This case asked the Court to consider the unusual situation of a
party to a potentially valid polygamous marriage (performed in
Pakistan) asking for a divorce from her husband. Initially, the
Court of Queen's Bench declined to hear evidence from either
party on the basis that Ms. Azam had admitted in her pleadings that
Mr. Jan was married at the time of their marriage in Pakistan, and
thus the marriage was void. However, the Court of Appeal found that
a trial was necessary to resolve disputed factual issues and
allowed Ms. Azam's appeal (Azam v Jan, 2012 ABCA 197)
In response to the Court of Appeal's order to hold a trial
on the merits, Madame Justice Erb heard evidence and gave a
potentially precedent-making decision. Applying the "dual
domicile principal", the Court addressed itself to whether
both parties had the capacity to enter into the marriage under the
laws of their respective homes (Pakistan for Ms. Azam; Canada for
Mr. Jan). On this basis, Erb J. found that Mr. Jan did not have
capacity to enter into the marriage because polygamy is illegal in
Canada. Therefore, the marriage was void ab initio and an order of
annulment was granted. The application for divorce was not granted,
on the basis of the invalidity of the marriage.
Although she ultimately came to the same conclusion as the
original trial judge, Erb J. also noted in obiter the difficulty
posed by polygamous marriages which are not recognized under
Canadian law. She noted that as a matter of public policy, parties
should not be left in a legal vacuum where there is no remedy
because the Canadian courts do not recognize their dispute. On that
basis, Justice Erb acknowledged Ms. Azam and Mr. Jan's marriage
for the purpose of providing the remedy of annulment.
With respect, Justice Erb's reasoning raises some difficult
issues. The first issue is that her reasoning is contradictory: she
recognized the marriage in order to declare it a nullity. This
effectively means that the Court has recognized a contract as
existing in order to declare that it does not exist. It would have
been much more economical to recognize the factual occurrence of a
form of marriage and declare that such marriage was not recognized
in Canada. This would have avoided opening the door to recognition
of polygamous marriages under Canadian law.
The second issue is the extent to which Justice Erb's
decision to recognize an invalid marriage for the purpose of
granting a remedy can be extended. One wonders whether any remedy
other than annulment would be available to future parties to a
similar action; could this include a division of marital property
in a polygamous situation? Given that a declaration that a marriage
was void in Canada would have the same effect as granting the
remedy of annulment, it may be inferred that Erb J intended to open
the door to further remedies.
The third issue, which was not addressed by the Court in these
reasons, is why the remedy of annulment even needs to be granted.
Given that the Court has declared the marriage void ab initio in
Canada, it is questionable whether the marriage even needs to be
annulled if it was never recognized in Canada other than for the
express purpose of annulling it. The impact of the order of
annulment in the jurisdiction of the marriage itself (Pakistan) was
not addressed, although the Court speculated in obiter that the
marriage may have actually been invalid under Pakistani law.
In summary, the judgment in this case raises more questions than
it answers. In this author's opinion, the Court would have been
better to confine its decision as narrowly as possible in this case
by not recognizing the marriage at all. The question should have
been confined to whether or not the marriage was polygamous and
therefore void in Canada.
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