Azam v. Jan, 2013 ABQB 301

• Judge: Erb, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 16, 2013
• Citations: 2013 ABQB 301;(2013), 562 A.R. 374 (QB)

Azam v. Jan (2013), 562 A.R. 374 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MY.126

Saiqa Azam (plaintiff) v. Saadullah Jan (defendant)

(4801 146354; 2013 ABQB 301)

Indexed As: Azam v. Jan

Alberta Court of Queen's Bench

Judicial District of Calgary

Erb, J.

May 16, 2013.

Summary:

Jan at all material times was married to Naz. Jan and Naz resided in Calgary. Jan also married Azam in a polygamous marriage in Pakistan. Polygamy was legal in Pakistan. Jan brought Azam to Canada. Subsequently, Azam sought a divorce. Jan sought a declaration that the marriage to Azam was void ab initio in Canada and an annulment.

The Alberta Court of Queen's Bench dismissed Azam's divorce application, but declared the marriage void ab initio and granted an annulment.

Conflict of Laws - Topic 2101

Family law - Divorce and annulment - General - The Alberta Court of Queen's Bench noted that in order to dissolve a foreign marriage it had to be recognized as valid in accordance with Canadian conflict of law rules (i.e., the marriage had to be formally and essentially valid) - To assess the capacity of parties to marry as required for "essential validity" the preferred approach in Canada was the "dual domicile doctrine"- That doctrine required each party to have the capacity to marry in the country in which they were domiciled at the point of marriage - See paragraphs 45 to 53.

Conflict of Laws - Topic 2102

Family law - Divorce and annulment - Jurisdiction of court - The Alberta Court of Queen's Bench noted that an 1866 decision of the English courts (Hyde v. Hyde), had been applied in Canada as authority for declining jurisdiction over all foreign polygamous marriages for the purpose of annulment and divorce - The court concluded that "... in the interests of public policy, this court should take jurisdiction over valid and invalid foreign polygamous marriages. The Hyde decision of 1866, is outdated and no longer reflects Canadian realities. In the 147 years since Hyde, Canada has become a very different place. At the time Hyde was decided, Canada had not yet even reached nationhood. Today's Canada is a proud cultural mosaic and the law should provide remedies where possible to meet the needs of all Canadians including both citizen and permanent resident. To fail to do so would leave parties without recourse and it would invariably exclude immigrant families from rights accorded other Canadians when marriages, however forged, break down" - See paragraphs 25 to 44.

Conflict of Laws - Topic 2102

Family law - Divorce - Jurisdiction of court - Jan at all material times was married to Naz - Jan and Naz resided in Calgary - Jan also married Azam in a polygamous marriage in Pakistan - Polygamy was legal in Pakistan - Jan brought Azam to Canada - Subsequently, Azam sought a divorce - The Alberta Court of Queen's Bench discussed whether the court had jurisdiction over foreign polygamous marriages and concluded that it would take jurisdiction on public policy grounds - See paragraphs 25 to 44 and 59.

Conflict of Laws - Topic 2106

Family law - Divorce and annulment - Polygamous marriages - Jan resided in Calgary and was married to Naz - Jan also married Azam in a polygamous marriage in Pakistan - Jan brought Azam to Canada - Subsequently, Azam sought a divorce - The Alberta Court of Queen's Bench noted that in order to dissolve the foreign marriage it had to be recognized as formally and essentially valid in accordance with Canadian conflict of law rules - Here essential validity was the determining factor - Applying the dual domicile doctrine, while Azam, domiciled in Pakistan had the capacity to marry, Jan, domiciled in Canada, did not as he was already married - Thus, the Azam/Jan marriage was not recognized as valid under Canadian conflict of law rules because polygamy was not legal in Canada and could not be recognized because Azam could not prove the essential validity of it - Thus her divorce application failed - However, the marriage was invalid under Canadian law, polygamy being illegal in Canada; therefore, the court declared that the Azam/Jan marriage was void ab initio and granted an annulment - See paragraphs 54 to 60.

Family Law - Topic 216

Marriage - Invalid marriages - Grounds of invalidity - [See Conflict of Laws - Topic 2106 ].

Family Law - Topic 3507

Divorce - Jurisdiction - General - Foreign marriages (incl. polygamous marriages) - [See both Conflict of Laws - Topic 2102 ].

Family Law - Topic 6012

Annulment of marriage - Jurisdiction - Alberta courts - [See both Conflict of Laws - Topic 2102 ].

Family Law - Topic 6039

Annulment of marriage - Grounds - Marriage valid in place of celebration but not valid in Canada (e.g., polygamous marriage) - [See Conflict of Laws - Topic 2106 ].

Cases Noticed:

Hyde v. Hyde, [1861-73] All E.R. Rep. 175; (1866), L.R. 1 P. & D. 130, not folld. [para. 26].

Lim v. Lim, [1948] 2 D.L.R. 353; [1948] 1 W.W.R. 298 (B.C.S.C.), refd to. [para. 26].

Yew v. British Columbia (Attorney General), [1924] 1 D.L.R. 1166; 33 B.C.R. 109 (C.A.), refd to. [para. 26].

Hassan v. Hassan (1976), 12 O.R.(2d) 432; 28 R.F.L. 121 (H.C.J.) refd to. [para. 27].

Sara v. Sara (1962), 31 D.L.R.(2d) 566; 38 W.W.R.(N.S.) 143 (B.C.S.C.), varied (1962), 36 D.L.R.(2d) 499; 40 W.W.R.(N.S.) 257 (B.C.C.A.), refd to. [para. 27].

Peters v. Murray, [2006] O.A.C. Uned. 558; 153 A.C.W.S.(3d) 913 (C.A.), refd to. [para. 30].

Feiner v. Demkowicz (1973), 2 O.R.(2d) 121; 42 D.L.R.(3d) 165 (H.C.J.), refd to. [para. 31].

Grewal v. Kaur, [2011] O.T.C. Uned. 1812; 94 R.F.L.(6th) 322; 2011 ONSC 1812, refd to. [para. 32].

Bolentiru v. Radulescu, [2004] O.T.C. 698; 10 R.F.L.(6th) 258 (Sup. Ct.), refd to. [para. 33].

Hincks v. Gallardo, [2013] O.T.C. Uned. 129; 113 O.R.(3d) 654; 2013 ONSC 129, refd to. [para. 34].

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1; 2004 SCC 79, refd to. [para. 39].

Radwan v. Radwan (No. 2), [1973] Fam. 35; [1972] 3 All E.R. 1026, refd to. [para. 40].

Narwal v. Minister of Employment and Immigration, [1990] 2 F.C. 385; 111 N.R. 316; 26 R.F.L.(3d) 95 (F.C.A.), refd to. [para. 52].

Authors and Works Noticed:

Bailey, Martha, et al., Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada, in Polygamy in Canada: Legal and Social Implications for Women and Children: A Collection of Policy Research Reports (2005), pp. 11-12 [para. 36].

Castel, Jean-Gabriel, and Walker, Janet, Canadian Conflicts of Laws (6th Ed. 2005- 2011), pp. 4-4 [para. 51]; 7-1 [para. 47].

Kaufman, Amy J., Divorce Act: Polygamous Marriages in Canada (2005), 21 Can. J. Fam. L. 315, p. 333 [para. 36].

Counsel:

Ruellen Forsyth-Nicholson, for the plaintiff;

Khatera Haidery, for the defendant.

This matter was heard on April 2 and 3, 2013, before Erb, J., of the Alberta Court of Queen's Bench, Calgary Registry, who delivered the following decision on May 16, 2013.