“The Applicant’s request raises two arguments for an annulment – one being that the marriage was not consummated, and the second being that the Respondent only married her for immigration purposes. Both of these arguments, if successful, would result in the marriage being voidable. In other words, the marriage is treated in law as a valid and subsisting marriage unless and until it is annulled by a Court.
Based on the evidence before me, neither of the above arguments allow an annulment to be granted in this matter.
Historically, annulments based on non-consummation have required evidence of permanent physical impotency. This has been expanded to include evidence of psychological factors that effectively create a permanent psychological impotency. Non-consummation due to “mere refusal” or “wilful refusal” to engage in sexual intercourse is not sufficient.
Based on the evidence before me, I do not find that a permanent impotency exists that would allow an annulment based on non-consummation. Rather, the evidence supports a finding of wilful refusal on the part of the Respondent to consummate the marriage. This is not sufficient.
With respect to the immigration issue, the Ontario Court of Appeal has held in its decision in Iantsis (Papatheodorou) v. Papatheodorou5that immigration fraud cannot be relied upon to grant an annulment.”