The Chronicle Herald (Provincial)
Court denies annulment on non-consummation grounds
An Alberta man in a polyamorous relationship has failed to win an annulment, even though his wife kept visiting her boyfriend in Nova Scotia.
Daniel Matthew Boudreau and Ashley Tarrant met in 2005 and were friends for years, according to a recent decision from Calgary’s Court of Queen’s Bench.
“The parties began a romantic relationship in 2013 and it is common ground that, at first, they had a satisfying sexual relationship,” Justice Craig M. Jones said in his written decision.
That did not last.
“Mr. Boudreau seeks annulment of his marriage to Ms. Tarrant on the grounds of non-consummation,” the judge said. “While Ms. Tarrant agrees that the marriage was never consummated, she disputes that the reasons for that meet the test for annulment.”
According to Boudreau, their “lack of intimacy arises from Ms. Tarrant’s mental condition and is not merely a manifestation of caprice or a lack of interest in him as a sexual partner,” Jones said in his Dec. 18 decision.
“Ms. Tarrant argues that the parties’ failure to consummate their marriage arose not from any physical or mental affliction, but from the gradual loss of intimacy in their relationship.”
Their relationship was not exclusive.
“At some point, they mutually agreed to each have sex with other people, while still living together and engaging in sexual intercourse with each other,” the judge said. “They state in their briefs that the relationship became polyamorous which, they assert, deepened their trust in and mutual commitment to each other. There was evidence that Ms. Tarrant had a boyfriend in Nova Scotia with whom she was sexually active and that Mr. Boudreau was aware of this.”
INJURED IN ACCIDENT
But in 2014 Tarrant was injured in a car accident.
“While it is undisputed that the accident limited her participation in some of her former activities, the extent to which it influenced her disposition towards sexual activity with Mr. Boudreau is a matter of contention,” Jones said.
The pair got engaged in March of 2017. “They celebrated a civil marriage in Alberta on Jan. 19, 2019. Subsequently, they and their invitees celebrated a destination wedding in Mexico from Feb. 2-9, 2019.”
They separated less than three months later. Tarrant filed for divorce that summer.
Boudreau filed for an annulment in the fall of 2019. He argued his wife “was incapable of consummating the marriage due to the severity of her psychological disability impeding her ability to do so.”
According to the decision, the last time they “were intimate was July 2018, six months before the marriage.”
But that’s not a slam dunk for an annulment.
“The case law indicates that a marriage can be annulled for non-consummation only if there is an incapacity to consummate springing from physical or psychological limitations beyond the control of the refusing party,” said the judge. “It is not sufficient that there is a conscious refusal to engage in sexual relations.”
Boudreau argued that “Tarrant suffered lasting psychological effects, including stress, depression and anxiety, from her 2014 car accident,” Jones said. “He claims that what he terms her ‘ psychological disability’ became permanent and irreversible and explains her inability to have sexual intercourse with him.”
Tarrant acknowledges she was injured in the accident. “She experienced pain and depression and that some of her activities were limited for a period of time,” said the judge. “She asserts, however, that neither the accident nor her use of medications affected her ability to engage in sexual intercourse with
Mr. Boudreau.”
The judge said Boudreau took “significant liberties” with his “many references to Ms. Tarrant’s ‘ mental illnesses.’”
PSYCHOLOGICAL REPORT
Boudreau testified that he relied on a psychologist’s report that shows Tarrant “had elevated scores for obsessive compulsive, phobic anxiety and paranoid ideation,” said the judge. “Otherwise, her scores seem unremarkable.”
Nothing in the report linked those scores “to sexual incapacity or mental illness,” Jones said. “Moreover, the report does not use the term ‘mental illness’ nor does it state that Ms. Tarrant’s scores are evidence of psychological disability.”
Boudreau’s lawyer didn’t call any expert medical evidence to the stand. “Accordingly, both Mr. Boudreau’s assertion that Ms. Tarrant suffers from a psychological condition sourced in the 2014 car acci
dent and his assertion that her psychological profiles reveal mental illness preventing her from having sex with him are unsubstantiated.”
The court heard the couple’s sex life “started to fade away in the latter part of 2016 and into 2017,” said the judge.
“(Boudreau) states that in 2017, the parties were having sexual intercourse once every two months. At that time, Mr. Boudreau was working out of Calgary for two week stretches, followed by one week off. Both parties’ evidence is that they ceased engaging in sexual intercourse in July 2018.”
While Boudreau has no medical training, he blamed her use of prescription drugs, pot and pain meds. “Mr. Boudreau also cites the fact that she consulted medical practitioners and eventually went on disability leave from her employment as evidence that Mr. Tarrant was suffering from psychological issues,” Jones said.
“I note, however, that Ms. Tarrant currently works as a professional accountant with a major corporation. I am not convinced that her disabilities are so pervasive as Mr. Boudreau asserts.”
Boudreau testified that in August 2018, the couple discussed intimacy issues. “He claims Ms. Tarrant told him she could not engage in sexual intercourse with him because his touch and indeed his mere presence caused her anxiety and she did not feel safe.”
The judge didn’t buy that. “The parties continued to sleep in the same bed after they stopped having sexual intercourse. I find it strange that this should be the case if Mr. Boudreau’s touch and mere presence caused Ms. Tarrant anxiety and left her feeling unsafe.”
For her part, Tarrant testified the intimacy stopped when “the relationship was going through some challenges, that Mr. Boudreau was working more and not around as much and that a lack of opportunity and the fact that the parties were fighting contributed to the absence of sexual intimacy.”
She denied finding Boudreau annoying or repulsive. “She testified that she married Mr. Boudreau even though they had not had sex since July 2018 because she was in love with him, stating, ‘And this wasn’t something that we thought was going to be permanent.’”
The judge accepted her evidence that “the parties were having difficulties and that the lack of opportunity and occasional fights, combined with the stress of planning a wedding, were taking their toll. I believe her statement above was alluding to the parties’ hope that relations between them would normalize once the wedding was behind them. That, however, was not to be.”
On the night of their Mexican wedding, the couple was “drinking heavily and taking party drugs,” Jones said.
DESTINATION WEDDING
“Ms. Tarrant’s evidence, consistent with Mr. Boudreau’s evidence on questioning, was that she initiated sexual activity with Mr. Boudreau the evening of their destination wedding. I accept that this is what transpired,” said the judge.
“Ms. Tarrant’s evidence was that Mr. Boudreau rejected her overtures, indicating that he did not expect the parties to have sex during their destination wedding excursion. While that may seem odd, it resonates somewhat in light of Ms. Tarrant’s further evidence. She testified that Mr. Boudreau announced to her the morning after their arrival in Mexico that he and her bridesmaid had stayed up the night before sharing their mutual desire to have sex with each other. Mr. Boudreau, she claims, repeated his desire to have sex with her bridesmaid several times during the days following in Mexico. Ms. Tarrant testified that she was hurt by Mr. Boudreau’s interest in her bridesmaid, since the week in Mexico was to celebrate their relationship."
While Tarrant denied he ever asked, Boudreau testified he tried to initiate sex three times with his wife after they returned home from Mexico. “Once just before Ms. Boudreau’s mother arrived for a visit in March 2019, another time in March 2019 before Ms. Tarrant left to visit her boyfriend in Nova Scotia and once in April 2019 before the parties separated. He claims that each time he was met with the comment that she could not and was not ready”
The judge wasn’t convinced “Tarrant was unable to have sex with him because she found him repulsive or because she felt unsafe with him. In my view, Mr. Boudreau mistakenly characterizes Ms. Tarrant’s unwillingness to have sex with him as an inability to do so. While Ms. Tarrant certainly seems to have lost interest in having sex with Mr. Boudreau, that does not mean she was unable to do so. The case law is clear that willful refusal is not grounds for annulment.”
DETERIORATING RELATIONSHIP
The two weren’t having sex “not because of some dysfunction on Ms. Tarrant’s part, but because Mr. Boudreau was often away, the parties were experiencing conflict and the relationship was deteriorating,” said the judge.
“Frankly, by the time the parties got married, I do not think either one of them particularly wanted to engage in sexual intercourse with the other."
Jones accepted Tarrant’s evidence that Boudreau “wanted to have sex with her bridesmaid,” during the Mexican wedding, “which might explain why he did not expect to have sex with her. For her part, Ms. Tarrant had not had sex with Mr. Boudreau for almost six months but had recently returned from a visit to her boyfriend in Nova Scotia."
The judge wasn’t sure why Boudreau didn’t seek a divorce rather than an annulment when Tarrant told him their relationship was over. “But it is clear that a mere lack of interest in sexual relations with one’s spouse does not justify annulment."
The evidence "falls far short of establishing such an incapacity on the part of Ms. Tarrant, whether by virtue of a physical ailment, a psychological condition or an insurmountable antipathy toward Mr. Boudreau,” Jones said.
“Even if Ms. Tarrant had lost interest in Mr. Boudreau as a sex partner, she was not rendered incapable of engaging in sexual intercourse with him. She just didn’t want to.”