 expenses, none are ordered.
Retroactive Child Support
[47] The parties entered into a separation agreement dated June 10, 2010 that required Dr. Ikpong to pay child support for the parties’ three children of $700 per month.
[48] Ms. Mbom states that the payments have been intermittent, usually in the amount of $500 per month, and none have been made since the commencement of this application in February 2022. In her Answer, she claims arrears of child support from February 1, 2022, to and including January 2023 in the amount of $8,400 based on the agreed upon amount of $700 per month in the separation agreement. Since the respondent did not plead in her Answer that she claimed retroactive child support before February 1, 2022, no order will be made for previous arrears.
[49] Dr. Ikpong submits that he is due a credit against his obligation for child support until May 2025 because he purchased a vehicle for Ms. Mbom in July 2009 at a cost of $36,500. He indicates that he paid for the vehicle in 48 monthly payments of $644.38 between July 2009 and June 2013 for a total of $30,930.24.
[50] I do not agree for two reasons. Firstly, the vehicle was purchased 11 months before the parties entered into their separation agreement which contains no mention of a credit against child support for the purchase of the vehicle given to the children’s mother. Secondly, since the respondent does not claim arrears of child support before February 1, 2022, the court will not consider claims or credits preceding that date.
[51] The parties agreed in their separation agreement that the appropriate amount of child support was $700 per month for their three children. When Dr. Ikpong applied to this court for a divorce, he did not seek a variation of child support. Accordingly, I find that the applicant is liable for arrears of child support fixed at $8,400 for the period February 1, 2022, to and including January 1, 2023 (12 months x $700).
Costs
[52] The respondent is entitled to her costs on a partial indemnity basis. If the parties cannot agree on costs, either may apply to the trial coordinator within thirty days for an appointment to argue same, failing which costs will be deemed settled. Costs submissions are not to exceed 5 pages. The parties may file their submissions in paper if so advised.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: February 23, 2023
COURT FILE NO.: FS-22-0019-00 DATE: 2023-02-23
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Anthony Akpan Ikpong Applicant
- and - Theresa Archibong Mbom Respondent
REASONS ON MOTION FOR SUMMARY JUDGEMENT Pierce J.
Released: February 23, 2023