Fyith v Sleiman, 2016 ABQB 450

Court of Queen’s Bench of Alberta Citation: Fyith v Sleiman, 2016 ABQB 450 Date: 20160817 Docket: FL03 49300 Registry: Edmonton Between: Ameen Fyith Plaintiff/Applicant - and – Gazali Sleiman Defendant/Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice J.B. Veit _______________________________________________________ [1] This is one of the situations where the parties, both of whom are both resident and domiciled in Alberta and both of whomare Muslim, were married in Alberta on June 13, 2015 according to Alberta law.

However, the Muslim marriage banquet did notsubsequently take place. Each has provided evidence that the marriage was not consummated because of what each has described as the“invincible repugnance” to consummation in circumstances where, according to their faith and culture, the marriage has not beencompleted; their consciences did not allow them to cohabit or to consummate the marriage.

The parties are entitled to a decree of nullity.There are no collateral issues. [2] As to the grounds for granting the decree of nullity, those should be described as non-consummation arising out of aconscience based invincible repugnance to consummation in the circumstances. [3] As to the level of the decree, i.e. whether it should be a decree nisi or a decree absolute, I adopt the reasoning of theManitoba Court of Appeal in W. v W. (MB CA), [1935] 1 W.W.R. 293 (C.A.): 1 BY THE COURT--This is a suit, which is undefended, brought by the wife to have her marriage with the respondent declared null

and void on the ground of his impotency. The action was dismissed by Donovan, J. ( (MB KB), [1934] 3 W.W.R. 230).We have come to the conclusion that the appeal should be allowed, and that a decree absolute be granted. This is the form of decreeprovided for in form No. 15 of the King's Bench Divorce Rules, and is in accordance with the English practice as of July 15, 1870.King's Bench Divorce Rule 67 provides that every decree for divorce shall in the first instance be a decree nisi. The Rule is taken fromsec. 7 of The Divorce and Matrimonial Causes Act, 1860, ch. 144.

The Act was amended by 36 & 37 Vict., 1873, ch. 31, sec. 1 of whichprovides that the provisions of sec. 7 shall extend to decrees and suits for nullity of marriage. This amendment is not in force in thisprovince, and was not incorporated in the King's Bench Rules, no doubt because the learned Judges who drafted the Rules consideredthat they could not constitutionally do so, or that the power is in doubt. See Bilsland v. Bilsland (MB CA), [1922] 1W.W.R. 718, 31 Man. R. 422; Yates v. Yates (MB CA), [1924] 2 W.W.R. 64, 34 Man. R. 170, at 188.

A decree in anaction for dissolution of marriage on the ground of impotency declares the marriage to be null and void. It is thus not a decree withinRule 67. See the recital in the Act of 1873. Rule 73, which provides that an application to make absolute a decree nisi for dissolution ofmarriage shall be made to the Court by motion, must be read as subject to Rule 67. The point involved is succinctly dealt with in thejudgment of Prendergast, C.J.M. in this Court in B. v. B. decided on May 14, 1934 (ante p. 290). 2 Decree absolute.

The petitioner will have her costs. [4] The wording of the decree should be in the form outlined by the English Court of Appeal in DeReneville v DeReneville 1948P 100, at p. 120, and adopted by the Ontario Court of Appeal in Fisher v Fisher [1960] O.J.

No. 537 (C.A.) at para. 17: the marriage is hereby declared “to have been and to be absolutely null and void to all intents and purposes in the law whatsoever and thecourt further declares that the petitioner has been and is free from all bond of marriage with the respondent. [5] I observe that individuals who are in a position similar to that of these parties are entitled to bring a joint petition orapplication for a decree of nullity.

It might also be noted that, in order to obtain an annulment of a marriage on grounds similar to thoseset out herein, a petitioner/plaintiff is not required to establish that the respondent has repudiated the marriage. Application made on the 2nd day of August, 2016. Dated at the City of Edmonton, Alberta this 16th day of August, 2016. J.B. Veit J.C.Q.B.A. Appearances: Jordan Bienert, Tarrabain Raponi & Company for the Applicant, Mr. Fyith Owen J. Kirkaldy, McGlashan & MacKinnon for the Respondent, Ms. Sleiman