The most common method for ending a legal marriage in Canada is by obtaining a divorce. Under s. 8(2) of the Canada Divorce Act, the grounds for divorce are set out as follows:

Breakdown of marriage

(2) Breakdown of a marriage is established only if

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

While divorce after a year of separation is the route most people take, some opt to seek a resolution sooner, by establishing adultery or cruelty. In some cases, however, the parties may wish to bypass divorce altogether by seeking an annulment, which is a declaration by the court that the two spouses were never legally married. This is a remedy only available in certain circumstances, and most often sought for religious reasons or in cases involving fraud by one of the parties to the marriage.

The reasons to grant an annulment are narrow, and Canadian courts are strict in enforcing those grounds. In a recent decision, a husband sought the annulment of his marriage for non-consummation but was denied because the non-consummation was voluntary, and not the result of a physical or psychological condition.

Husband Seeks Annulment

The couple met in 2005 and were friends for a number of years. The relationship became romantic in 2013 and they began cohabiting. The evidence of both parties was that they enjoyed a satisfactory sexual and emotional relationship.

At some point, they mutually agreed to each have sex with other people, while still living together and engaging in sexual intercourse with each other. The couple explained that their relationship was polyamorous. 

In 2014, the wife was injured in a car accident, which limited her ability to participate in certain activities. 

The couple then became engaged in March 2017 and celebrated a civil marriage on January 19, 2019.

The husband and wife separated on April 24, 2019. The wife filed for divorce on July 19, 2019, while the husband filed an application for annulment on September 5, 2019. 

In the husband’s application, he alleged as follows: 

“[The wife] was incapable of consummating the marriage due to the severity of her psychological disability impeding her ability to do so. The last time [the wife] and [the husband] were intimate was July 2018, six months before the marriage.”

The husband argued that the wife had suffered lasting psychological effects, including stress, depression and anxiety, from her 2014 car accident. He claimed that her “psychological disability” became permanent and irreversible and explained her inability to have sexual intercourse with him.

While the wife acknowledged that she had been injured in the accident, that she had experienced pain and depression and that some of her activities had been limited for a period of time, she claimed that neither the accident nor her use of medications had affected her ability to engage in sexual intercourse with the husband.

Grounds for Annulment

A marriage can be annulled for a number of reasons, which usually relate to a legal defect in the marriage ceremony or a disability of one of the spouses. A marriage can also be annulled if one spouse was unable to, or refused to, consummate the marriage, if the marriage was entered into under duress, fear, or fraud, or if the spouses were too closely related to each other by blood or marriage. 

However, the court explained that the mere fact of non-consummation does not provide grounds for annulment of marriage. Instead, case law indicates that a marriage can be annulled for non-consummation only if there is an incapacity to consummate springing from physical or psychological limitations beyond the control of the refusing party. It explained that the inability to consummate can arise from physical inability or a psychological incapacity. Attitudes and beliefs, rational or otherwise, can give rise to an invincible repugnance, creating a barrier to sexual intercourse that one of the parties to a marriage is unable to cross.

The court then explained that it is not sufficient that there is a conscious refusal to engage in sexual relations; willful refusal to engage in sexual relations does not afford grounds for annulment. However, an annulment may be granted where one party is impotent or has an incapacity of some kind that prevents consummation.

Further, aninability to consummate where the refusing party lacks romantic feelings for the spouse but is capable of having sexual relations with someone else does not warrant annulment. However, repugnance may also be restricted to sex with one’s marriage partner, rather than the act in general.

The court concluded:

“Thus, it becomes necessary to determine the reasons for an antipathy towards sexual relations. The party alleging that the marriage is void must provide sufficient evidence to prove that non-consummation was due to some incapacity.”

Court Dismisses Application for Annulment

After reviewing the medical evidence presented by both parties, the court concluded that the husband’s claim that the wife suffered from a psychological condition stemming from the 2014 car accident and his assertion that her psychological profiles revealed mental illness preventing her from having sex with him were unsubstantiated.

The court then reviewed the evidence presented on the evolution of the parties’ relationship. The court concluded:

“The evidence before me falls far short of establishing such an incapacity on the part of [the wife], whether by virtue of a physical ailment, a psychological condition or an insurmountable antipathy toward [the husband]. Even if [the wife] had lost interest in [the husband] as a sex partner, she was not rendered incapable of engaging in sexual intercourse with him. She just didn’t want to.”

In the result, the court held that the husband had failed to prove that the wife suffered from any invincible repugnance to consummating their marriage and there was no evidence to support any physical or mental incapacity. The husband’s application for annulment was therefore dismissed.

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.