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Civil Annulments in Ontario

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So you want an annulment?  Well, not so fast.  Contrary to what you may have heard, an annulment is not easily available under Ontario law.  The civil annulment is different from any religious annulment that the parties may be entitled to (for example: Catholicism provides that in certain specific circumstances, parties may be entitled to a religious annulment.  The requirements and process for this religious annulment is different from that relating to a civil annulment).

The Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A-14), provides that “the law of England as to the annulment of marriage, as that law existed on the 15th day of July 1870, …is in force in the Province of Ontario.”

Clear as mud, right?  The real substance of the law of annulment in Ontario is found in the common law, so in order to understand the law as it applies to annulments, you have to look at the relevant case law.

The first step in determining whether you are entitled to an annulment is to determine whether your marriage is “void” or “voidable”.

A marriage that is “void” is deemed never to have been properly constituted in the first place.  For example, if at the time of the marriage one of the parties was still legally married to another person, their marriage will be considered “void” – it was never properly completed.  

In contrast, a marriage that is “voidable” was properly completed, but may be set aside at a later date if one of the applicable grounds for annulment is found to have been present.  That marriage will continue to be fully legally binding unless and until a Court grants an annulment.

In Ontario, there are three established grounds for an annulment:

Annulment on the Basis of Fraud

In Ontario, marriage is considered to be more than a simple civil contract (see Iantsis (Papatheodorou) v. Paptheodorou, 1970 CarswellOnt 154 (Ont. C.A.) at para. 11).  So, the definition of “fraud” as it relates to an acceptable ground for an annulment is much narrower than that which would be sufficient to set aside a “regular” civil contract.

In order to be granted an annulment on the basis of fraud, one or both of the parties to the marriage must prove that s/he was deceived as to either or both of (i) the nature of the marriage ceremony (i.e. s/he did not understand or appreciate that the ceremony was a legally binding marriage ceremony), or (ii) s/he was deceived as to the true identity of the other party (i.e. the bride thought she was marrying John Smith, but actually married Tom White).

For a more complex discussion of the issue of immigration fraud and whether or not it constitutes a ground for an annulment, please see Iansis, supra, Torfehnejad v. Salimi, 2006, CarswellOnt 7275 (Ont S.C.J.), and Grewal v. Kaur, 2011 ONSC 1812.

Annulment on the Basis of Duress

The test for duress imposes a high threshold.  It is not sufficient for a party claiming annulment on the basis of duress to provide evidence of pressure (whether from the other party, or even his or her own family members) or of reluctance.

In order to prove duress, the party alleging duress “must prove that their mental state was so overborne by duress that they were actually in a state of ‘mental incompetence.’” H.(R.) v. T.(R.) 2011 BCSC 678 at para 19 [emphasis added].  

When considering a claim for annulment on the basis of duress, the Ontario Courts will consider the following circumstances:

  • The party’s emotional state at the time of the marriage ceremony
  • The party’s vulnerability
  • The time between the alleged coercive conduct and the marriage ceremony
  • Whether marriage was consummated
  • The residence of the parties during the marriage
  • The amount of time until the start of the annulment proceedings

The most important among these is the party’s emotional state at the time of the marriage.  S/he must be able to prove that his or her emotional state completely overtook his or her ability to consent to the marriage.  H.(R.) v. T.(R.), supra at para. 28 & 29.

Annulment on the Basis of Lack of Consummation

The definition of “lack of consummation” is similarly restrictive when considered as a ground for annulment.

If a party is seeking an annulment on the basis of a lack of consummation, it is not sufficient to establish that the parties did not have sex.  The evidence must establish that the marriage was not consummated as a result of “invincible repugnance or impossibility in the mind of at least one of the parties, akin to a psychological abhorrence, to engaging in sexual intercourse with the marriage partner.” Sahibalzubaidi v. Bahjat, 2011 CarswellOnt 8335 (Ont. S.C.J.), citing Jomha v. Jomaa, 2010 ABQB 135 (Alta Q.B.) at para. 48.

The claimant must be able to prove that consummation was essentially impossible, whether as a result of a physical or mental impairment.  The fact that the parties just didn’t get around to it, whether because they didn’t spend enough time together, or simply didn’t like each other, will not be enough to entitle them to an annulment.

About the Author

Michelle has been practicing exclusively in the area of family law since her call to the bar in 2012. She focuses on all areas of family law.

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