Court File and Parties

COURT FILE NO.: FS-24-40660 DATE: 2024-08-21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Meena AbdelMaseeh Adly Fouad, Applicant -and- Kexin Ji, Respondent

BEFORE: FL Myers J

COUNSEL: Meena AbdelMaseeh Adly Fouad on her own behalf.

READ: August 21, 2024

Endorsement

[1] This is an uncontested trial that was dealt with in writing. The respondent consents to the relief sought.

[2] The parties ask to annul their brief marriage.

[3] The parties were married civilly on April 23, 2023. They never lived together pending their religious marriage. They then decided to cancel the planned religious wedding. They never consummated their marriage.

[4] The parties’ evidence on what happened is sparse. The applicant swears that the parties’ “minds did not meet.” The respondent uses the same phrase in his answer. The applicant explains:

Since both parties are Christians, they made the decision to abstain from consummating the marriage until after the church ceremony. However, they later discovered that they have no intention of pursuing the marriage due to cultural and life circumstances. Consequently, the church wedding was canceled, and both individuals are willing to proceed with the annulment of the civil marriage.

[5] Although the parties consent, before I can grant an annulment, I still must find that they have proven that they meet the requirements of the statute. If they do not meet the requirements for an annulment, they will need to resort to the usual method to dissolve a civil marriage under the Divorce Act, RSC 1985, c 3 (2nd Supp).

[6] Marriages in Ontario may be annulled under the federal statute, the Annulment of Marriages Act (Ontario), RSC 1970, c A-14.

[7] In Heil v. Heil, 1942 CanLII 3 (SCC) the Supreme Court of Canada decided that under this statute, an annulment is not available simply because parties choose to refrain from consummating their marriage. Rather, to support an annulment, there must be an “incapacity of some kind” that prevents consummation. The incapacity may arise from an emotional or “mental condition” (to use the terminology of the time). To support an annulment, the parties must establish that one or both of them suffers from more than an “obstinacy of a momentary nature.” Rather, there must be something amounting to an “invincible aversion” to consummation.

[8] This case is very similar to the facts in the decision written by my colleague Faieta J. in Arshad v. Ahmed, 2022 ONSC 2061. In that case, the parties would not consider consummation until the completion of all three steps required for their proposed religious marriage. Then they called off their wedding after they had completed just the first step. So, as is the case here, there is a religious and cultural aversion to consummation. But, in both cases, the need for annulment is brought on by voluntary acts of (a) getting married civilly before the religious ceremony, and then (b) canceling the planned religious marriage.

[9] The legal question arises of whether there is “incapacity” to consummate for the purposes of the Annulment of Marriages Act (Ontario) where the parties voluntarily choose not to complete their proposed religious wedding.

[10] In his thorough and thoughtful decision, Faieta J. concluded that these facts do support an annulment. He wrote:

[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.

[11] Faieta J. relied, in part, on the decision of the British Columbia Court of Appeal in Kaur v. Singh, 2021 BCCA 320. The case involved similar facts as well. The parties were married civilly and lived together for three months. They believed they could not consummate the marriage until they had been married in a Sikh religious ceremony. But they broke up before being married in their religion.

[12] Para. 17 of the Court of Appeal’s reasons provides:

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. …

[13] I agree. I also agree with Faieta J. that in Ontario a sincerely held religious belief can be an “invincible aversion” to consummation and can amount to an “incapacity of some kind” as required by the common law as incorporated into the statutory annulment scheme.

[14] Accordingly, I grant the annulment as sought.

[15] Finally, I echo Justice Faieta’s call for modernization of the law of annulment. I cannot say it any better than by repeating para. 19 of Justice Faieta’s decision in Arshad:

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.

FL Myers J

Date: August 21, 2024