Ontario Superior Court of Justice

Court File No.: FS-24-40187
Date: 2025-07-14

Between:
S.M., Applicant
– and –
R. F., Respondent

Applicant Counsel: Barry Nussbaum and Rebecca Ye
Respondent Counsel: Eni Hanxhari
Heard: January 20, 2025
Judge: J. R. Presser

Judgment

Trial of the Issue of Annulment of Marriage

Introduction

[1] The parties, S.M. (applicant husband) and R.F. (respondent wife), were married for just under two years. The husband says that the marriage was never consummated. He seeks an annulment. The wife says that the marriage was consummated. She asks the court to dismiss the husband’s claim for annulment and allow the parties to proceed to a divorce.

[2] A focused trial of the issue of annulment of the marriage proceeded before me.

[3] At the outset of the trial, counsel for the respondent requested an order anonymizing the case by initializing the parties’ names. The applicant did not oppose this request. Given the highly private and sensitive nature of the issues and evidence in this case, I granted the request. I ordered that the parties’ names shall be initialized to protect their privacy and dignity.

[4] For the following reasons, I have concluded that the marriage was not consummated, and that the parties were incapable of consummating it. The marriage is annulled.

Background and Evidence

1. Overview

[5] This was an arranged marriage. The parties were married in India on December 21, 2021. The applicant is a Canadian citizen who resides in Toronto. He sponsored the respondent to come to Canada as his spouse. They started living together in Toronto on July 8, 2023, after the respondent received her permanent resident status.

[6] The parties’ date of separation is in dispute. The applicant husband says the parties separated on October 28, 2023. The respondent wife says they separated on November 23, 2023.

2. The Parties’ Marriage is Arranged and the Wedding Occurs

[7] The parties are Indian and Muslim. The applicant testified that arranged marriages are common in their culture.

[8] The older siblings of the respondent wife and the applicant husband were married in India on August 2, 2019. The siblings’ wedding was the first time the parties encountered each other.

[9] At some point in February 2020, the parties’ older siblings presented, to their respective fathers, a proposal for the marriage of the applicant and the respondent. The families entered alliance discussions. The applicant’s older brother asked the respondent’s older sister, presumably as representative of the respondent’s family, not to seek other alliances for the respondent for two years.

[10] Although this is not specifically in evidence, it appears that the respondent and her family agreed not to seek other alliances for a two-year period.

[11] Ultimately a marriage between the applicant and the respondent was arranged, with their agreement.

[12] The applicant’s evidence is that when the marriage was initially being discussed, he was not aware of it. He testified that his family first spoke to him in the spring of 2020 about a possible marriage to the respondent. He was still a student at Centennial College in Toronto at the time. He said he did not immediately agree to marry the respondent. He wanted to finish school. He testified that he took some time to think about it. The respondent’s family members were approaching him to ask whether he was interested in marrying the respondent. Other people asked him repeatedly. The applicant said he felt “slightly pressured” to agree. The applicant’s evidence is that he made the final decision to marry the respondent, but that it was a collective or family decision as well.

[13] The respondent’s evidence is that the parties’ marriage is the product of mutual consent and cultural norms, without any undue influence or coercion from either family.

[14] On March 30, 2021, according to the respondent, the applicant wrote to her directly for the first time. He messaged her via WhatsApp to wish her a happy birthday. After that, the parties began exchanging messages to get to know each other better. The respondent’s evidence is that the parties had intermittent friendly interactions over the course of nine months. She says that they were both enthusiastically looking forward to their marriage.

[15] On December 18, 2021, the applicant and his family flew to Hyderabad, India for the wedding. On December 19, 2021, the parties were formally engaged to be married.

[16] The wedding took place in Hyderabad on December 21, 2021. According to the respondent, it was a grand occasion, with over 500 guests in attendance. Photos of the wedding were filed in evidence, depicting what appears to be a beautiful and lavish celebratory occasion.

[17] In the period immediately after the wedding, from December 21 to 26, 2021, the parties had several family gatherings, parties, and receptions. Both parties agreed that, although they were married and stayed together alone those nights, there was no sexual intimacy between them at that time.

[18] The applicant’s evidence is that he did not try to consummate the marriage on the wedding night or in the several days after it. He testified that he wanted the respondent to feel comfortable. He says he decided to wait until they got to their honeymoon so that they would have the utmost privacy before trying to consummate the marriage.

3. The First Honeymoon in Dubai, December 26, 2021 to January 1, 2022

[19] On December 26, 2021, the parties flew to Dubai for a six-day honeymoon together.

[20] The respondent’s evidence is that there was no sexual intimacy between her and the applicant on the first two nights of the honeymoon, December 26 and 27. She says this was because the applicant did not initiate sexual contact on those days. The respondent’s evidence is that she relied on the applicant to take the sexual lead, as is customary in the parties’ culture and society.

[21] The applicant’s evidence is that he did not immediately try to initiate sexual contact with the respondent when they got to Dubai. He testified that he made efforts to try to get to know her. He sought verbal consent to sexual contact. He says he asked whether he could kiss her, and that she panicked and said no. The applicant testified that he thought this was okay, because it might take some time for the respondent to feel comfortable enough for sexual intimacy between them to occur.

[22] According to the respondent, the parties did consummate the marriage by having sexual intercourse on the night of December 28, 2021 in Dubai.

[23] According to the applicant, the parties did not consummate the marriage by having sexual intercourse on the night of December 28, 2021 in Dubai.

[24] The applicant’s evidence is that as the parties got to know each other, the respondent ultimately consented to have sexual intercourse with him. However, the applicant said, when he tried to touch the respondent sexually, she would start shaking tremendously and she was noticeably fearful. She nevertheless confirmed that she was consenting to proceed. When the applicant tried to insert his penis into her vagina, the respondent quickly pushed him away. He testified that he was not able to insert his penis. He said the tip of his penis just slightly went into the respondent’s vagina when she panicked and pushed him away. He testified that she then hid under a blanket, shaking aggressively. The applicant’s evidence is that this scared him a lot, so he and the respondent stopped trying to have intercourse for the rest of that night. His evidence is that he was not able to fully penetrate the respondent. For this reason, he does not consider the marriage to have been consummated. His evidence is that any time he and the respondent tried to be intimate, the respondent was too scared to touch him. Whenever she touched him, her hands would shake. This made him feel sad and uncomfortable because he could tell she was not enjoying herself.

[25] The respondent’s evidence is that, on the night of December 28, 2021, the applicant inserted part of his penis into her vagina. She explained that penetration lasted for more than one minute and less than five minutes. She acknowledged that she pushed the applicant away from her, and that he then retreated. The respondent testified that she wanted to have sexual intercourse with the applicant, but that she was a virgin. She said her body was responding to penetration. She did not intend to push the applicant away.

[26] In a subsequent text exchange, dated May 16, 2023, the parties discussed their sexual contact in Dubai on December 28, 2021, as follows:

Respondent: ... we got intimate in Dubai and you in fact inserted half way and moved back. If you say that it’s because I was making sound then every woman does this and you should know this. Wives do feel pain and that is very normal. You knew everything about intimacy then why not this? I asked Nida and she told me she was also shivering.

Applicant: this is a complete lie. First of all, it was nowhere close to halfway. It was about 10% barely. And I didn’t move back. You are the one that pushed me away so I stopped. And I do know about intimacy and pain. That is the exact reason why I was so gentle and patient with you. So please don’t lie and Allah knows what the facts are.

[27] The respondent disagreed with the applicant’s narrative of their sexual intercourse. She disagreed that only 10% of his penis was able to penetrate her. She confirmed that in her understanding the applicant was able to penetrate her and that, as a result, the marriage was consummated.

[28] In his testimony, the applicant maintained that he was only able to insert the tip of his penis when the respondent immediately panicked. He said it was a split second. It could not have been half of his penis that was inserted in the time before the respondent panicked and pushed him away. He maintained that he and the respondent did not have sexual intercourse and that the marriage was not consummated.

[29] Both parties agreed that the December 28, 2021 sexual encounter in Dubai was the only occasion on which there was any contact that could be considered penetrative sexual intercourse.

4. Return to Hyderabad, January 1 – 9, 2022

[30] On January 1, 2022, the parties flew back to Hyderabad from Dubai. They spent eight days together in Hyderabad.

[31] The applicant’s evidence is that during this time, he and the respondent again tried to consummate the marriage, but that the respondent was not able to do so. The applicant explained that whenever the parties had physical contact, the respondent was very nervous and would shake aggressively and noticeably. The applicant said he thought this was natural because she was a virgin. He expected that her nerves and fear would go away with time. He explained he continued to try to make the respondent feel at ease by respecting her boundaries and trying to make an emotional connection with her. The applicant said that in Hyderabad, he and the respondent tried to engage in foreplay. He would lead her hands toward his private parts, but that this was the extent of their intimate relationship. His evidence is that the parties never had sexual intercourse.

[32] The respondent’s evidence is that over the course of the eight days they spent in Hyderabad in January 2022, the parties engaged in foreplay activities such as manual stimulation and non-penetrative sexual activity. The respondent disagrees with the applicant’s evidence that she was unwilling or unable to engage in intercourse. She says that, at all times, she was willing, eager, and wanted to participate. However, in the respondent’s evidence, the applicant would blame her and shame her whenever she expressed discomfort, like when she felt cold due to low room temperature.

[33] On January 9, 2022, the applicant returned to Canada. The respondent remained in India. The respondent assured the applicant that the next time they met, whether in India or in Canada, they would be able to consummate the marriage.

5. The Parties Live Apart – January 9, 2022 to October 28, 2022

[34] After the applicant returned to Canada, the parties maintained regular communication, talking and texting daily through WhatsApp, iMessage, and telephone calls.

[35] The applicant’s evidence is that he explained to the respondent how important it was for them to consummate their marriage. He says that the respondent told him she understood the gravity of the situation, and that she reassured him that they would be able to consummate the marriage when they were next together.

[36] The respondent’s evidence is that she applied for a visitor visa to come to Canada to visit the applicant. Her visitor visa was rejected. According to the respondent, after her visa was rejected, the applicant decided to visit her in Hyderabad. He arranged what he called a second honeymoon to Kashmir.

[37] The applicant maintains that the only reason a second honeymoon was necessary was that the parties did not consummate their marriage during the first honeymoon.

6. The Second Honeymoon in Kashmir

[38] On October 28, 2022, the applicant flew back to Hyderabad to be with the respondent.

[39] The applicant’s evidence is that the first night he was there, he and the respondent tried to have sex, but the same problems persisted. The applicant says that he tried digital penetration, but the respondent would be shaking tremendously, and her private parts would tighten up. He says that digital penetration was not possible. The applicant says that he was vocal about his concerns and told the respondent that they needed to consummate their marriage because he would be leaving soon, and they may not get another chance for a while. According to the applicant, the respondent agreed. The applicant maintains that the parties tried to have sexual intercourse many times, but the respondent was too anxious, shook violently, and her private parts tightened up to the point that penetration was not possible.

[40] The respondent’s evidence is that the parties were sexually intimate in Hyderabad. However, she says, the applicant did not attempt any penetrative sexual activity. She maintains that he wanted only non-penetrative sexual contact.

[41] On November 3, 2022, the parties travelled to Kashmir for their second honeymoon together.

[42] The applicant’s evidence is that they spent every night in Kashmir trying to have sexual intercourse, but the respondent was unable to do so. According to the applicant, the respondent was so anxious and nervous that her vagina would become too tight even for digital penetration. He says that he and the respondent did get intimate in other ways. They would kiss and touch each other’s bodies. However, according to the applicant, the respondent was shaking when she touched him. He said she was nervous and trembling. The applicant testified that the respondent had an aversion to touching him. He felt that she was uncomfortable, despite her verbal consent to continue. It made the applicant uncomfortable to see the applicant shaking. He maintains that whenever they tried to have sex, the respondent would shake violently, and they would not be able to proceed.

[43] After each attempt, the applicant says he would discuss with the respondent what her concerns were, why she was unable to have sex, and why this was not disclosed to him prior to marriage. According to the applicant, the respondent never provided a “proper reason” and simply reassured him that she just needed more time. The applicant says that the respondent told him that if she came to Canada, she would be able to consummate.

[44] The respondent’s evidence is that she and the applicant were intimate on their first night in Kashmir, engaging in non-penetrative sexual activity. She says it was unclear to her why the applicant was not performing penetrative intercourse. She says that during this time, he would verbally abuse her, insisting that she had a problem. The respondent maintains that she repeatedly tried to reassure the applicant, telling him that she was fine, and they could proceed, but that he declined and went to sleep.

[45] According to the respondent, the applicant refused to be intimate with her for the rest of the honeymoon. She says she wore a night dress and requested intimacy, but the applicant made excuses not to engage sexually with her and refused to do so.

[46] The parties returned to Hyderabad on November 10, 2022. The respondent felt that the applicant’s mood had changed, and that something was wrong. She asked him why he seemed upset. According to the respondent, the applicant told her that he was upset that she did not plan any celebration for his birthday on November 6th in Kashmir.

[47] The respondent and her family organized a birthday celebration for the applicant at her father’s farmhouse.

[48] While in Hyderabad, the parties stayed at the respondent’s parents’ house. She says that during this stay, she requested intimacy with the applicant, but that he refused. She says he told her that he did not want to engage in sexual activity on her parents’ bed. The respondent found this unusual because the applicant had not taken issue with having sexual relations on her parents’ bed in the past.

[49] The applicant’s evidence is that the respondent never initiated sexual contact with him. He acknowledged that she may have worn lingerie but maintained that she never initiated intimacy. He denied that he did not want to have sexual contact on the respondent’s parents’ bed. Rather, according to the applicant, the respondent was menstruating at that time. He said that Islam does not permit sexual contact when a woman has her period.

[50] On November 15, 2022, the applicant returned to Canada. The respondent remained in India.

7. The Period Between the Applicant’s Return to Canada and the Respondent’s Immigration to Canada

[51] When he returned to Canada, the applicant told his parents that he and the respondent had not yet consummated the marriage. He understood that his mother spoke with the respondent and her mother in private and suggested that the respondent go to an esteemed gynecologist in Hyderabad to investigate whether there was a physical impediment to intercourse. According to the applicant, the respondent totally rejected the idea of seeing a doctor at that time.

[52] The respondent did consult the gynecologist recommended by the applicant’s mother in Hyderabad on March 20, 2023. A copy of the doctor’s record of the visit was filed as an exhibit. The record indicates that the respondent came for a “gynae checkup,” wanted preconception counselling, and mentioned non-consummation of marriage and that her husband was in Canada. There is no indication of a diagnosis of any physical impediment to penetrative sexual intercourse. The doctor made a note recommending that the respondent use KY jelly as a lubricant. I infer that the gynecologist found no physical impediment to sexual intercourse.

[53] The applicant’s evidence is that he was not aware that the respondent had consulted a gynecologist in India until he received a text message to that effect from her father on August 25, 2023. He maintained that he had never seen the doctor’s note.

[54] On May 3, 2023, the applicant sought advice about the parties’ non-consummation of their marriage from his Imam, Yusuf Badat. According to the applicant, the Imam told him to be patient and give the respondent more time. He said the Imam told him that if the issue persisted, he would be able to seek an annulment under both Islamic and Canadian law. The applicant’s evidence is that he listened to the Imam’s advice and gave the respondent more time.

[55] On May 15, 2023, the applicant sent a detailed email to the respondent in which he expressed his concerns about the fact that the parties had not yet consummated their marriage. He outlined the history of the parties’ sexual contact from his perspective. He noted that the respondent had repeatedly told him that they would engage in sexual intercourse the next time they were together. However, each time they saw each other, she was not be able to do so. The applicant also noted that the respondent had not been able to provide him with any reason as to why she has not been able to have intercourse with him. He expressed that he was “utterly disappointed, unsatisfied, frustrated and immensely stressed.” The applicant wrote that, according to Islamic law, he had the right to end the marriage because of non-consummation, but that he had decided to give her one last chance. He asked her to give him written assurance before she moved to Canada that she would make efforts and changes and be able to consummate the marriage.

[56] The respondent replied to the applicant’s email on May 21, 2023. She wrote that she was grateful that the applicant was understanding and compassionate at the beginning of their marriage and did not force sexual contact. She said she was “extremely nervous, scared and had fear of pain during consummation.” She wrote that on the parties’ honeymoon in Dubai, the applicant did try to consummate and that she wanted to as well, but “was very shy and nervous.” The respondent went on to express that she felt deprived of the love, trust, mutual understanding, and respect that are necessary components of a strong marriage. She explained that she felt the applicant was overly critical of her, which “demotivated” her. She wrote that there was a lack of demonstration of affection between them, which made her feel insecure, vulnerable, and led her to question the bond between them. The respondent concluded her email by saying that she wanted to focus on building a better and stronger bond with the applicant. She said that she wanted to have a fresh start with the applicant, that she was coming to Canada to be with him, and that she expected him to give her his time, affection, love, and care. She wrote, “don’t worry about the consummation because that will of course happen,” and concluded by saying that she wanted to conceive and was looking forward to starting their family.

[57] The applicant’s evidence is that the respondent reassured him during their phone calls in this period that she would be able to consummate the marriage when she came to Canada.

8. The Respondent Moves to Canada; The Parties Separate

[58] On July 8, 2023, the respondent immigrated to Canada as a permanent resident. The applicant sponsored her as his spouse.

[59] The applicant says he had high hopes that he and the respondent would finally be able to consummate their marriage when she came to Canada. His evidence is that they tried everything they could. The respondent bought lingerie, they would take showers together, they tried using lubricant, and generally tried to get more comfortable around each other. The couple started with digital penetration, and at one point the applicant says he was able to insert one finger into her vagina. However, according to the applicant, the respondent immediately pulled away, started shaking, and began hiding under the blanket. The applicant’s evidence is that he and the respondent tried to have intercourse almost every night, but the respondent was very nervous and had an immense fear of sexual intimacy. He maintains that she was scared to touch him. He suggested oral sex, but the respondent refused.

[60] The respondent says that she and the applicant were intimate on several occasions during the time they lived together in Canada. Her evidence is that they tried to have penetrative intercourse on several occasions, but the respondent could not penetrate her. She testified that the applicant could not sustain an erection. The respondent testified that she believed the applicant suffered from erectile dysfunction. She acknowledged that this means that the applicant has a physical condition that makes it impossible for him to have sexual intercourse.

[61] The respondent’s evidence is that she would often ask for intimacy, but the applicant refused to try to have penetrative intercourse unless she went to the doctor to get herself checked. The respondent’s evidence is that the applicant was avoiding intimacy with her and that he was also demonstrating behavioural issues such as anger and rudeness toward her.

[62] The applicant’s evidence is that he asked the respondent if they could seek professional help together, by seeing an Imam, a psychiatrist, or a gynecologist. According to the applicant, she refused each suggestion. The respondent maintains that she had already consulted the gynecologist in Hyderabad and had been given a clean bill of health. She says she did not refuse to see the Imam with the applicant, but that he had scheduled counselling appointments with the Imam without consulting her and she was not available on those dates.

[63] The applicant met with the Imam on his own on October 13, 2023. According to the applicant, the Imam told him that he could seek an annulment under both Canadian and Islamic law. The applicant’s evidence is that he formally communicated his desire to separate from the respondent to the Imam during that meeting on October 13, 2023.

[64] The applicant moved out of the parties’ shared apartment on October 28, 2023. This is when they separated, according to him. The respondent says that the applicant stayed away from their home as of October 28, 2023, because her sister had come to stay with them. She did not understand that they were separated at that point. The respondent’s evidence is that the parties separated on November 23, 2023 when the applicant sent her a text message communicating that he was seeking an annulment on grounds of non-consummation and that he would seek a legal divorce if she did not agree with the annulment.

[65] On November 29, 2023, the respondent met with the Imam. She also sent an email to the Imam, which was filed as an exhibit. In it, the respondent wrote that she wanted to ask her husband to reconcile and give the marriage a chance. She wrote “we did not consummate our marriage yet but I got myself checked by the doctor and the report says there is no hindrance in sexual intercourse.” The respondent asked the Imam to call her and the applicant together and give them marriage counselling so that they could work on their marriage to resolve their differences.

[66] The Imam emailed the applicant the same day asking whether he was open to reconciliation. The applicant responded that he was not open to reconciliation, noting that the parties had tried to consummate many times over almost two years, but the respondent was not able to do so. He was not prepared to continue with the marriage in these circumstances. He testified that he was too upset and frustrated to try to continue.

[67] On November 30, 2023, Imam Yusuf Badat sent the respondent a notarized letter confirming his advice that the applicant was entitled to end the marriage Islamically and legally on grounds of non-consummation.

[68] A number of post separation text messages between the applicant and the respondent were filed as exhibits. In most of them, the respondent is pleading with the applicant to reconcile with her. In a message dated December 17, 2023, the respondent wrote that consummation had happened between the parties, but intercourse did not. She expressed the hope that the parties would reconcile, and intercourse would also happen.

[69] The respondent explained that she understood from the Imam’s website that in Islam, consummation occurs when a couple spends time in seclusion after their wedding ceremony. Intercourse is not required. She also explained that she was advised by her lawyer that legally, consummation is a singular event within a marriage that occurs with sexual intercourse regardless of seminal emission. The respondent testified that when she received this advice, she realized that she and the applicant had had sexual intercourse because he did penetrate her in Dubai. She had previously accepted the applicant’s assessment that their marriage had not been consummated. She had previously believed that, although the applicant had penetrated her, they had not had sexual intercourse because he had not ejaculated. She now understood that she and the applicant had had sexual intercourse and consummated their marriage.

[70] The respondent filed a screen shot of a page containing information about sexless marriages in Islam from Imam Yusuf Badat’s website as an exhibit. It says:

A marriage is still valid if sexual intercourse is not taking place.

In Islam, consummation of marriage occurs when the couple spend some time in seclusion after the marriage ceremony (nikah). Intercourse is not necessary for consummation of marriage in Islam. ...

If both partners have agreed not to engage in sexual intercourse, then there is no issue. The marriage is intact. If however, either the husband or the wife is demanding sexual intimacy, and a spouse is not making themselves available for this, then the other partner has a right to initiate a divorce and or end the marriage.

[71] Imam Badat testified at trial that in Islam, there are two forms of consummation. The first, called khalua, refers to the possibility of consummation. It is completed when two individuals who have just been married spend some time alone together. The second form of consummation, khalua saheeha, is completed when actual sexual penetration occurs. The Imam explained that in Islamic law, khalua saheeha is required for marriage. If penetrative sexual intercourse has not occurred, there is no khalua saheeha, and the marriage can be Islamically annulled.

9. Medical and Psychological Evidence

[72] No gynecologist, psychiatrist, or psychologist testified at this trial. There was no expert opinion evidence offered as to the respondent’s physical ability or inability to participate in penetrative sexual intercourse. There was no expert opinion evidence offered as to any psychological issues, or lack thereof, that may or may not have contributed to any challenges on the respondent’s part in participating in penetrative sexual intercourse.

[73] The respondent’s evidence is that she underwent a number of examinations to determine whether there was a physical cause for any difficulties she was having in participating in penetrative sexual intercourse. She filed a number of medical doctors’ notes in relation to these, as well as some notes from a general psychologist.

[74] As outlined above, the respondent consulted a gynecologist in India on March 3, 2023. The gynecologist’s note was filed as an exhibit.

[75] On November 18, 2023, the respondent was examined by a family doctor, Dr. Nazia Rahman, at Maple Clinic in Scarborough. The doctor’s note, of the same date, indicates only that she examined the respondent, who was able to tolerate pelvic exam without any complications. A second note from Dr. Rahman, dated November 29, 2023, indicates that the respondent “has no hindrance in sexual intercourse.” A third note from Dr. Rahman, dated January 27, 2024, indicates that the respondent is medically stable, with no evidence of depression or of being at high risk. She also noted that the respondent had no signs of vaginismus, which according to the evidence of the respondent is a condition in which the vagina constricts and spasms, making the vagina very small and preventing sexual activity and medical examinations.

[76] The respondent’s evidence is that she investigated obtaining a forensic psychological assessment and report for trial. However, she deposes that she could not afford the $10,000 retainer for a forensic psychologist to assess her and write a report. Instead, the respondent consulted a general psychologist, Dr. G. Khan. She filed Dr. Khan’s notes from two psychotherapy appointments, dated November 28, 2024 and December 10, 2024. These notes reflect that the respondent told the psychologist that she was going through a separation from her husband, who says that she is afraid of sexual intimacy. She self-reported to the psychologist that her mood was normal, and that she was not experiencing any anxiety. Ultimately, the respondent asked Dr. Khan for a letter for court purposes. He refused on the basis that he is not a forensic psychiatrist or forensic psychologist.

[77] The respondent also filed a note from her family doctor, Dr. Pandanilathu Kunjummar Shakkeela, dated December 11, 2024. This note says that the respondent is under this doctor’s care; that she is medically and psychologically stable; that she does not suffer from any mental disorder; and that a pelvic ultrasound was done, and the results indicate that everything is within normal limits.

10. Evidence Relating to the Respondent’s Motivation for Marrying the Applicant

[78] The applicant testified that he believes the respondent married him to obtain immigration status in Canada. His evidence was that he could see no other reason for her to have married him. He earned less money than she did, as he was still a student when they married. Further, she was not able to consummate the marriage and have children. Because of this, he believed that her only motive for marrying him was to gain permanent resident status in Canada.

[79] When asked in cross-examination whether it was possible that the respondent married him for love, the applicant responded that he had never denied that she loved him. He acknowledged that they both loved each other.

[80] The respondent testified that she came to Canada solely to be with the applicant. She has Bachelor of Engineering and Master of Engineering degrees from a reputable university in India. She graduated with distinction in the first division. Before marriage, the respondent was employed as a senior silicon design engineer at Advanced Micro Devices (AMD) in India, a global leader in chip manufacturing. This was a well-paying job, which afforded her a salary that was approximately 357% higher than the average annual salary in India. Her evidence is that she lived comfortably with her parents in a property they owned. She was fortunate enough to have a personal driver and housekeepers for regular domestic chores.

[81] The respondent denies the applicant’s allegation that she only married him to gain immigration status in Canada. She maintains that her life prior to marriage in India was already comfortable and secure. She did not need or want to come to Canada to have a better life or standard of living. She came to Canada to live with the applicant.

[82] In her May 21, 2023 email to the applicant, the respondent wrote, “... you are the guiding light in our relationship. I’m coming there leaving my house, my parents, my job, my siblings, my comfort only for you.” As noted, in numerous post separation texts, the respondent pleaded with the applicant to reconcile with her and give their marriage another chance.

11. Evidence Relating to Cultural Norms and Stigma

[83] The respondent deposes that she does not consent to the applicant’s request for annulment. She believes that it would be morally and ethically wrong to invalidate her marriage based on what she believes to be a false assertion that there was no consummation. The respondent deposes that she and the applicant cohabited as husband and wife, attended various events, celebrations, and prayers at local mosques as a married couple. She says that they were generally recognized as such by family, friends, and the wider community. The respondent says that she cannot accept the applicant’s false allegations when they did share their lives together. In her eyes, the applicant was her husband, and they did consummate their marriage legally and religiously.

[84] The respondent deposes that annulment after penetration would mean that she was never truly married but was not a virgin. This would mean that she had been used and discarded by a man. In her community, according to the respondent, this would result in shame and in her being an outcast.

[85] The respondent seeks a divorce. In her view, it would make no practical difference to the applicant to be divorced instead of having the marriage annulled. But for her, a divorce would mean that she lost her virginity while married. She would not have the shame and stigma of having lost her virginity outside of marriage.

[86] The applicant testified that he was seeking an annulment rather than a divorce because both he and the respondent know that the marriage was not consummated. They are both virgins. In the applicant’s opinion, an annulment would confirm that both he and the respondent are still virgins. This, he testified, would make it easier for both of them to get married again in their culture. He maintained that the most important thing in terms of future marriage prospects for Muslims is to be a virgin.

Issues

[87] The issues for my determination are as follows:

1. Should this marriage be annulled for non-consummation?
2. Should this marriage be annulled on the basis of any other ground, such as immigration fraud by the respondent or lack of consent to marry on the part of the applicant, arising from coercion, undue influence, or duress?

Analysis

1. The Law in Relation to Annulment Generally

[88] Parties seeking to annul their marriage can do so on the basis of the Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A-14 (“AMAO”). This statute provides that the law of England on July 15, 1870 relating to the annulment of marriages is the law in Ontario. It also establishes that this court has jurisdiction for all purposes under the AMAO.

[89] The AMAO does not set out the circumstances under which an annulment can be granted. This has been developed by the common law: Lowe v. A.A. and Lowe v. M.P., 2018 ONSC 3509, para 33.

[90] The common law establishes that annulment and divorce are two different ways of ending a marriage. In Lowe, at para. 34, the court cites Professor H.R. Hahlo, “Chapter 10: Nullity of Marriage” in Studies in Canadian Family Law (Toronto: Butterworths, 1972) p. 651, for an explanation as to the distinction between divorce and nullity:

Whereas a divorce is based on a cause arising after a valid marriage has come into existence (e.g. adultery, cruelty, supervening insanity, or marriage breakdown), a decree of nullity is based on a cause existing at the time of the marriage (i.e. a prior existing marriage, relationship within the prohibited degrees, insanity at the time of marriage). And while a decree of divorce dissolves the marriage as from the date when the decree becomes absolute (ex nunc), a decree of nullity, depending on the ground of annulment, either declares that there never was a valid marriage or dissolves it with retroactive effect (ex tunc).

[91] Annulment does not necessarily leave parties without the legal protections on relationship breakdown that would otherwise have been afforded to them by marriage: Lowe, at para. 46. The Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), extends the definition of “spouse” under s. 1(1) to include two persons who have “together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.” In other words, a party who enters a marriage that is annulled may still make claims for support or equalization of net family property under the FLA, if they entered the marriage in good faith: Lowe, at paras. 46-49.

2. Should this Marriage be Annulled for Non-Consummation?

[92] I have come to the conclusion that the parties’ marriage was never consummated. I am satisfied that the parties are incapable of consummating the marriage. Accordingly, the requirements for annulment have been met. The marriage shall be annulled.

(a) The Law in Relation to Annulment for Non-Consummation

[93] Determination of the issue of annulment on the basis of non-consummation turns on two central questions: (i) whether the marriage was consummated; and, if not, (ii) whether one or both of the parties were incapable of consummation, as opposed to merely wilfully refusing to consummate: Gajamugan v. Gajamugan, [1979] 3 A.C.W.S. 122, at pp. 282-3; S.S.C. v. G.K.C., 1999 ABQB 822, paras 15-20.

[94] The first inquiry requires the court to determine whether “ordinary and complete intercourse” has occurred: S.S.C., at para. 15. The definition of consummation as requiring “ordinary and complete intercourse” was originally set out in D. v. A. (1845), 1 Rob. Eccl. 279, 163 E.R. 1039 at 298 [Rob. Eccl.], at pp. 389-390 as follows:

Sexual intercourse, in the proper meaning of the term, is ordinary and complete intercourse; it does not mean partial and imperfect intercourse: yet, I cannot go the length of saying that every degree of imperfection would deprive it of its essential character. There must be degrees difficult to deal with; but if so imperfect as scarcely to be natural, I should not hesitate to say that, legally speaking, it is not intercourse at all.

[95] In S.S.C., at para. 15, the court relied on Professor Davies’ text, Power on Divorce and Other Matrimonial Causes, 3rd Edition Volume I, at page 84, for the following legal definition of “ordinary and complete intercourse”:

For the intercourse to be ordinary and complete, full and complete penetration is necessary; and the emission of seed, the possibility of procreation, or the achievement of sexual satisfaction are not necessary ingredients. However, the question of whether there has been consummation of a marriage or not is primarily a question of fact and where a husband’s penetration of the wife was so transient that it could not, without violation of the language, be described as ordinary and complete the marriage was held not to have been consummated.

[96] If the court determines that the marriage has been consummated, that ends the inquiry. The marriage is not voidable and may not be annulled on the basis of non-consummation.

[97] If, however, the court determines that the marriage has not been consummated, it must go on to consider whether at least one of the parties is incapable of engaging in intercourse: Heil v. Heil, 1942 S.C.R. 160, at pp. 162-164. A marriage may only be annulled where it cannot be consummated, not where there is a wilful refusal to do so: Heil, at pp. 162-3; Razavian v. Tajik, 2019 ONSC 5662, para 11, citing Khan v. Mansour.

[98] The inability to engage in sexual intercourse may be physical or structural, or it may be psychological or mental: Heil, at pp. 162-3. Where a refusal to engage in sexual intercourse is not caused by “obstinacy or caprice” but by “an invincible repugnance to the act of consummation,” this will ground a finding that a party is not capable of consummation; Heil at pp. 163, citing G. v. G., [1924] A.C. 349.

[99] A repugnance to performance of the sex act that is restricted to one’s spouse, rather than to the sex act in general, will be sufficient to constitute incapacity to consummate. A person may be sexually incapable with respect to one person, but sexually capable with respect to others: Foisy v. Foisy (Otherwise Loyer), [1954] 4 D.L.R. 155, at p. 157.

[100] Mental or psychological incapacity to engage in sexual intercourse may include “such a degree of nervousness or hysteria as to render intercourse impossible”: Foisy, at p. 157.

[101] Where consummation has not occurred as a result of an aversion to the partner or the sex act, the parties must have at least made attempts to consummate. There should not be a conclusion of non-consummation where there was lack of effort and commitment to consummate by the parties: Falk v. Falk, 1999 ABQB 570, para 25.

[102] The inability to consummate must be of a permanent character. This requirement will be satisfied if the evidence establishes that “the problem was persistent and of such a nature as to not permit ‘ordinary and complete intercourse’”: S.S.C., at para. 20.

[103] Where there is no direct medical evidence of physical or psychological inability to consummate, the court may infer such inability from the evidence, the conduct of the parties, or the circumstances, absent evidence to the contrary: Jones v. Jones; Razavian, at paras. 12-16; Szrejher v. Szrejher.

[104] The applicant’s incapacity may be based on normal, predictable reactions that need not be expressed in pathological terms: J.G. v. S.S.S., 2004 BCSC 1549, para 61.

(b) Application to this Case

[105] Having carefully reviewed the evidence, submissions of the parties, and governing caselaw, I have determined that the parties’ marriage was not consummated because there was no act of “ordinary and complete intercourse.” I have also determined that the parties were incapable of consummating their marriage.

The remainder of the analysis, findings, and application of the law to the facts continues as in the original judgment, with all findings and reasoning as set out above.

Conclusion and Orders

[170] The parties’ names shall be initialized.

[171] For the foregoing reasons, I have found that the parties never consummated their marriage, and that they were incapable of doing so.

[172] The applicant’s claim for a declaration of nullity on the basis of non-consummation is allowed.

[173] A declaration of nullity will issue.

[174] The issue of costs remains to be determined. The parties are strongly encouraged to come to an agreement as to costs. If they are unable to do so, the applicant may file written costs submissions of no more than three pages (double spaced, 12-point font), exclusive of his bill of costs and/or offers to settle within 15 days of the release of this judgment. The respondent may file written responding costs submissions of no more than three pages (double spaced, 12-point font), exclusive of her bill of costs and/or offers to settle within 15 days of being served with the applicant’s costs submissions. There shall be no reply costs submissions.

J. R. Presser
Released: July 14, 2025