Canadian courts must sometimes apply legal concepts that feel rooted in another era. A recent Ontario Family Law decision called S.M. v. R.F., involving marital consummation, is a striking example.
The Law, and the Facts
To understand the case, we have to start with some legal basics:
- Under centuries-old common law principles, a Canadian marriage is voidable unless it has been “consummated” – which involves full penetrative sexual intercourse.
- Partial or momentary penetration does not qualify, nor does non-penetrative sexual contact. Mutual expressions of commitment and demonstrations of emotional intimacy also do not qualify.
- Non-consummation of a marriage is grounds for annulment.
With that in mind, now for the facts of the case: Simply put, the married couple disagreed about whether their marriage had been consummated. The husband said it had not, and asked for an annulment; the wife said it had, and asked for a divorce instead.
After hearing evidence of the couple’s attempts to have sex over nearly two years – which featured frustration, physical discomfort, and anxiety on both sides – the court ultimately granted an annulment. It found there had never been what the law calls “ordinary and complete” sexual intercourse.
Outdated Sexual Standard
What’s particularly interesting about the case, was the court’s candid acknowledgment that the traditional legal definition of “consummation” itself feels increasingly out-of-touch with modern Canadian values. It questioned whether it still makes sense that “ordinary and complete” penetrative heterosexual, male-centered concepts of intercourse was still a condition of a fully valid marriage. The court wrote:
[106] Before proceeding to explain my findings, I want to note that the requirement of consummation by an act of “ordinary and complete” penetrative heterosexual sexual intercourse between a cisgender man and a cisgender woman seems out of step with current legal and societal norms and values. In our world, where same sex marriages are legally recognized and there is growing awareness and legal recognition of queer and trans rights, it seems anachronistic to maintain that a marriage is voidable if there has been no completed penetration of one spouse’s vagina by the other’s penis. The common law definition of consummation may also be vulnerable to a critique that it is too focused on a stereotypically male perspective of what constitutes “ordinary” and “complete” sexual activity.
With that said, the court admitted that this was not the question it was being asked to rule on – nor were contemporary societal nuances pertinent here (since the case involved a heterosexual marriage between a man and woman). Neither of them had challenged the governing test, and even if they had, the court would have no inherent power to modernize or change the legal test on a whim. Instead, the court was required to apply the existing Canadian law. This called for an annulment to be granted in this case.
For those reading this, the decision offers a reminder that legal definitions do not always align neatly with lived experience. The couple in S.M. v. R.F. was otherwise validly married and viewed themselves as such. Yet under the existing law on annulment, their marriage was ultimately treated as voidable because a specific – and arguably archaic – physical threshold was never crossed.
What are your thoughts on this ruling, and on the judge’s rationale?
For the full text of the decision, see:
S.M. v. R. F., 2025 ONSC 4155 <https://canlii.ca/t/kddm3>
