Posts from the ‘Educational Resources’ Category

Did Husband’s Poor Character Justify Marriage Annulment Based on Fraud?

Did Husband’s Poor Character Justify Marriage Annulment Based on Fraud? 

In a case called Sahibalzubaidi v. Bahjat, the court grappled with whether to annul the marriage between a woman and a man based on an unusual ground, namely “fraud”.   The woman claimed that in order to induce her to marry him, the man and committed fraud against her and her father, by misrepresenting that he had good character when he did not.

The man and woman were merely passing acquaintances while attending the University of Malaysia at the same time.  As a devout Muslim, she could not date or have an in-depth conversation with him in that environment.   However, when she returned to Canada to join her family, they continued to exchange emails and over time this led a discussion of marriage.  To her, “the most important thing in a potential husband was and is that he be honest, kind, moral and upright character and share my religious values which involve respecting me as his wife”, as she later told the court.

The man proposed to the woman by e-mail.  She accepted – subject to her father giving his consent, especially since she was his only daughter.  The father interviewed the man and his parents, and they gave him their assurances that the man possessed the character and qualities of a suitable husband for the woman.

The father approved the marriage, which took place in the customary manner involving both a civil ritual and a religious one. During that ceremony, the man promised to keep the woman safe, respect her, and take care of all aspects of her life.   He also directly promised the woman’s father that he would keep her safe and respect her.   The imam, who performed the marriage ceremony, told the man that if he tried to hurt the woman, she would have the right to make the marriage fasid, which means to have it annulled.

The court described the woman’s evidence as to what happened soon after:

[The woman] deposes that upon his arrival in Canada, [the man’s] true character emerged and had she known this she would have never agreed to marry him. [The man] breached his promise to keep her safe and respect her. … [T]he woman states:

He began to assault her, once even dragging her onto the front lawn of her parents’ house where everyone could see, which was a particularly debasing and humiliating act against someone of the [woman’s] cultural and religious background. The [man] threatened her and had her call his parents in Iraq to ascertain that, indeed, he had shot his father and broken his mother’s arm. The [woman] confirmed these facts with members of the [man’s] family, other than his mother and his father. He also implied that should she ever disobey him, a similar fate would await the [woman]. He would repeat the same complaint or instruction to her, not simply ad nauseum, but literally a hundred times a day in a succession. He refuses to recognize that he has any kind of personality disorder and will not under any circumstances obtain professional help in order to deal with it.

In light of these developments, the woman asserted that both the man and his parents deceived her and her father.  She asked the court to concluded that these facts were tantamount to fraud, which could form the basis  for annulling the marriage entirely.

The court noted that fraud does not usually vitiate a marriage, unless it induces an “operative” mistake,  for example one relating to a party’s identity, or a mistake in understanding that the ceremony that is taking place is a legal marriage.

The mistaken identity factor that could justify an annulment might arise if, for example, party A is induced to marry B, believing that she is marrying C.  Here, there was no such deception as to the man’s identity per se; the misrepresentations as to his character or personality traits did not fall within the traditional category of fraud.

The court accordingly rejected the woman’s annulment argument on this ground (although it did agree annul the marriage on one of the other grounds she raised, namely non-consummation, and failure to comply with certain religious requirements).

For the full text of the decision, see:

Sahibalzubaidi v. Bahjat, 2011 ONSC 4075 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at Russellalexander.com

Challenging a Domestic Contract – Are its Terms Still Valid Pending Trial?

Challenging a Domestic Contract – Are its Terms Still Valid Pending Trial?

As readers of my Blog will know, “domestic contracts” (which include separation agreements and marriage contracts) are essentially signed, written legal contracts that embody the negotiated agreement between spouses in the event of their separation or divorce.  Among other things, they typically include provisions relating to how much post-split spousal support is to be paid, and by whom.

A well-drafted domestic contract will withstand a court’s scrutiny, and its terms may even be incorporated into an eventual divorce order made by the court.  But not all domestic contracts pass this test – one or both spouses may decide to challenge the validity of the agreement they negotiated, and may go to court for a temporary ruling on whether its provisions should be enforced pending a fuller trial, when all their issues relating to the separation or divorce can be finally addressed.

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These kinds of contract-challenge scenarios give rise to two interesting legal questions:

Question 1:  Do the support-related provisions of a domestic contract remain effective pending a court’s later determination of whether they are legally valid?

Yes.  In a case called Balsmeier v. Balsmeier, the court stated that there is a legal presumption that the marriage contract executed between a couple is valid.  So if one of them asks the court to set it aside, and requests interim support until the rest of their issues can be determined later at trial, then the court should normally order that support in keeping with what the parties agreed to in the contract.  In other words, the court should be reluctant to order interim relief that contradicts what the parties themselves agreed to in the signed contract.

Question 2:  Can a couple add a provision to domestic contract that effectively ousts a court’s authority to change or set aside other provisions that relate to support?

No. If a domestic contract includes a provision for support, or a waiver of a right to support, then the court can freely set it aside and make its own support determination – even though the contract itself contains an express provision trying to preclude the court’s power to do so under the Family Law Act (FLA). There are three situations in which a court can do this:

• Where the provision for support, or the waiver of the support right, results in unconscionable circumstances,
• The support provision is in favour of a dependent who qualifies for an allowance for support out of public money, or the waiver is by or on behalf of this kind of dependant, or
• There is default in the payment of support under the contract at the time the application is made.

In an upcoming Blog, we will take a look at how this power can be wielded by a court, and applied practically in the face of rather onerous domestic provisions that are being challenged at an interim stage pending trial.

For the full text of the decision, see:

Balsmeier v. Balsmeier, 2014 ONSC 5305(CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com