An annulment vs. a divorce in Ontario, which one is right?

Annulment is a legal procedure that nullifies a marriage, making it as if it never happened. It is distinct from divorce, which terminates an existing marriage. Annulment is granted by the Superior Court of Justice, Family Court, under specific conditions.

The most frequent reason for an annulment in Ontario is fraud or misrepresentation, such as one partner hiding a previous marriage or having a concealed medical condition that would have influenced the decision to get married.

Ontario Annulment and Divorce: Which is Right for You?

Other grounds for annulment include one partner being underage or unable to provide informed consent, or the marriage being entered into under duress or coercion.

The annulment process in Ontario is more complex than obtaining a divorce. First, you need to satisfy the criteria for an annulment, which can be determined by legal counsel.

Once you have confirmed that annulment is the appropriate course of action, you must file an application with the court that includes a sworn affidavit outlining the reason for the annulment.

Application on your spouse

The next step is to serve the application on your spouse. If your spouse does not respond, you can proceed with the annulment without their input. However, if they object to the annulment, they can file a response with the court.

If the court determines that the reasons for annulment are valid, it will grant an order declaring the marriage null and void, effective retroactively as if the marriage never existed.

It is essential to note that an annulment can have significant legal and financial consequences, such as dividing property and providing spousal support. Before starting the process, it is recommended to consult a family lawyer to understand the implications of an annulment.

An annulment in Ontario is a legal procedure that cancels a marriage, but only under specific circumstances. It is different from divorce, and the process is more complicated. Consult a family lawyer if you are considering annulment to ensure you meet the criteria and understand the implications of the process.

A story about annulment

You thought you had started a new life. Imagine your surprise when you discover you are married to two women at once. An Ontario man who married in 2017, then applied to sponsor his wife to Canada encountered just that dilemma.

When his first marriage fell apart after only a year, the couple separated and went their separate ways.

The husband filed for divorce in 2013, after living apart for a year. The application wound its way through court until December 2018. His lawyer reported having problems locating the ex-wife.

It was in January 2019 before the final divorce order (decree absolute) was granted.

Annulment vs. Divorce Ontario

As the years went by, neither party stayed in contact. The husband told the court he had assumed their marriage was over and so, in 2017, remarried.

Immigration, Refugees, and Citizenship Canada had a different view.

Scouring his application to sponsor his new wife, the federal government department determined he was ineligible because, at the time of his remarriage, he was not divorced from his ex-wife.

That made his second marriage invalid. The new couple petitioned the Ontario Superior Court of Justice (ONSC) to annul their marriage.

They planned to annul, remarry, and then reapply to sponsor the new wife to enter and live in Canada.

The Legal Distinctions: Annulment versus Divorce in Ontario

You might be able to file an application with the courts to get your marriage voided. We have lawyers in Toronto and Ottawa that can appear for you.

They will put together an argument for the judge for why your marriage should be cancelled. The lawyer will write the order and see if they can get the judge to sign it.

If you need this service, please call us and let us know if you want to file an application with the court.

Marriage is a contract between two parties and, like other contracts, can be declared invalid. Canada’s Civil Marriages Act prohibits contracting a new marriage until every previous marriage is dissolved by death or divorce or declared null by court order.

Such a court order gives the marriage the effect of having never taken place. In other words, it was null and void from the start.

Can The Marriage Be Annulled?

Fortunately for this couple, a court order was all it took to dissolve the marriage so they could start over.

But what happens when one partner is “tricked” into marrying so that their spouse can enter Canada? Can that union be annulled?

ONSC was faced with just that question. Alleging immigration fraud, the husband asked the court to annul their marriage.

He argued that living together as husband and wife was no reason to assume a marriage was valid.

Canada’s Immigration and Refugee Protection Act says that:

“…a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purposes of acquiring any status or privilege under the Act.”

Steps to Take: Annul A Marriage In Ontario

Given that regulation, was declaring Mr. Grewal’s marriage a fraud necessary?

The judge recognized that, for face-saving or cultural reasons such as personal or family honour, some spouses prefer annulment to divorce. But as the judge commented:

“Certain individuals may be motivated by the belief that for cultural and/or personal reasons an annulment is preferable to a divorce.

While these beliefs may be sincerely held, I see no good reason to recognize a legal right to an annulment.”

Fraud Is Grounds For Annulling A Marriage

The ONSC declined to annul the couple’s marriage but agreed that living together or consummating a marriage were not grounds to absolutely refuse an annulment.

The judge’s decision was based on Ontario’s laws and previous court cases that found immigration fraud is not a reason to void a marriage.

Annul A Marriage In Ontario

Nothing, however, prevented Mr. Grewal from bringing forward a new application citing the Hindu Marriage Act. That act, according to Mr. Grewal’s legal counsel, does make fraud a ground for annulling a marriage.

Like so many things in the law, court decisions are based on your case’s unique facts. But what if your spouse argues they were tricked into marriage while drunk? That was the case in Anthony v Anthony (2019) when an Ontario man disputed the facts at his divorce trial.

Do you want to know how to annul a marriage in Ontario? Contact us via the live chat in the bottom right of the screen.

Ground For Annulling Such As Short Marriages

The two parties had different versions of what happened the day they married in July 2004. The wife told the court her husband of 15 years proposed to her on her birthday.

They had dated for 10 years and lived together since 2003. She said it was his idea to get married and they spent the day buying a marriage license and shopping for a dress and shoes.

Her sister and his best friend agreed to be last-minute witnesses at the North York Civic Centre ceremony. The newly married couple celebrated with dinner at their apartment that evening.

But her husband didn’t recall those events. He said he and his best friend spent the early afternoon drinking at a bar. About three hours into their drinking session, his then-girlfriend came to the bar, where they argued.

Prove they were married

She told him her mother disapproved of the couple living together and demanded he sign a paper to prove they were married. He signed and resumed drinking.

Later that afternoon, again at her request, he and his friend drove to the North York Civic Centre. He was met there by a marriage officiant and signed the disputed marriage papers, witnessed by his friend.

The gentleman says he giggled and laughed throughout the ceremony and estimated he had consumed seven or more beers.

He and his friend went back to the bar after the ceremony, continued to drink, and then moved on to a house party, where they consumed yet more alcohol.

His friend told the court he knew he was witnessing marriage papers. But the husband said he thought it was a joke and never considered himself to be married.

Annulment vs. Divorce Ontario

The judge disagreed. He found the husband’s testimony lacked credibility.

Although the husband regretted his decision, the marriage license was signed by government officials who had a legal responsibility to prevent an intoxicated person from signing a document they were unable to understand.

Regrets do not reverse or void a marriage. Nor do they relieve a spouse of their financial responsibilities for potential spousal support or to share their assets upon divorce.

A marriage made in good faith is a serious contract, not to be taken lightly. If you are questioning annulling your marriage or believe your marriage may not be valid, talk to ClearWay Law’s family law lawyers.

We hope you found this article on annulment vs. divorce in Ontario useful.

Author: Alistair Vigier is the CEO of ClearWay Law