“Parties seeking to annul their marriage can do so on the basis of the Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A-14 (“AMAO”). This statute provides that the law of England on July 15, 1870 relating to the annulment of marriages is the law in Ontario. It also establishes that this court has jurisdiction for all purposes under the AMAO.
The AMAO does not set out the circumstances under which an annulment can be granted. This has been developed by the common law: Lowe v. A.A. and Lowe v. M.P., 2018 ONSC 3509, 294 A.C.W.S. (3d) 115, at para. 33.
The common law establishes that annulment and divorce are two different ways of ending a marriage. In Lowe, at para. 34, the court cites Professor H.R. Hahlo, “Chapter 10: Nullity of Marriage” in Studies in Canadian Family Law (Toronto: Butterworths, 1972) p. 651, for an explanation as to the distinction between divorce and nullity:
Whereas a divorce is based on a cause arising after a valid marriage has come into existence (e.g. adultery, cruelty, supervening insanity, or marriage breakdown), a decree of nullity is based on a cause existing at the time of the marriage (i.e.. 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).
Annulment does not necessarily leave parties without the legal protections on relationship breakdown that would otherwise have been afforded to them by marriage: Lowe, at para. 46. The Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), extends the definition of “spouse” under s. 1(1) to include two persons 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.” In other words, a party who enters a marriage that is annulled may still make claims for support or equalization of net family property under the FLA, if they entered the marriage in good faith: Lowe, at paras. 46-49.”