Court File and Parties

COURT FILE NO.: F366/19 DATE: 20190524 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Elizabeth Vallejo Arevalo, Applicant AND: Patrick J. McHenry, Respondent

BEFORE: TOBIN J.

COUNSEL: Self represented, applicant Self represented, respondent

HEARD: May 24, 2019

Endorsement

[1] The applicant brings an application in which she seeks a declaration that her marriage to the respondent is a nullity. The respondent consents to the declaration sought being made. The basis for this claim is that the respondent was married at the time the applicant and respondent married.

Facts

[2] The respondent married Yao Lijuan on November 29, 2011.

[3] They separated in 2012. The respondent initiated the divorce proceedings in 2013.

[4] A divorce order was granted in that proceeding on December 5, 2018. The certificate of divorce discloses that the divorce took effect on January 5, 2019.

[5] The applicant and respondent understood that the process took approximately five years to complete because the respondent’s counsel in the divorce proceeding had difficulty locating Ms. Lijuan.

[6] There was no contact between Ms. Lijuan and the respondent for many years. Both the respondent and the applicant assumed that the respondent’s marriage to Ms. Lijuan had been dissolved.

[7] On August 4, 2017, the applicant and the respondent married.

[8] Following their marriage, the respondent applied to sponsor the applicant as a spouse for immigration purposes.

[9] The respondent received correspondence from Immigration, Refugees and Citizenship Canada that he was not eligible to sponsor the applicant because at the time of his marriage to her he was not divorced from Ms. Lijuan.

[10] The applicant and respondent seek an order declaring that their marriage is a nullity so that they can marry and have the respondent apply again to sponsor his spouse for immigration purposes.

Legal Considerations

[11] The Annulment of Marriages Act, R.S.C. 1970, c. A-14 provides the Superior Court of Justice with the jurisdiction to annul a marriage: see also Lowe v. A.A., 2018 ONSC 3509 at 32.

[12] A ground for annulment is a previously existing marriage. In Bolentiru v. Radulescu Justice Sills held at para. 25:

A previous existing marriage is a common law ground for annulment, and the marriage of a person who is still married to someone else is void. (See for example Dalrymple v. Dalrymple (1811), 2 Hagg. Con. 54 (U.K. H.L.) (on appeal (1814), 2 Hagg. Con. 137n (U.K. H.L.)); Hayes (falsely called Watts) v. Watts (1819) 3 Phillim 43); Miles v. Chilton (1849), 1 Rob. Ecc. 6841 (U.K. H.L.); Andrews v. Ross (1988), 14 P.D. 15 (Eng. Prob. Ct.); and Tumer v. Memyers (1808), 1 Hagg. Con. 414 (U.K. H.L.), at 418.

[13] Also s. 2.3 of the Civil Marriages Act, S.C. 2005 c. 33 prohibits a person from contracting a new marriage until every previous marriage is dissolved by death, divorce or declared null by a Court Order: C.(M.S.) v. J.(C.F.) 2017 ONSC 2389.

[14] A void marriage is one that is null and void from its inception. It is regarded as though it had never taken place: Canadian Family Law, 5th ed. Julian D. Payne and Marilyn A. Payne at page 21.

[15] I am satisfied on the evidence that on the date that the applicant and the respondent purported to marry, the respondent was already married to another person.

[16] In the result, and on the basis of the consent of the parties, the marriage entered into between the applicant and the respondent on August 4, 2017 is declared void by reason of the prior existing marriage of the respondent.

Order

[17] Accordingly the marriage that purportedly took place on August 4, 2017 between the applicant and the respondent is annulled.

Justice Barry Tobin

Date: May 24, 2019