Court Examines Duress As Grounds For Annulment

Written on behalf of Arbesman Hamilton LLP

Everybody makes decisions in life that they wish they could take back, including marriages. Most of the time when a marriage ends, it ends as a result of a divorce. However, a more rare way to end a marriage is through an annulment. Getting a marriage annulled essentially means that a judge has declared that a marriage was not valid from the start. While annulments are not too common, they are available under certain conditions, such as if one of the spouses:

  1. Did not have the legal capacity to marry
  2. Was closely related to the other spouse
  3. Was under 18-years-old and did not have parental consent to marry
  4. Was already married
  5. Was unaware they were participating in a legally binding marriage
  6. Was physically unable to consummate the marriage

Not having the legal capacity to marry could come as the result of a number of things, including duress, defined by the Ontario Court of Appeal as a “coercion of the will.” A recent case from the Supreme Court of British Columbia recently looked at a situation where a spouse claimed duress because she was scared she would lose her job if she did not marry her husband.

The marriage

The wife started working as a hairdresser for the employer on August 1, 2018. The employer’s owner was identified in the decision as B.S.S. Shortly after she started working for the employer, B.S.S. suggested she marry one of his relatives who was living in India. B.S.S. then sponsored the husband’s immigration to Canada and told the wife her employment with the company would be secure only if she agreed to marry the husband.

The wife told the court she asked B.S.S. for a day to consider his proposal, as she was not ready or willing to get married. However, the next day, she agreed to marry B.S.S.’s relative.

The couple were married on August 20, 2018 during a civil ceremony. The wife went home alone after the marriage and had not seen the husband since the wedding. As a result, the marriage was not consummated.

The court noted that the couple were members of the Sigh religion and were Punjabi by ethnicity. According to the Sikh religion, it is essential for marriages to have a religious ceremony in front of the religion’s holy book, Shri Guru Grantj Sahib prior to the couple’s cohabitation or consummation of the marriage. This ceremony did not take place. The wife was fired from her job shortly after the civil ceremony. She believes this happened because she did not partake in a religious ceremony.

The test for duress

The Ontario Court of Appeal described the test for duress in a 1988 decision which was quoted by the court. It said,

The term “economic duress” as used in recent cases, particularly in England, is no more than a recognition that in our modern life the individual is subject to societal pressures which can be every bit as effective, if improperly used, as those flowing from threats of physical abuse.  It is an expansion in kind but not class of practices that the law already recognizes as unacceptable such as those resulting from undue influence or from persons in authority.  But not all pressure, economic or otherwise, is recognized as constituting duress.  It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to “a coercion of the will”, to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no “realistic alternative” but to submit to it, to adopt the suggestion of Professor Waddams (S.M. Waddams, The Law of Contract, 2nd ed. (1984), at p. 376 et seq.).  Duress has the effect of vitiating consent and an agreement obtained through duress is voidable at the instance of the party subjected to the duress unless by another agreement or through conduct, either express or implied, he affirms the impugned contract at a time when he is no longer the victim of the duress.

The court’s analysis

The court found the evidence before it to be “overwhelming” in its support that the marriage was a sham entered into for immigration purposes. The court was satisfied the wife did not enter into the agreement to marry on her own free will, and only married the husband because she was scared of losing her job. As a result, the application for the marriage to be annulled was granted.

At Arbesman Hamilton LLP we understand that the end of a marriage can be difficult and emotional no matter the circumstances. That’s why our experienced and compassionate lawyers make the process easier by providing outstanding legal guidance to ensure our clients right are protected so they can move forward in their lives. Please contact us online or by phone at 416-481-5604 to book your consultation today.