COURT FILE NO.: FS-17-291-00 / FS-17-88486-00
DATE: 2018 06 19
Amended Date: November 1, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LOWE, Errol
– and –
A.A.
Applicant, Self-Represented
Respondent, Self-Represented
HEARD: February 21, March 26, 2018
BETWEEN:
LOWE, Errol
– and –
M.P.
Applicant, Self-Represented
Respondent, Self- Represented (not appearing)
HEARD: February 21, March 26, 2018
Corrected REASONS FOR DECISION
MCSweeney J.
CORRECTION NOTICE
Corrected Decision: The text of the original decision was corrected on November 1, 2018 as the two file numbers referenced in the text of the Reasons had been reversed inadvertently, and the description of the correction is appended and correction bolded.
Explanation: November 1, 2018: Citation has been amended as follows:
COURT FILE NO.: FS-17-291-00 / FS-17-88486-00
November 1, 2018: Paragraph 9 has been amended as follows:
Second sentence- file number: Mr. Lowe’s third wife, the Respondent A.A., also testified with respect to application FS-17-291.
November 1, 2018: Paragraph 63 has been amended as follows:
Fifth sentence- file number: His third wife, Ms. A.A., respondent in file FS-17-291…
November 1, 2018: Paragraph 64 has been amended as follows:
First sentence- file number: With respect to file FS-17-291….
November 1, 2018: Paragraph 65 has been amended as follows:
First sentence- file number: With respect to his second marriage, the subject of application FS-17-88486….
November 1, 2018: Paragraph 68 has been amended as follows:
First sentence- file number: With respect to application FS-17-291….
November 1, 2018: Paragraph 69 has been amended as follows:
First sentence- file number: With respect to application FS-17-88486 ….
Table of Contents
- overview.. 2
A Note on the Law of Annulment: 4
- Facts. 6
First marriage: 6
Second marriage: 7
Third marriage: 9
Procedural history. 10
The Issues. 11
The Law.. 11
Who can legally marry?. 11
Who can divorce?. 12
What is the court’s jurisdiction to annul a marriage?. 13
What is the difference between nullity and divorce?. 14
What are the forms of nullity?. 15
What are the legal consequences of a void or voidable marriage?. 17
Does nullity affect support entitlements?. 18
What are the legal effects of prior or subsequent marriages?. 20
Public policy regarding bigamy. 21
- Analysis. 22
Findings of bad faith. 22
Issue 1: Is Mr. Lowe’s second marriage to M.P. valid?. 23
Issue 2: Did Mr. Lowe’s 2005 divorce make his second marriage legal?. 24
Issue 3: On the basis of the above, is Mr. Lowe’s third marriage to A.A. valid?. 24
Issue 4. What orders should follow from the above?. 25
- Orders. 26
1. overview
[1] Errol D. Lowe has entered into three marriages in the province of Ontario. Two of these marriages were entered into while he had prior existing marriages. He has only been divorced once. He has appealed to the court for help in “undoing” his second and third marriages.
[2] On February 21, 2018, I ordered that his two applications be joined and heard together. These are my reasons in respect of both applications.
[3] Mr. Lowe’s circumstances are unusual. His complex marital history requires the court to examine the evidence and first determine the appropriate legal nature of each of his three relationships in order to identify the appropriate mechanisms for ending them.
[4] In order to legally end Mr. Lowe’s second and third marriages, the court must decide whether these marriages were valid in the first place. This determination will affect whether the marriages are to be ended by way of annulment or divorce. If either of Mr. Lowe’s marriages were invalid from the start because he lacked the capacity to marry, that marriage is void from the beginning and a decree of annulment may be issued. If either marriage was valid, then the proper mechanism is divorce.
[5] I should note that whether Mr. Lowe’s second and third marriages are to end in divorce or annulment has little practical implication, either for him or for his second and third wives. I say this because he has been separated from his second wife for many years and has had no contact with her since before his third marriage. He married his third wife in 2008 and has been separated from her since the spring of 2016.
[6] I should also note that none of the parties are currently seeking support from the other. However, a support claim would still be open to the parties whether I decide that the marriages are to be concluded by divorce or annulment. If the proper route is divorce and I grant a divorce order, the definition of spouse under the Divorce Act,[^1] s.15 includes a former spouse. As such, a former spouse is entitled to claim support. If the proper route is annulment, the definition of spouse in Family Law Act,[^2] s. 1(1) “spouse” (b) includes two persons who “together entered into a marriage that is voidable or void, subject to good faith on the part of the person relying on this clause to assert any right.”
[7] By way of summary, Mr. Lowe’s second marriage was invalid from the start. His later divorce from his first wife does not change the fact that he lacked the capacity to enter into the second marriage because he was already married at the time. Mr. Lowe requested a divorce in this marriage, but the proper mechanism to undo the second marriage is found in the law of annulment. By the time Mr. Lowe entered into his third marriage, however, his first marriage had ended in divorce and his second marriage had no legal standing. For this reason, his third marriage was validly entered into and must be dissolved by way of divorce.
[8] This decision will review the legal framework for the granting of annulments, the categories of nullity, some circumstances in which they may arise, as well as the legal consequences of nullity.
[9] I should note that Mr. Lowe testified at the initial return of this matter on February 21, 2018. Mr. Lowe’s third wife, the Respondent A.A., also testified with respect to application FS-17-291. She asked to be referred to by her initials in my written reasons. I have referred to Ms. A.A. and to Mr. Lowe’s first and second wives by their initials out of respect for their privacy.
A Note on the Law of Annulment:
[10] The law of annulment may seem outmoded. Much of the case law in this area dates back to an earlier time when divorce was less accessible. Indeed, the statutory basis for annulment – the Annulment of Marriages Act (Ontario)[^3] (“the Act”) – expressly adopts the laws of England as of 1870. It has not been updated since that time by Canadian legislative enactment.[^4] Given the relative ease with which parties to a marriage can obtain a divorce today and the decrease in stigma in many sectors of society of being a divorced person, it might at first appear that an understanding of the law of annulment is no longer a necessary part of a family lawyer’s toolkit.
[11] A review of the case law, however, shows this is not the case. Due perhaps to the increasing pluralism of today’s society, Canadian courts are not infrequently asked to resolve issues involving families with diverse cultural and religious norms surrounding marriage. These cases include foreign marriages entered into in jurisdictions where polygamy is considered legal, as well as cases where a marriage is not deemed formally entered into by the same criteria as in Canadian law.[^4]
[12] Annulments have also been sought where a spouse is misled or deceived into entering into a fraudulent marriage.[^5] Furthermore, because divorce may still carry stigma in some communities, annulment, where it is available, may be a preferred legal mechanism for ending a marriage. For these additional reasons, in my view, the distinction between annulment and divorce remains relevant and worthy of current articulation.
2. Facts
[13] For ease of reference, Mr. Lowe’s marriage and divorce proceedings are as follows:
Partner
Date of Marriage
Status
Marriage 1: J.B.
June 1984 (Hamilton, ON)
Separated – December 1996
Divorced – May 20, 2005 (Kitchener, ON)
Marriage 2: M.P.
February 2001 (Cambridge, ON)
Separated – January 2003
Marriage 3: A.A
August 2008 (Mississauga, ON)
Separated – June 30, 2016
First marriage:
[14] Mr. Lowe married Ms. J.B. on June 23, 1984 in Hamilton, Ontario. The validity of this marriage and of the party’s subsequent divorce were not an issue in either of the applications before me. Ms. J.B. was therefore not present nor was she a party to either application.
[15] Mr. Lowe testified that he and Ms. J.B. separated in December 1996. Mr. Lowe and Ms. J.B. were divorced by a court order registered in Kitchener, Ontario on May 20, 2015. Mr. Lowe does not dispute that his divorce from Ms. J.B. was obtained nearly nine years after he separated from her. There is no further evidence of the facts or obligations arising from the first marriage to Ms. J.B. At the time of his divorce from Ms. J.B., he had already married and separated from his second wife, Ms. M.P.
Second marriage:
[16] Mr. Lowe and Ms. M.P. married on February 9, 2001, in Cambridge, Ontario. He testified that he entered into this marriage knowing that he was still married to Ms. J.B. Mr. Lowe testified that he separated from Ms. M.P. in January 2003.
[17] Mr. Lowe and Ms. M.P. appear to no longer be in contact. Mr. Lowe provided evidence suggesting that Ms. M.P. resides in the Buffalo, New York area. He does not know her address. Mr. Lowe’s affidavit and oral evidence is that he has driven to every possible address for Ms. M.P. and her extended family, but has been unable to locate her. He swears he has also exhausted every online attempt to locate Ms. M.P. and verify her address for service.
[18] I accept that Mr. Lowe is self-represented and has made the best efforts he can to locate Ms. M.P. His efforts have not been successful, however, and there is no indication that Ms. M.P. is aware of Mr. Lowe’s application. Mr. Lowe did not seek an order for substituted service. I am concerned that Ms. M.P. is not aware of this application. She therefore does not have an opportunity to obtain advice or make submissions to the court with respect to the potential consequences to her of a finding regarding the legal status of her marriage to Mr. Lowe.
[19] In the absence of an order for substituted service, I am not prepared to make an order with respect to Mr. Lowe’s second marriage. To reach a legal determination with respect to the third marriage, however, it is necessary to make a legal determination as to the validity of the second. Both parties to the third marriage are before me on this application and are requesting relief. As such, I will make a legal determination on the validity of the second marriage, but no decree will issue until Ms. M.P. has been properly served.
[20] An Ontario Court of Justice Order dated April 17, 2012 required Mr. Lowe to pay child support for one child of his relationship with Ms. M.P., born in August 1991. The 2012 Order cancelled an earlier 2005 Order and required Mr. Lowe to pay child support to Ms. M.P. in the amount of $325 per month from January 2006 to August 2009. The child is now an adult. There appear to be no ongoing support obligations.
[21] Mr. Lowe testified that he attempted to annul his second marriage before entering into the third. He testified that he attended at City Hall in Cambridge and informed someone there that he wanted an annulment. He says he believed this effort was sufficient to conclude the marriage and took no further steps to follow up. It was only after he separated from Ms. A.A., his third wife, that he checked an online government registry, at which time he discovered that he was still married to Ms. M.P.
Third marriage:
[22] On August 8, 2008, Mr. Lowe married Ms. A.A. in Mississauga, Ontario. The parties separated in June 2016. During his evidence, Mr. Lowe apologized to Ms. A.A. for marrying without ensuring that he had ended his second marriage to Ms. M.P. He admitted to twice entering into marriages without legally ending his prior relationships.
[23] Ms. A.A. represented herself on the application. She provided testimony in support of Mr. Lowe’s application. Ms. A.A. testified that when she married the Applicant, she believed that he had legally ended his prior marriage and was free to marry her. I found her to be a credible witness. Mr. Lowe does not dispute Ms. A.A.’s testimony.
[24] At the time she married Mr. Lowe, Ms. A.A. testified that she had two children from a prior relationship. Mr. Lowe acted to some extent in a parental capacity toward her children. Ms. A.A. bore the majority of the parties’ household expenses, including paying for the mortgage. Mr. Lowe contributed to the household expenses on occasion. The children are now adults. Ms. A.A. testified that she made sure to negotiate and execute a prenuptial agreement prior to her marriage to Mr. Lowe. She did this because she knew he had been married before and had child support obligations from that marriage. She required the prenuptial agreement because she did not want to assume responsibility for any support obligations Mr. Lowe might have to his previous wife or family.
3. Procedural history
[25] The Applicant commenced two separate proceedings: one seeking a divorce from Ms. M.P., and the second seeking an annulment from Ms. A.A.
[26] Initially, the court was scheduled to hear only Mr. Lowe’s application for an annulment of his marriage to Ms. A.A. The first court date was adjourned so that Ms. A.A. could attend and provide evidence regarding any potential support obligations arising from the marriage.
[27] On the return of the application on February 21, 2018, the court heard from both Mr. Lowe and Ms. A.A., with each party providing sworn evidence. The parties were given a chance to ask questions of each other. Both parties were self-represented. Ms. A.A. was advised by the court to seek independent legal advice. She declined to do so.
[28] On this date, in the course of reviewing Mr. Lowe’s materials, the court noticed that Mr. Lowe had referenced a previous divorce on his certificate of marriage to A.A. The court asked Mr. Lowe about that prior divorce. Mr. Lowe disclosed to the court that he had been married prior to his marriage to Ms. M.P. In this way, the court first learned that Mr. Lowe had been married not twice but three times. At that time Mr. Lowe also made the court aware that he had initiated a separate legal application in which he sought to end his second marriage by seeking a divorce from Ms. M.P.
[29] Since determinations of the legal status of Mr. Lowe’s second and third marriages are inextricably linked, I ordered that both the application for divorce from Ms. M.P. (File FS-17-291) and the application for annulment of the marriage to Ms. A.A. (File FS-17-88486) be joined. The annulment and divorce applications were heard together by me on March 26, 2018.
4. The Issues
Is Mr. Lowe’s 2001 marriage to Ms. M.P. valid?
Does Mr. Lowe’s 2005 divorce from his first wife validate his second marriage?
Is Mr. Lowe’s 2008 marriage to Ms. A.A. valid?
What orders should follow from the above?
5. The Law
Who can legally marry?
[30] The Marriage Act[^6] governs marriages in the province of Ontario. Section 5 of the Marriage Act provides that a marriage license can be obtained by any person who has reached the age of majority provided no lawful cause exists to hinder the marriage. Section 8 states that individuals who have previously been married are entitled to a marriage license if the prior marriage has been dissolved by way of divorce, or annulled in accordance with Ontario law:
Marriage Act, R.S.O. 1990, c. M.3
Who may marry
5 (1) Any person who is of the age of majority may obtain a licence or be married under the authority of the publication of banns, provided no lawful cause exists to hinder the solemnization.
Where dissolution of former marriage recognized in Ontario
8 (1) An applicant for a licence who has been previously married is entitled to be issued a licence if such marriage has been dissolved or annulled and such dissolution or annulment is recognized under the law of Ontario and the applicant otherwise complies with the requirements of this Act.
Who can divorce?
[31] Two people who are married to each other can seek a divorce under the Divorce Act upon the breakdown of their marriage. A spouse or spouses can seek a divorce in isolation or together with a child support order, a spousal support order, or a custody order:
Divorce
8 (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.
What is the court’s jurisdiction to annul a marriage?
[32] Two people seeking to annul their marriage can do so on the basis of the Annulment of Marriages Act (Ontario). This Act imports the law of England related to the annulment of marriages to the province of Ontario. It further states that the Supreme Court of Ontario has jurisdiction for all purposes related to the Act. (The Supreme Court of Ontario was a precursor to the Superior Court of Justice and Ontario Court of Appeal.[^7]) The full text of this brief statute is as follows:
Short title
1 This Act may be cited as the Annulment of Marriages Act (Ontario).
Part of law of England, on 15th July 1870 continued as law of Ontario
2 The law of England as to the annulment of marriage, as that law existed on the 15th day of July 1870, in so far as it can be made to apply in the Province of Ontario, and in so far as it has not been repealed, as to the Province, by any Act of the Parliament of the United Kingdom or by any Act of the Parliament of Canada or by this Act, and as altered, varied, modified or affected, as to the Province, by any such Act, is in force in the Province of Ontario.
Jurisdiction
3 The Supreme Court of Ontario has jurisdiction for all purposes of this Act.
[33] The Act does not specify the circumstances under which annulment can be sought, nor does it describe how an annulment differs from a divorce. These factors have been developed by the common law.
What is the difference between nullity and divorce?
[34] Professor H.R. Hahlo has stated that “[a] decree of nullity is not a divorce by another name.”[^8] He explains the distinction as follows:
Whereas a divorce is based on a cause arising after a valid marriage has come into existence (eg. adultery, cruelty, supervening insanity, or marriage breakdown), a decree of nullity is based on a cause existing at the time of the marriage (ie. a prior existing marriage, relationship within the prohibited degrees, insanity at the time of marriage). And while a decree of divorce dissolves the marriage as from the date when the decree becomes absolute (ex nunc), a decree of nullity, depending on the ground of annulment, either declares that there never was a valid marriage or dissolves it with retroactive effect (ex tunc)[^9]
[35] Over a century ago, in Reid v. Aull,[^10] the court held that “Divorce assumes the previous existence of the marriage status. Its result is to put an end to that status without affecting its existence in the past.”
[36] Nullity, on the other hand, was described in Kerr v. Kerr.[^11] The court held that, in the context of insanity, “[s]uits for nullity on the ground of insanity seek not to dissolve an existing marriage, but to declare that no marriage exists.”
[37] A divorce therefore can only be granted where there is a valid existing marriage and the cause for ending the marriage arises after the marriage has come into existence. A nullity, however, will be granted in two situations: 1) where there is no valid existing marriage from the very outset, or 2) where the marriage was validly entered into but the cause for ending the marriage existed from the very outset.
What are the forms of nullity?
[38] The grounds of nullity fall into the two categories above. In the first situation, where there is no valid existing marriage from the outset, the marriage is considered void ab initio, meaning “from the beginning.” A marriage void ab initio is considered never to have taken place. A decree of nullity is purely declaratory in such a case, and is not legally required in order to end the marriage because the marriage is void already.
[39] In the second situation, where the cause for ending the otherwise valid marriage was existing at the time it was entered into, the marriage is considered voidable. A voidable marriage is considered to be a valid marriage, with all its rights and consequences, unless and until a decree of nullity is made. On a decree of nullity, the marriage is erased “as if it had never existed.”[^12]
[40] Recently, in the Ross-Scott v. Groves Estate,[^13] the British Columbia Supreme Court relied on an academic source to articulate the distinction between the void and voidable scenarios:
In Canadian Family Law, 5th Ed. Julien D. Payne and Marilyn A. Payne, the authors describe the distinctions between void and voidable marriages. At page 21, they say:
Marriages may be valid, void, or voidable accordingly to law. A void marriage is one that is null and void from its inception. It is regarded as though it had never taken place. A voidable marriage, on the other hand, is treated in law as a valid and subsisting marriage unless and until it is annulled by a court of competent jurisdiction. A voidable marriage can only be annulled on the petition of one of the spouses and the annulment must occur during the lifetime of both spouses. [...] A void marriage, however, is impeachable by third parties who "have an interest of some kind; for the object of the suit must be to procure the marriage to be voided on the ground that its validity may affect some right, or interest of the party promoting the suit". [...]A void marriage may also be impugned collaterally after the death of one or both spouses.
[41] In the following situations, marriages are considered to be void ab initio:
• One or both parties is married to another person at the time of marriage[^14]
• One or both parties did not consent to the marriage or lacked the mental capacity to consent[^15]
• The parties are related within prohibited degrees
• One or both of the parties is under the age of majority at the time of marriage
• The marriage ceremony was incomplete
[42] In the following scenarios, marriages were considered voidable:
• The marriage was entered into for fraudulent purposes[^16]
• Consummation of the marriage is impossible because of a lack of capacity; or there is a wilful refusal of a party to consummate the marriage, for instance, due to repugnance[^17]
What are the legal consequences of a void or voidable marriage?
[43] A void marriage is regarded as never having taken place.[^18] In Bolentiru v. Radulescu,[^19] Sills. J explains that no legal consequences arise from a void marriage at para. 22:
A void marriage is one that will be regarded by every court, in any case in which the existence of the marriage is in issue, as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it…. In short, a void marriage, such as a marriage where one of the spouses is still married to somebody else, is one that never existed, and from which no legal consequences will arise.
[44] Because a void marriage is considered never to have existed in law and no legal consequences arise from it, a decree of nullity is therefore viewed as “purely declaratory.”[^20] In other words, there is no legal necessity to formally annul a void marriage; a declaration of nullity is optional. Sills J. comments, however, that even though a void marriage requires no formal declaration by a court, “it is wiser to get a judicial decree annulling it in order to avoid problems in the future.”[^21] A decree of nullity in the case of a void marriage does not create a new state of affairs, but merely a declares what the state of affairs already is.[^22]
[45] On the other hand, a voidable marriage is a valid marriage with all its intended legal consequences until it is annulled. Sills J. draws the comparison as follows in Bolentiru v. Radulescu:[^23]
[A] voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction…. A voidable marriage is one that needs to be formally annulled by a court.
Does nullity affect support entitlements?
[46] Declaring that a marriage has never existed can potentially leave parties without the legal protections on relationship breakdown which are afforded to them by marriage. This concern has been addressed, in part, by statute. The FLA extends the definition of spouse to include individuals in void or voidable marriages, making them eligible to claim support under the FLA. As referenced, the definition of “spouse” under s. 1(1) of the FLA includes individuals who have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
[47] In determining entitlement under the FLA, the threshold question is whether one or both parties to a marriage entered into the marriage in good faith. In Reaney v. Reaney,[^24] Granger J. discusses the “test of good faith” in this context. The court comments that good faith requires that a party intended to comply with the laws of Ontario. In that case, the applicant seeking relief under the FLA was found to have entered into a marriage and obtained a license while knowing that he remained married to his first wife. Granger J. concluded that he could not have been acting in good faith as he had no intention of complying with Ontario law.
[48] In Debora v. Debora,[^25] the Ontario Court of Appeal distinguished the circumstances of the applicant in the Reaney case from that of the respondent, concluding that the applicant’s lack of good faith barred him, but not his wife, from obtaining relief under the FLA:
As I read it, this would refer to the respondent, (not the applicant), in the Reaney case who, unknowingly, married a bigamist. There, the marriage is void or voidable because one of the parties was legally disqualified from entering a second marriage. The innocent party to that purported marriage is given a status under the Family Law Act that he or she does not have under the Marriage Act. That is, in my view, the type of fairness which the Legislature intended to build into the scheme of distribution of assets under the Family Law Act.
[49] Thus, the FLA definition of “spouse” extends to protect the support entitlement of an innocent party in a void or voidable marriage.
What are the legal effects of prior or subsequent marriages?
[50] A marriage that is void because of a prior existing marriage does not become valid when that prior marriage is dissolved by death or divorce.[^26] Support for this principle is found in Christensen v. Rowbottom. In that case, at the time the plaintiff wife married for a second time, she was still validly married to her first husband. She sought a decree of nullity of the second marriage. The court held that the subsequent divorce registered by her first husband did not validate the second marriage which, by law, had never taken place.[^27]
[51] Because a void marriage is not a legal event, it does not constitute an impediment to a subsequent legal marriage whether or not a decree of nullity is made.[^28] The same logic articulated in Christensen applies: a void marriage never takes place. Therefore, it can have no legal bearing on a subsequent marriage.
[52] A different conclusion arises when applying this logic to a voidable marriage. Professor Hahlo comments that “a voidable marriage… is an impediment to a new marriage until it is annulled.”[^29] There appears to be some disagreement in the case law as to whether a second marriage entered into before a voidable marriage is formally annulled becomes validated once the annulment is granted. Professor Hahlo comments that in principle, a second marriage in this scenario should be valid because an annulment has retroactive effect.[^30]
Public policy regarding bigamy
[53] Bigamy is a criminal offence under section 290(1) of the Criminal Code,[^31] which states that everyone who goes through a form of marriage with another person in Canada while already being married commits a criminal offence. A conviction for bigamy can carry a sentence of up to five years imprisonment.[^32]
[54] In Canadian law, for a marriage to be validly entered into, neither spouse may already be married at the time of marriage. Bigamy occurs in each of the following situations:
• A married person goes through a form of marriage with another person;
• Any person, knowing that another person is married, goes through a form of marriage in Canada with that person;
• Any person goes through a form of marriage with more than one person on the same day or simultaneously.[^33]
[55] The above situations must occur in Canada, unless the individual is a Canadian citizen resident in Canada who leaves Canada with intent to engage in the prohibited conduct and carries out such intention.[^34]
[56] A person can be found guilty of bigamy if they are already married, and then marry again without ending the first marriage in the proper legal manner. Likewise, a person who knowingly marries someone who is already married commits bigamy. It is a defence to a charge of bigamy if the person charged can show that prior to their current marriage, they had obtained a divorce or declaration of annulment of their previous marriage.
6. Analysis
Findings of bad faith
[57] Mr. Lowe was not forthcoming in his testimony. The court therefore found it challenging to acquire thorough and complete evidence from him. He omitted information about his first marriage and divorce from his initial testimony. That history only became apparent on further questioning by the court based on the documentary evidence.
[58] The court notes that Mr. Lowe acknowledged he was aware that he was not in compliance with Canadian law when entering into both his second and third marriages. This constitutes bad faith by the definitions in Reaney and Debora. I find, however, that his third wife, Ms. A.A. was not aware of any lack of compliance with the law by Mr. Lowe. She entered into the marriage in good faith, believing that the marriage was properly constituted.
Issue 1: Is Mr. Lowe’s second marriage to M.P. valid?
[59] The law is clear that a prior existing marriage makes a marriage null and void ab initio. In Bolentiru, at para. 25, the court states that “the marriage of a person who is still married to someone else is void.” At the time Mr. Lowe entered into his second marriage with Ms. M.P., he was still married to Ms. J.B. He had not dissolved his prior marriage in accordance with s. 8(1) of the Marriages Act. Therefore, it was not possible for him to validly marry Ms. M.P. His marriage to Ms. M.P. is therefore null and void ab initio. No legal consequences arise from it.
Issue 2: Did Mr. Lowe’s 2005 divorce make his second marriage legal?
[60] Furthermore, Mr. Lowe’s subsequent divorce from Ms. J.B. in 2005 does not validate this second marriage.[^35] Because the second marriage had no legal effect, there is no marriage to rehabilitate or make valid following the 2005 divorce.
Issue 3: On the basis of the above, is Mr. Lowe’s third marriage to A.A. valid?
[61] There are two key facts that determine the validity of Mr. Lowe’s marriage to Ms. A.A. The first results from my finding that Mr. Lowe’s second marriage to Ms. M.P. never took place in the eyes of the law. It was void ab initio, because he was already married at the time he entered into it. Therefore, Mr. Lowe’s marriage to Ms. M.P. could not be a legal impediment to a subsequent marriage. Second is the undisputed fact that Mr. Lowe and his first wife, Ms. J.B., were validly divorced in 2005, three years prior to his marriage to Ms. A.A. on August 8, 2008.
[62] I therefore find that that when Mr. Lowe married Ms. A.A. in 2008, he had the legal capacity to enter into the marriage. He had obtained a divorce from his first wife, and his second marriage was void ab initio. He was therefore free to marry Ms. A.A. in 2008, and he did so. I conclude that Mr. Lowe’s marriage to Ms. A.A. is valid. I reach this conclusion on the evidence before me. I note that this conclusion is contrary to Mr. Lowe’s understanding of the validity of his marriage to Ms. A.A. It is the evidentiary findings, however, not the subjective belief of the Applicant, which determines the issue.
Issue 4. What orders should follow from the above?
[63] Mr. Lowe represented himself on both applications. He advised the court of his desire is to bring a legal conclusion to both his second and third marriages. He explained that he framed one as divorce and one as an annulment on the advice of court staff. He indicated, however, that he welcomed my determination based on the evidence as to the appropriate legal mechanism to end his second and third marriages. His third wife, Ms. A.A., respondent in file FS-17-291, supported this request with respect to her marriage to Mr. Lowe.
[64] With respect to file FS-17-291, the evidence establishes that Mr. Lowe and Ms. A.A. have been separated since at least April 2016. There are no minor children for whom support arrangements are to be made. I find that Mr. Lowe and Ms. A.A. have met the requirements of section 8 of the Divorce Act and a divorce order may issue.
[65] With respect to his second marriage, the subject of application FS-17-88486, Mr. Lowe filed an application seeking a divorce. Based on my findings of fact and analysis, divorce is not an option as Mr. Lowe’s marriage to Ms. M.P. was void ab initio. Marriages that are void ab initio, as stated earlier, need not be formally annulled. As discussed earlier, the court may make a declaration of annulment, also known as a “decree of nullity,” where it wishes to clarify the legal record of what has occurred and to prevent confusion going forward.
[66] I will not make a decree of nullity at this time due to my concerns regarding sufficiency of service on Ms. M.P. I cannot find on the record that Ms. M.P. has received the notice to which she is entitled pursuant to the Family Law Rules[^36] absent further or other order of this court.
[67] Although it would appear based on the foregoing that Mr. Lowe’s marriage to Ms. M.P. is void ab initio, I will not make such a declaration until I am satisfied that service on Ms. M.P. as been effected in accordance with the Family Law Rules. I am mindful that there may be circumstances in which the fact of decree of annulment could affect a party’s family law rights, depending on their current circumstances. It is not my intention to affect the legal rights of Ms. M.P. until she has an opportunity to be heard on this application should she wish to do so.
7. Orders
[68] With respect to application file FS-17-291, the divorce is granted. A divorce order is to issue accordingly.
[69] With respect to application FS-17-88486, the Applicant is directed to comply with the Family Law Rules regarding substituted service on the respondent Ms. M.P. He may schedule a return of this matter before me by contacting the Trial Coordinator. I continue to be seized with respect his second application.
[70] There shall be no order as to costs.
McSweeney J.
Released: June 19, 2018
Corrected: November 1, 2018
COURT FILE NO.: FS-17-291-00 / FS-17-88486-00
DATE: 2018 06 19
Amended Date: November 1, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LOWE, Errol
– and –
A.A.
- and-
BETWEEN:
LOWE, Errol
– and –
M.P.
cORRECTED REASONS FOR DECISION
McSweeney J.
Released: June 19, 2018
Corrected: November 1, 2018
[^1]: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
[^2]: Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”).
[^3]: Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A-14.
[^4]: Azam v. Jan, 2012 ABCA 197, 69 Alta. L.R. (5th) 75 (foreign marriage); Sahibalzubaidi v. Bahjat, 2011 ONSC 4075, 107 O.R. (3d) 53 (incomplete ceremony); Sangha v. Mander, (1985), 1985 CanLII 564 (BC SC), 65 B.C.L.R. 265 (S.C.) (non-consummation of marriage).
[^5]: Torfehnejad v. Salimi (2006), 2006 CanLII 38882 (ON SC), 32 R.F.L. (6th) 115 (Ont. S.C.).
[^6]: Marriage Act, R.S.O. 1990, c. M.3.
[^7]: “History of the Court,” online: Superior Court of Justice http://www.ontariocourts.ca/scj/about/history/.
[^8]: H.R. Hahlo, “Chapter 10: Nullity of Marriage” in Studies in Canadian Family Law (Toronto: Buttersworths, 1972), p. 651 [Hahlo].
[^9]: Hahlo, pp. 651-652.
[^10]: Reid v. Aull, [1914] O.J. No. 109 (S.C. – H.C. Div.), at para. 23.
[^11]: Kerr v. Kerr (1952), 1952 CanLII 220 (MB CA), 60 Man. R. 118 (C.A.), at para. 39.
[^12]: Hahlo, p. 654.
[^13]: Ross-Scott v. Groves Estate, 2014 BCSC 435, 96 E.T.R. (3rd) 277, at para. 34.
[^14]: Newton v. Newton (1975), 1975 CanLII 1952 (ON SC), 19 R.F.L. 276 (Ont. S.C. – H.C.).
[^15]: Ross-Scott v. Groves Estate; Hunt v. Worrod, 2017 ONSC 7397, 32 E.T.R. (4th) 232.
[^16]: Torfehnejad v. Salimi (2006), 2006 CanLII 38882 (ON SC), 32 R.F.L. (6th) 115 (Ont. S.C.).
[^17]: Sahibalzubaidi v. Bahjat.
[^18]: Hahlo, p. 654.
[^19]: Bolentiru v. Radulescu (2004), 2004 CanLII 6239 (ON SC), 10 R.F.L. (6th) 258 (Ont. S.C.).
[^20]: Hahlo, p. 654.
[^21]: Bolentiru v. Radulescu, at para. 22.
[^22]: Christensen v. Rowbottom, at para. 4.
[^23]: Bolentiru v. Radulescu, at para. 22.
[^24]: Reaney v. Reaney (1990), 1990 CanLII 8062 (ON SC), 28 R.F.L. (3d) 52 (Ont. S.C. – H.C.).
[^25]: Debora v. Debora (1999), 1999 CanLII 1840 (ON CA), 43 R.F.L. (4th) 179 (Ont. C.A.), at para. 11.
[^26]: Hahlo, p. 656.
[^27]: Christensen v. Rowbottom, at para. 3.
[^28]: Hahlo, p. 657.
[^29]: Hahlo, p. 658.
[^30]: Hahlo, p. 658.
[^31]: Criminal Code, R.S.C, 1985, c. C-46.
[^32]: Criminal Code, s. 291(1).
[^33]: Criminal Code, s. 290(1)(a).
[^34]: Criminal Code, s. 290(1)(b).
[^35]: Christensen v. Rowbottom, at para. 3.
[^36]: Family Law Rules, O. Reg. 114/99.