Paré v. Bonin, [1977] 2 SCR 342

Supreme Court of Canada

Paré v. Bonin, [1977] 2 S.C.R. 342

Date: 1976-04-01

Roger Paré Appellant;

and

Dame Carole Bonin Respondent.

1975: May 9; 1976: April 1.

Present: Laskin C.J. and Pigeon, Dickson, Beetz and de Grandpré JJ.

Matrimonial law—Annulment of marriage—Lack of consent—Putative marriage—Nullity of the marriage contract—Maintenance of the civil advantages—Civil Code, arts. 116, 139, 141, 142, 163, 164, 2202.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Appellant and respondent were married on July 30, 1966. Previously, on June 18, by contract of marriage, the parties had adopted the system of separation of property, and the future husband had conferred certain advantages on the future wife. On November 24, 1970 the Superior Court allowed the action to have appellant’s marriage declared null, it having been established that at the time of the marriage respondent was suffering from paranoid schizophrenia and could not give a valid consent. However, the Court refused to annul the marriage contract and declare that respondent had forfeited the advantages conferred on her by the contract; nor did it rule on the conclusion asking that respondent be declared to have forfeited all the civil advantages of the marriage. The Court of Appeal varied the judgment of the Superior Court by declaring the marriage contract null, but it expressly refused to declare that respondent had forfeited the civil advantages of the marriage. Appellant appeals to this Court against this last part of the decision, and is seeking a declaration that respondent has forfeited the civil effects of the marriage.

Held: The appeal should be dismissed.

Appellant is relying on three submissions to support his claim: (1) the marriage is not only an absolute nullity; under art. 116 C.C. it is non-existent, as there was no consent, and it consequently cannot produce any civil effects; (2) the marriage was not contracted, as required by art. 163 C.C; (3) respondent was not in good faith at the time of solemnization.

Whether we accept or reject the distinction between a non-existent and a null marriage, the issue in the case at bar is whether the law wished to attach effects to the marriage, which was void for absence of consent. The legislator has not established a special scheme for such

[Page 343]

cases of nullity and has provided for the case of a marriage by an insane person in arts. 139, 141 and 142 C.C, in the chapter on oppositions to marriage. Since this semblance of marriage must be avoided by a declaration of nullity, the general provisions of arts. 163 and 164 C.C apply to everything concerning civil effects. These provisions do not distinguish among the causes of nullity but they refer to nullities which must be declared by judgment. In the case at bar, a marriage solemnized in accordance with the law surely could not be voided by the operation of the law: the intervention of a court was necessary, as provided in art. 163 C.C.

As a second submission, appellant maintains that the marriage could not have been “contracted in good faith” as provided in art. 163, since owing to the want of consent, there was never a contract. The expression “contracted” must not be given its strictest sense, since if the parties have validly contracted a marriage, the marriage cannot be declared null. The aim of the clause is to require not a contract but rather a semblance of marriage, and also to require that the parties be in good faith at the time of the marriage. The use of the word “contracted” in the article has a legal significance, but not the one which appellant is suggesting.

As for the third submission, it is based on the fact that owing to her condition, respondent was incapable of being in good faith, since the concepts of good and bad faith presuppose discernment. However, although one must be capable of discernment to be in bad faith, the same does not apply to acting in good faith where the latter is defined as ignorance of the reason for the invalidity of the act. The legislator’s objective in arts. 163 and 164 C.C. is that there should be no bad faith. Although legal opinion and the case law are divided on the advisability of applying to questions of marriage the presumption in art. 2202 C.C, mere evidence of inability to give a valid consent does not suffice to prevent the application of the presumption of good faith when a putative marriage is involved. To hold otherwise would have the effect of refusing the civil effects of marriage in all cases where one of the parties is ignorant of the other’s insanity at the time the marriage is solemnized. Rules of equity must not be interpreted so as to deprive the weaker party of the protection they extend to all those who did not wish to contravene the law. Appellant’s third submission, like the other two, is without foundation.

Ahmed-ben- Youssef v. Aïcha-bent-Mahomed-ben-Mustapha, D.P. 1880.2.161; Decaudin v. Bayle, Gaz. Pal. 1937.2.598; Ettouhami ben Ali el Hamrouni v. Dame Assia bent Sadok ben Amor Boulila, D. 1957.1.557; Berthiaume v. Dastous, [1930] A.C. 79;

[Page 344]

Stephens v. Falchi [1938] S.C.R. 354; Richard v. Levasseur, [1957] C.S. 323; Darche v. Byron, [1946] C.S. 123; M. v. P., [1966] C.S. 475; Bergeron v. Proulx, [1967] C.S. 579; L. v. L., [1968] C.S. 480, referred to.

APPEAL from a decision of the Court of Appeal of Quebec[1] varying a judgment of the Superior Court. Appeal dismissed.

Claude Dugas, Q.C., for the appellant.

C. Trudel and C. Landreville, for the respondent.

The judgment of the Court was delivered by

BEETZ J.—The issue is whether a marriage which was declared null because one of the parties was insane at the time of solemnization produces the civil effects of a putative marriage in favour of this party.

The marriage of appellant and respondent was solemnized on July 30, 1966 in the church of the Parish of Ste-Thérèse de l’Enfant Jésus in Joliette. Previously, on June 18, by contract of marriage, the parties had adopted the system of separation of property and the future husband had conferred certain advantages on the future wife.

In October 1969 appellant brought an action against respondent seeking to have the marriage and the contract of marriage declared null; he also sought a declaration that respondent had forfeited all the civil advantages of the marriage.

The action was contested by respondent, who simply asked that it be dismissed.

On November 24, 1970 the Superior Court allowed the action. It held that at the time of marriage, respondent was suffering from paranoid schizophrenia and could not give a valid consent; the marriage was therefore null under art. 116 C.C.; however, whereas respondent, being of unsound mind, was not in bad faith—, neither one of the parties being indeed in bad faith—the Court expressly refused to declare that respondent had forfeited the advantages conferred on her by the marriage contract of June 18, 1966. The Court did not rule on the conclusion asking that respondent

[Page 345]

be declared to have forfeited all the civil advantages of the marriage.

Appellant brought an appeal asking the Quebec Court of Appeal to vary the judgment of the Superior Court by declaring the marriage contract of June 18, 1966, null, and by declaring that respondent had forfeited the civil advantages of the marriage. Respondent simply contested the appeal.

The Court of Appeal allowed the appeal in part declaring the marriage contract null by reason of an inherent deficiency namely lack of consent on the part of respondent. However, it expressly refused to declare that respondent had forfeited the civil advantages of the marriage. The only reason why the Court of Appeal did not grant the civil effects of the marriage to respondent lies in the fact that respondent had not made any claim to that effect.

It is against this decision that appellant appeals; he is seeking a declaration that respondent has forfeited the civil effects of the marriage. Respondent is asking only that the appeal be dismissed.

The relevant provisions of the Civil Code are as follows:

Art. 116. There is no marriage when there is no consent.

Art. 163. A marriage although declared null, produces civil effects, as well with regard to the husband and wife as with regard to the children if contracted in good faith.

Art. 164. If good faith exists on the part of one of the parties only, the marriage produces civil effects in favor of such party alone and in favor of the children issue of the marriage.

Art. 2202. Good faith is always presumed.

He who alleges bad faith must prove it.

According to appellant’s first submission, his marriage is not only an absolute nullity: under art. 116 C.C., it is non-existent as there was no consent, and it consequently cannot produce any civil effects. The second submission is that the marriage was not contracted, as required by art. 163 C.C.

[Page 346]

The third submission is that respondent was not in good faith at the time of solemnization.

In this Court, and in response to the view of the Court of Appeal, which likened a marriage void for lack of consent to a marriage void by reason of a vice of form, appellant sought to combine his first two submissions in order to give them a cumulative effect if possible. His contention is that a marriage declared null under art. 116 C.C.—an article which has been said to apply only to the marriage of an insane person (J. Loranger, Commentaire sur le Code civil, Vol. 2, No. 70, at pp. 72 and 73)—is a sui generis case, distinct from other cases of void marriages, and which does not come under arts. 163 and 164 C.C.

Without overlooking this contention, I shall nevertheless deal with the three submissions separately, since distinguishing them facilitates analysis and since the Court of Appeal attached importance to the first one even though appellant no longer insists on it as if it were an independent submission.

The first submission

French legal opinion has been divided on the question of the distinction that should be made between a marriage which is a nullity and a nonexistent marriage, not to mention a relatively null or voidable marriage. Some hold that the distinction is fundamental (Aubry and Rau, Droit civil français, 4th ed., T.V. Nos. 450 ff.; K.S. Zachariae, Le droit civil français, Vol. 1, 1854, at pp. 199 ff.; F. Laurent, Principes de droit civil français, Vol. 2, 3rd ed., 1878, at p. 650, No. 515; Baudry-Lacantinerie, Traité théorique et pratique de droit civil, 3rd ed., 1908, Vol. 3, at p. 502).

The category of non-existent marriages has been taken to include, inter alia, marriages solemnized otherwise than by a competent public officer, marriages contracted by a civilly dead person, marriages between two persons of the same sex and marriages to which at least one of the two parties did not consent at all—as opposed to marriages affected by consent that was simply vitiated.—There has been a tendency to draw from the theory of non‑existent marriage, without always distinguishing between the kinds, certain conse-

[Page 347]

quences such as the impossibility that such a marriage produce civil effects, leading to the conclusion that logically the same consequences must inevitably follow in all cases, since that which is non-existent is incapable of producing effects.

Other writers, more recent for the most part, some of whom recognize to some extent the theoretical validity of the distinction between marriage which is null and a non-existent marriage, nonetheless see practical problems in it and would like non-existent marriages, to be treated as null and void marriages, capable of producing civil effects (V. Marcadé, Explication du Code Napoléon, 6th ed., 1869, Vol. 1, at pp. 492 ff.; Beudant, Lerebourg‑Pigeonnière and Batifol, Cours de Droit civil français, 2nd ed., 1936, Vol. 2, at p. 487; Colin and Capitant and Julliot de la Morandière, Traité de droit civil, 1957, Vol. 1, at p. 590). A few adopt the second point of view, but make exception for cases of total lack of solemnization or incontestable identity of sex (Planiol and Ripert, Traité pratique de droit civil français, 2nd ed., 1952, Vol. 2, at p. 205, No. 322). Some have even gone so far as to distinguish, perhaps not without reason, between a non-existent act, which is an aborted act, and the complete absence of an act (Louis Josserand, Cours de droit civil positif français, 2nd ed., 1932, at pp. 100, 101, 444 ff.).

The Court of Appeal whose judgment has been reported (supra, note 1), studied the doctrine and quoted most of the authorities to whom I have referred; this makes it unnecessary for me to cite them as well.

In France, case law has shown a preference for the second school, which likens non‑existence to nullity, but in most cases the parties, or one of them, while acting in good faith did not comply with the formalities required by local laws relating to solemnization. (See for example Ahmed-ben-Youssef v. Aïcha-bent-Mahomed-ben-Mustapha[2]; Decaudin v. Bayle[3];—in this latter judgment, however, the Court in an obiter dictum recognized the concept of non-existence in cases

[Page 348]

where “there is not even a semblance of validity, such as those in which there is an incontestable identity of sex or a total lack of solemnization”;—Ettouhami ben All el Hamrouni v. Dame Assia bent Sadok ben Amor Boulila[4];—in this judgment a marriage unlawfully solemnized in accordance with Tunisian custom was given the effects of a putative marriage; the consent of the wife, if any, was given by her father before notaries and not before an officer having jurisdiction with respect to acts of civil status.—)

With respect to Quebec, the Judicial Committee of the Privy Council has decided, as have the French authorities, that civil effects should be granted to a marriage where the parties, by getting married before a priest rather than a registrar, have in good faith failed to comply with local laws relating to solemnization: Berthiaume v. Dastous[5]. The Court of Appeal relied on this judgment as well as on the more recent French authors; it concluded that one cannot distinguish between two types of absolute nullity considered by some to be cases of non‑existent marriages, namely, nullity resulting from vice of form and nullity resulting from lack of consent and, as it would seem, that the theory of non-existent marriage is to be rejected. Since the Judicial Committee has granted civil effects in one case, the Court of Appeal would grant them in the other.

I have come to the same conclusions as the Court of Appeal by way of a different route.

Taken to its extremes in all cases in which it has been put forward, the theory of non-existent marriage could have very serious consequences, in civil and even in criminal law; one could, for example, in a sense try to take the law into one’s own hands by avoiding the necessity of having at the very least the non-existence of a first marriage established by judgment before contracting a new one. On the other hand, a total rejection of the theory of non-existent marriage might mean assimilating marriage to concubinage and perhaps other sorts of union deprived of even the appearances of marriage. Professor Carbonnier points out that the theory of non-existent marriage, far from being

[Page 349]

based on a “sort of rational necessity, was developed for highly practical purposes”: the need to circumvent the former rule to the effect that in matters of marriage there was no nullity unless written law explicitely so provided, and especially the desire to protect the monopoly of the civil status registry system in domestic law, if not in private international law. J. Carbonnier, Droit civil, 1969, Vol. 2, at pp. 111 and 112.

In my opinion, in an area as diverse and complex as that of marriage nullities, it is difficult to reason by analogy, just as it is hazardous to deduce through syllogisms all the consequences which should rationally follow from acceptance of a single theory or postulate. Pure deduction is particularly inappropriate with reference to putative marriages, an equitable institution which tempers the severity of nullities and at the same time holds their logic in check. Pothier expressed it well:

[TRANSLATION] 437. The situation in which a marriage, although void, has civil effects, is where the contracting parties were acting in good faith and had just cause for being ignorant of a diriment impediment which made it void.

How can this marriage which is void give such rights to the children who are born of it?—for quod nullum est, nullum producit effectum. The answer is that although this marriage, since it is considered void, cannot give them such rights, the good faith of the contracting parties confers rights on them, compensating in this sense for the defect in the marriage …

438. Does the good faith of the parties who have contracted a void marriage similarly give this marriage civil effects, thereby confirming their marriage covenants and giving the wife dower? There is reason for believing it does.

It will be argued that marriage covenants depend on the condition si nuptiae sequantur, a condition which has not been fulfilled since it cannot be said that the covenants were followed by a marriage between the parties; what followed was not a genuine marriage since it is void. The answer is that the good faith of the contracting parties compensates for the nullity of the marriage with the result that the conditions are regarded as fulfilled, just as the children born of it are considered legitimate. M. Bugnet, Œuvres de Pothier, 1861, Vol. 6, pp. 197 and 198.

[Page 350]

(This text is quoted in part in Stephens v. Falchi[6]. The example Pothier refers to in the text is a case of bigamy: the wife of a soldier, who was erroneously believed to be dead, contracted a new marriage.)

Logically a marriage which is a nullity should not produce any effects, but it produces effects nonetheless by the operation of the law if it falls in the category of those on which the law decides to confer effects. If it so wishes, the law can certainly attach effects to that which never existed or which no longer exists. The only question is whether and in what cases it wishes to do so.

In my opinion the law wishes to do so in cases of marriages contracted in good faith and the semblance of which is such that resort to the courts is necessary to avoid them. Apart from doctrinairism, of which one must be wary, and from the categorical wording of art. 116, which is a matter of style, I do not see any legal reason why, dealing with putative marriages, the legislator would, as appellant contends, enact a special scheme applying only to marriages void for absence of consent. The possibility of a marriage by an insane person is foreseen in arts. 139, 141 and 142 C.C., in the chapter on oppositions to marriage. It is important that this semblance of marriage be avoided by a declaration of nullity. Whenever the marriage is one the nullity of which must be declared, the legislator relies in my opinion on the general provisions of arts. 163 and 164 C.C. for everything concerning civil effects. These provisions do not distinguish among the causes of nullity but they refer to nullities which must be declared by judgment. This is the case of the marriage of appellant and respondent which was solemnized publicly by a competent officer with the ceremonies prescribed by law. A marriage so solemnized in accordance with the law can surely not be voided by the operation of the law. The intervention of a court is necessary, as provided in art. 163 C.C., and this article becomes applicable to a marriage so declared null subject to the conditions which it lays down.

[Page 351]

The second submission

This submission is based on the presence of the word “contracted” in art. 163 C.C. Since the marriage must have been “contracted in good faith”, there must have been a contract, which is not the case when the marriage is null for want of consent for then the contract never existed.

The expression “contracted” clearly cannot be taken in its strictest sense, since if the parties have validly contracted a marriage, the marriage cannot be declared null. The contract has to be invalid, or at the very least be open to attack. In my opinion the marriage was in fact contracted in the case at bar, but it was contracted in an invalid manner, the word “contracted” being used in as loose a sense as the word “contract” in the expression “contract void for want of consent”; thus, when there is no consent there is no contract and consequently we cannot speak of a contract; however, the expression “void contract” is frequently used because of its convenience. More than convenience is involved here, nevertheless. The aim of the clause “if contracted in good faith” is to require not a contract but rather a semblance of marriage, and also to require that the parties be in good faith at the time of the marriage. Thus there could be a putative marriage if an impediment is discovered after the marriage and if cohabitation continues: P.B. Mignault, Droit civil canadien, Vol. 1, at pp. 462 and 463. On the other hand, there could be no question of a putative marriage where no ceremony whatsoever was performed. The use of the word “contracted” in art. 163 C.C. thus has a legal significance, but not the one which appellant is suggesting.

The third submission

Respondent was not in good faith, appellant maintains, because she was incapable of being so; the concepts of good and bad faith presuppose discernment, something from which respondent was deprived. Her marriage therefore does not satisfy the fundamental condition of a putative marriage. (See Richard v. Levasseur[7]; Darche v.

[Page 352]

Byron[8]—it would appear—; M. v. P.[9]—it would appear—and Germain Brière, “Le mariage putatif” (1959-60), 6 McGill L.J. 217, at p. 221; but contra, Bergeron v. Proulx[10]; L. v. L.[11].)

No doubt an individual should be able to distinguish good from evil for him to be in bad faith. I do not think, however, that it is necessary to require the same capacity in order to say that he is in good faith when, as is the case, good faith is defined as ignorance of the reason for the invalidity of the act. Ignorance is a lack of knowledge. Whether an individual is capable or incapable of distinguishing good from evil is of little importance in this connection. There is still ignorance.

Moreover, regardless of the form the legislator used to express his intent in arts. 163 and 164 C.C., his objective basically is that there should be no bad faith. Appellant expressly alleged bad faith on the part of respondent, but he has not established its existence.

Legal opinion is divided on the advisability of applying to questions of marriage, especially where there is an error of law, the presumption in art. 2202 C.C., which is under the heading of prescription. Previously it was necessary that the error be excusable, and it is quite possible that an absolutely unreasonable error might point to a lack of good faith and help undermine the presumption which modern writers tend to accept (Mazeaud and Mazeaud, Leçons de droit civil, Vol. 1, 1st ed., No. 808, 1963, at pp. 822 and 823; Marty and Raynaud, Droit civil, T. 1, Vol. 2, 2nd ed., 1967, No. 125 at pp. 141 to 144; Azard and Bisson, Droit civil québecois, Vol. 1, 1971, No. 79, at pp. 118 to 120.) The French courts apply to putative marriages the presumption of art. 2268 C.N., the equivalent of our art. 2202 C.C. Our case law is not as well settled. I note, however, that the presumption has been applied by implication in this matter in Stephens v. Falchi, as can be deduced from the following extract from the majority opinion:

[Page 353]

I have come to the conclusion that the good faith of the respondent not being disputed, the marriage was a putative marriage in the relevant sense (at p. 361).

Whatever the case may be in other situations, I am of the opinion that mere evidence of inability to give a valid consent does not suffice to prevent the application of the presumption of good faith when the putative nature of a marriage is in question. The contrary view would be at variance with the equitable nature of the institution of putative marriage. In the instant case the trial judge noted the absence of bad faith on the part of appellant and in his judgment—which is now res judicata on this point—he expressly reserved for him all the other remedies to which he may be entitled. Appellant could therefore, in theory, claim the civil effects against respondent. (We do not have to decide whether or not he must make this claim at the same time as he requests an annulment.) If children had been born of this union, the good faith of their father would guarantee them the civil effects, under art. 164 C.C. Thus if appellant’s third submission is correct, the civil effects would be refused only to respondent, and the same would apply in all cases where one of the parties is ignorant of the other’s insanity at the time the marriage is solemnized. Rules of equity should not be interpreted so as always to deprive the weaker and more innocent party of the protection they extend to all those who did not wish to contravene the law.

Appellant’s third submission is thus also without foundation.

In the reasons for its decision, but not in its formal judgment, the Court of Appeal expressed the view that the parties are governed by the legal system of property as it existed at the time the marriage was solemnized, providing for community of property, and that the civil effects include the right to inherit and the right to maintenance.

These questions are fraught with difficulties. The Judicial Committee awarded maintenance to the wife in Berthiaume v. Dastous, a direct appeal, while French case law, on legislation almost identical to ours, distinguishes between those effects acquired on the date of the judgment declaring a nullity and other effects and does not recognize the

[Page 354]

right to maintenance after a declaration of nullity: Guy Lambert, Manage putatif, Jurisclasseur, Art. 201 to 202, Part 1. To my knowledge this Court has never expressed an opinion on the matter. This Court expressed an opinion on the right to inherit in Stephens v. Falchi, but that case involved a succession which had opened before the marriage was found null. These two decisions are also singular for procedural and jurisdictional reasons: in Berthiaume v. Dastous, the Judicial Committee deemed null a marriage in a proceeding in which initially a declaration of validity had been sought; in Stephens v. Falchi this Court granted civil effects to a marriage it did not formally annul even though it was certainly a nullity. It would also be advisable to distinguish the effects of legitimacy from the civil effects between former spouses.

We are not called upon to settle these problems for the purposes of this case and I refrain from expressing an opinion on them.

I would dismiss the appeal without costs.

Appeal dismissed without costs.

Solicitors for the appellant: Dugas, Dugas & Gagnon, Joliette.

Solicitors for the respondent: Trudel, Fontaine & Roy, Joliette.