PA v VP, 2021 ABQB 643

Court of Queen’s Bench of Alberta Citation: PA v VP, 2021 ABQB 643 Date: 20210813 Docket: 4801 186208 Registry: Calgary Between: PA Plaintiff/Respondent - and - VP Defendant/Applicant _______________________________________________________ Memorandum of Judgment of the Honourable Madam Justice B.E. Romaine _______________________________________________________ I. Introduction [ 1 ] The Applicant/Defendant VP applies for an annulment of her marriage to the Respondent/Plaintiff PA on the ground of non-

consummation. Mr. A counter-claims for divorce, submitting that Ms. P has failed to establish on a balance of probabilities that the breakdown of the marriage was a result of an incapacity to consummate. [ 2 ] The issue is whether Ms. P has adduced evidence sufficient to meet the test for an annulment. If not, should the parties be granted a divorce? II. Relevant Facts [ 3 ] The parties were married in India on January 10, 2018. They separated on August 10, 2019. There are no children of the marriage.

The marriage was arranged in accordance with the culture of the parties, and they had little contact prior to the engagement and between the time of the engagement and the marriage. [ 4 ] During the twelve days of their honeymoon period, the parties did not consummate the marriage. Ms. P says that Mr. A did not want to consummate the marriage until she moved to Canada, and Ms. P agreed, as they had not yet formed an emotional attachment. [ 5 ] Mr. A says the decision not to consummate the marriage during the honeymoon was mutual. [ 6 ] The marriage was not a happy one. Ms.

P says that before she immigrated to Canada on November 1, 2018, Mr. A seemed emotionally detached and not interested in communicating with her. She says that, after she moved to Canada, while they appeared as a couple to the outside world their relationship at home resembled that of roommates. [ 7 ] Ms. P says that she raised the issue of sexual relations several times, but that Mr. A always made excuses, including that he was stressed and depressed about his unemployment. On the one occasion that they attempted sexual relations, the act was not consummated. Ms. P says that she suggested medical help, but Mr.

A refused. [ 8 ] Mr. A says that Ms. P was hostile and argumentative during the early days of their marriage, that their relationship was always tense, and that they argued constantly. He says that, on the occasion when they agreed to have sexual relations, he believes, but is not sure, that penetration occurred, but that almost immediately, Ms. P asked him to stop. He says that he had been drinking heavily before the event. [ 9 ] I accept Ms. P's testimony that the marriage was not consummated on that occasion, or at any other time. Mr. A admits he is not sure about this. [ 10 ] When Mr.

A's parents came to visit in July, 2018, Ms. P said the situation became worse, and there were heated arguments. She says that Mr. A was violent with her on one occasion. She quarrelled with Mr. A's parents, particularly with his father, whom she says was mentally abusive to her about her relationship with Mr. A. She threatened to call police during one such argument, but afterwards apologized. [ 11 ] However, Mr. A's parents refused to talk to him after the incident, and returned to the United States. Ms. P says that this enraged Mr. A. She says that in August, 2019, Mr.

A's parents gave him an ultimatum, either cut all ties with his family or leave her. Mr. A left. [ 12 ] Ms. P says that she sent Mr. A several messages asking for forgiveness, but Mr. A was not interested in reconciliation. [ 13 ] Ms. P says that after they separated, she began to hear rumours that Mr. A was gay and had entered a romantic relationship with the friend that he went to stay with when they separated. This person is a long-time friend of Mr. A. Ms. P says that she "understands" that Mr. A and his friend either live together or frequently stay at one another's home.

The source of this information is the friend's ex-wife, and includes an

article in a community newsletter that reports that the ex-wife had accused the friend of physical abuse and cheating. Ms. P concedes that she has no other knowledge to support her allegation that Mr. A is gay. [ 14 ] Mr. A denies that he is a homosexual. He says that he has had past sexual relationships with three other female partners. He says that the lack of consummation was due to the constant arguments and lack of affection between him and Ms. P. He describes this as a culmination of many small but constant disagreements, leading to hostility and tension. [ 15 ] Mr.

A denies being in a sexual relationship with his friend, whom he says he stayed with for about a month after he separated from Ms. P. [ 16 ] The friend's ex-wife testified about her belief that her ex-husband and Mr. A are gay. She acknowledged that they were best friends. She could point to noting but her belief to sustain her opinion, and she conceded that she had become pregnant during her marriage. [ 17 ] Ms. P sought a decree of divorce in July, 2020, but did not proceed with her petition, instead bringing this application. [ 18 ] Ms.

P testified that it was important for her to obtain an annulment, as it was "frowned upon" in her culture to be divorced, and it would hinder her ability to find a suitor in the future. She also comments in affidavit evidence that being homosexual is frowned upon in the Indian community in Canada, and dangerous to admit in India for fear of severe repercussions. III. Analysis [ 19 ] As noted in Boudreau v Torrant , 2020 ABQB 798 at paragraphs 9 through 13, the mere fact of non-consummation does not provide grounds for annulment of marriage.

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 is not sufficient that there isa conscious refusal to engage in sexual relations. [20] The Supreme Court of Canada in Heil v Heil, (SCC), [1942] S.C.R. 160 held at paras 4 and 5 that the mererefusal of marital intercourse due to caprice, or as it has been described in other cases, obstinacy, is not a sufficient ground to warrant adecree of nullity.

What is required is sufficient evidence of non-consummation due to an inability or incapacity to engage in sexualintercourse, an "invincible repugnance to the physical life of marriage". [21] The evidence in this case falls short of establishing such an incapacity. Ms. P relies on mere rumour and the unfoundedopinion of an aggrieved third party to allege that Mr. A is a homosexual. While it is clear that the marriage was not consummated, it isalso clear that the parties were unhappy with each other during the course of the marriage, giving rise to stress and disinterest. While Iam sympathetic to Ms.

P's wish to avoid what she feels is a stigma of divorce in her culture, she seeks an annulment at the expense ofMr. A's social standing in the same community. Evidence to support her allegations does not satisfy the burden placed on a complainantto establish that non-consummation was due to incapacity, physical or mental. [22] However, it is clear that this marriage is irredeemably broken, and I grant Mr. A's counterclaim for divorce on the basis of aone-year separation.

Issues of spousal support and division of matrimonial property were not raised before this Court, and I made noorders with respect to those matters. [23] If the parties are unable to agree on costs, they may make written submissions on that issue. Dated at the City of Calgary, Alberta this 13th day of August, 2021. B.E. Romaine J.C.Q.B.A. Appearances: Jagat Kaur for the Plaintiff/Respondent Charles Osuji and Amanda Ovaici for the Defendant/Applicant