BACKGROUND:
This is an application brought by the Applicant Wife for an annulment on the basis that she was deceived by the Respondent Husband regarding his immigration status and intention to use the marriage to get permanent residence in Canada.
The parties are both Punjabi-Sikh immigrants. The Applicant Wife has been a permanent resident of Canada since 2016. The Respondent Husband came to Canada on a study permit that expired in December 2021. Pursuant to a departure order made by an immigration officer in March 2022, the Respondent Husband was required to leave Canada immediately.
The parties were introduced to each other by a mutual friend in May 2022. In June 2022, the parties had a shagan ceremony, which is a formal pre-wedding ritual in Punjabi culture. The parties wanted to get married in India, however due to the Respondent Husband’s immigration status, they were unable to leave the country. The parties were married in a civil ceremony in July 2022.
Following their marriage, the parties lived separately. The Applicant Wife sponsored the Respondent Husband as her spouse and in June 2023, the Respondent received permanent residency in Canda. The parties planned a religious wedding in India for January 2024, but the Applicant Wife called the wedding off in October 2023, signalling the end of their relationship.
The Applicant wife submitted her application for annulment in August 2024. The Respondent Husband claimed a divorce in his Answer. Following a case conference in December 2025, the parties agreed to a summary trial.
ISSUE:
- Should the court grant the parties a divorce or annul their marriage based on the alleged fraud?
ANALYSIS:
Divorce vs Annulment
Before making its decision, the court set out the governing principles underpinning dissolutions of marriage. Divorce terminates a valid marriage based on event occurring after the marriage. Nullity, on the other hand, arises from a defect existing as the time of the marriage. There are two types of nullity: (1) marriages that are void ab initio, meaning invalid from the outset, or (2) marriages that are voidable, meaning valid unless and until annulled by a court order.
Can a marriage be voidable if it was entered into for immigration purposes?
In this case, the Applicant Wife argued that the marriage was voidable because it was entered into for a fraudulent purpose: to receive permanent residency in Canada. As stated in Iantsis v Papatheodorou (1970), 15 D.L.R (3d) and more recently in Grewal v Kaur, 2011 ONSC 1812, the court held that a marriage is not rendered invalid merely because it was entered into solely to circumvent immigration requirements. However, the court stated that a marriage may be voidable in such a situation, if the marriage was procured through coercion or duress, or where one party was deceived into believing the marriage was genuine while the other entered into it solely to obtain permanent residence in Canada. As such, the party seeking an annulment on this basis must show that the other party deceived them, and that they acted on that deceit. It is not enough to show that the immigration status was the only or main reason behind the marriage.
As such, the court in this case was not concerned with whether the Respondent Husband was motivated to enter the marriage for immigration reasons. The court’s analysis hinged on whether the Respondent Husband deceived the Applicant Wife about his motivations to enter the marriage.
The court ultimately decided that even though the Respondent Husband entered into the marriage for immigration purposes, the Applicant Wife failed to prove that the Respondent Husband deceived her and that she acted on such deceit. When reaching this decision, the court relied on evidence that established that the Applicant Wife knew and understood that the Respondent Husband was entering the marriage in part due to his motivation to gain permanent residence in Canda, including:
- In her Amended Application, the Applicant Wife made several admissions which indicated that she knew of the Respondent Husband’s immigration challenges prior to the marriage, including the fact that his work permit had been refused and his arrangements for a Labour Market Impact Assessment which is a requirement to be hired as a foreign worker in Canada.
- Prior to the shagan ceremony, the Respondent Husband provided the Applicant Wife with a copy of his most recent work permit refusal;
- The Applicant Wife offered to speak to an immigration consultant to assist him with his work permit since a spousal file could take a long time to process;
- Prior to the engagement, the Respondent Husband disclosed to the Applicant Wife that he was applying for a study permit through a sham college;
- The Applicant Wife was prepared to lie to the IIRC when she declared that she had been cohabiting with the Respondent Husband since July 2022; and
- The Respondent Husband informed her that he needed several photographs of the shagan ceremony to support his visa application.
Additionally, the court determined that the Applicant Wife’s circumstantial evidence including the small size of the civil ceremony, that the parties never lived together after the marriage, and that the Respondent Husband didn’t consider the civil ceremony to be a real marriage since his family was not present, did not meet the burden of proving that the marriage was fraudulent.
CONCLUSION:
The Applicant Wife’s application for annulment was dismissed. The court ordered the parties to be divorced and for it to take effect 31 days after the date of the order. The Respondent Husband was awarded costs in the amount of $5,000.00.
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Categories: Divorce, Annulment, Immigration