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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