Annulling a Marriage for Immigration Fraud in Ontario

If you were tricked into a marriage that someone else used to get immigration status, you may feel trapped by a legal bond you never truly accepted. You may also worry that the marriage could hurt you with immigration authorities. Both worries are reasonable, and they involve two separate legal systems.

This article explains what an Ontario court is generally asked to look at in an annulment, what immigration law says about sham relationships, and why the two do not automatically line up. The effect on a particular person's status depends on their facts, so an immigration lawyer's advice matters here.

Can a court annul a marriage obtained by trickery?

The Civil Marriage Act says marriage requires the free and enlightened consent of two persons to be the spouse of each other. If you were deceived about what the marriage was for, you may be asking whether your consent counted. Whether a particular deception is enough to make a marriage void or voidable is a legal question that depends on the facts, and the law here is unusual.

Ontario annulment law comes from the federal Annulment of Marriages Act (Ontario), which applies the English law of annulment as it stood on 15 July 1870, so far as it can be applied, and gives jurisdiction to what is now the Superior Court of Justice. The Supreme Court of Canada has said that a validly solemnized marriage may, under English law, be void or voidable on grounds other than those giving a right to divorce.

Because the rules are old and fact-driven, a lawyer needs to look at what you were told, what you knew, and when. Do not assume that being misled will, on its own, lead to an annulment.

Annulment is not the only route

If annulment is not available on your facts, divorce may be. The Divorce Act lets a court grant a divorce when the marriage has broken down, shown by spouses living separate and apart for at least one year immediately before the determination, or by adultery or cruelty that makes continued cohabitation intolerable. A court in a province can hear a divorce if either spouse has been habitually resident there for at least one year immediately before the proceeding starts.

A court annulment does not itself decide immigration status, so get advice about both the family law and the immigration side.

What immigration law says about sham relationships

Immigration authorities apply their own test. Under the Immigration and Refugee Protection Regulations s. 4(1), a foreign national is not considered a spouse, common-law partner or conjugal partner if the relationship was entered into primarily to acquire any status or privilege under the Act, or is not genuine. A court annulment does not itself decide immigration status.

The same part of the law matters for misrepresentation. IRCC's sponsorship guidance says false documents or misrepresented facts lead to refusal and a record of the misrepresentation. Misrepresentation is dealt with under section 40 of the Immigration and Refugee Protection Act.

What these points mean in practice depends on who you are:

• If you are the sponsor who was deceived, immigration authorities may still look at the sponsorship, so keep records that show what you knew and when.
• If you are the foreign national who was pressured or misled, your own status and any application you made are separate issues from the family court case.
• How a court annulment affects removal, inadmissibility or a victim's status depends on the facts, so ask an immigration lawyer rather than assuming an annulment cleans the record.

Things to be careful about

Whatever you decide, accuracy matters. Do not sign immigration or court documents that you know contain false statements, and do not sign anything you do not understand. False documents or misrepresented facts lead to refusal and a record of the misrepresentation.

There is also a criminal law angle in some marriage situations. A person charged with bigamy has a defence if the earlier marriage was declared void by a court of competent jurisdiction. That is a narrow point about one offence and does not mean an annulment solves other problems. A new marriage cannot be contracted until every previous marriage has been dissolved, so do not remarry before you know your marital status.

Money issues can arise too, such as property, support or immigration sponsorship obligations. How these work after an annulment depends on the facts, so ask about them early.

What to do next

Acting carefully and keeping good records puts you in the best position to get useful advice.

• Write a dated timeline: how you met, what you were told, when you married, and when you learned the truth.
• Keep messages, emails, social media posts and payments that show the other person's intentions.
• Collect your marriage certificate and all immigration documents filed by either of you.
• Do not sign new immigration forms or declarations without advice.
• Speak to both a family lawyer about annulment or divorce and an immigration lawyer about your status.
• If you feel unsafe, contact local emergency or support services right away.

If you need to start a court case, a lawyer can explain the forms, the fees and how filing works. Family filings in the Superior Court go through online portals, and fee waivers are available for people who qualify.

Frequently asked questions