How To Annul A Marriage In Ontario

Want to know how to annul a marriage in Ontario? 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 (Arevalo v McHenry, 2019).

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When his first marriage fell apart after only a year, a 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 and consequently, it was January 2019 before the final divorce order (decree absolute) was granted.

How To Annul A Marriage In 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. Their plan was to annul, remarry and then reapply to sponsor the new wife to enter and live in Canada.

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How To Annul A Marriage In Ontario

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 what 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 in Grewal v Kaur, 2009. 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.

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Canada’s Immigration and Refugee Protection Act

“…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.”

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.”

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 (Iantsis v Papatheodorou,1970) that found immigration fraud is not a reason to void a marriage. 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.

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Disputed The Facts At His Divorce Trial

The two parties had different versions about 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 licence 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. 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,  then moved onto 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.

Testimony Lacked Credibility

The judge disagreed. He found the husband’s testimony lacked credibility. Although the husband regretted his decision, the marriage licence 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.

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