Recent case: Removing bars to an Islamic divorce
Kakhki v. Amin, 2021 ONSC 1897: While the Applicant wife raised a number of issues in her motion, this summary focuses on her request for the Court to issue an order removing all barriers to an Islamic religious divorce.
The couple married through an arranged marriage in 2015 in Iran, after which time the husband sponsored the wife to accompany him to Canada. In 2018, they separated. The husband argued the wife was fraudulent and only used the marriage to immigrate to Canada. He refused to cooperate with the wife so she could obtain an Islamic divorce, instead seeking an annulment, claiming the wife had not properly consummated the marriage.
In reaching her decision, Justice Horkins considered the positions of both parties and noted several important factors:
- The wife flagged significant safety concerns, arguing that, without an Islamic divorce, she “remains under the control of the Respondent.” Her husband would continue to control her passport and her ability to travel if she were to return to Iran, and he could bring “unjust charges” against her.
- The husband refused to grant an Islamic divorce because he said it would prevent him from dividing the property. However, Justice Horkins noted this was a false claim. Divorce would not prevent him from dividing the property and, even if it did, the husband did not ask for it to be divided but claimed it all for himself. Besides, if the couple divorced, it would be the wife, not the husband, who would lose claim to the matrimonial home.
- Annulment of marriage based on non-consummation is only available when there is physical or psychological impotency. The husband himself testified his wife was “most or most of the time unable to consummate.” Justice Horkins pointed out that this refuted the husband’s claim and provided evidence that the marriage was, in fact, consummated (emphasis in the original).
- Refusal to engage in sexual intercourse is not enough to annul a marriage.
- Even if the wife used the marriage only to immigrate to Canada as the husband argued, that is not enough to annul a marriage.
Taking the above factors into account, Justice Horkins agreed with the wife that the husband’s refusal to cooperate with the divorce had been “unreasonable and a waste of time.” She ordered that the civil divorce proceed and that the husband cooperate with the wife in obtaining an Islamic divorce.
Written by Ottawa University Faculty of Law Fellowship student, Allana Haist, who worked with Luke’s Place during Summer 2021.