“The Marriage Act, R.S.O. 1990, Chapter M.3, contains these provisions relevant to formal validity of a marriage:
s. 4 No marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.
s. 20 No person shall solemnize a marriage unless he or she is authorized by or under section 24 or is registered under this section as a person authorized to solemnize marriage.
s. 21 The Minister shall keep a register of the name of every person registered as a person authorized to solemnize marriage . . .
s. 24(1) A judge, a justice of the peace or any other person of a class designated by the regulations may solemnize marriages under the authority of a licence.
s. 24(3) No particular form of ceremony is required except that in some part of the ceremony, in the presence of the person solemnizing the marriage and witnesses, each of the parties shall declare:
I do solemnly declare that I do not know of any lawful impediment why I, AB, may not be joined in matrimony to CD.
And each of the parties shall say to the other:
I call upon these persons here present to witness that I, AB, do take you, CD, to be my lawful wedded wife (or to be my lawful wedded husband. . . )
After which the person solemnizing the marriage shall say:
I, EF, by virtue of the powers vested in me by the Marriage Act, do hereby pronounce you AB and CD to be married.
s. 25 Every marriage shall be solemnized in the presence of the parties and at least two witnesses who shall affix their names as witnesses to the entry in the register made under section 28.
s. 28(1) Every person shall immediately after he or she has solemnized a marriage,
(a) where the marriage was solemnized in a church, enter in the church register kept for the purpose,
(b) where the marriage was solemnized elsewhere than in the church, enter in a register kept by him or her for that purpose,
the particulars prescribed by the regulations, and the entry shall be authenticated by his or her signature and those of the parties and witnesses.
s. 28(2) Every person who solemnizes a marriage shall, at the time of the marriage, if required by either of the parties, give a record of solemnization of the marriage specifying the names of the parties, the date of the marriage, the names of the witnesses, and whether the marriage was solemnized under the authority of a licence or publication of banns. Emphasis added
The Civil Marriage Act, S.C. 2005, c. 33, establishes the requirements of essential validity of a marriage including the following:
2.1 Marriage requires the free and enlightened consent of two persons to be the spouse of each other.
In her decision in Torfehnejad v. Salimi, 2006 CanLII 38882 (ONSC), [2006] O.J. No. 4633, Greer J. summarized the principles applicable in cases of annulment. Annulment in Ontario is governed by the provisions of the Annulment of Marriages Act (Ontario), R.S. 1970, c. A-14, which established that the law of England applies and that the Superior Court of Justice has jurisdiction. The Applicant was at all times both resident and domiciled in Ontario and hence this court has jurisdiction to hear the Application.
Formal validity of marriage is determined with reference to the jurisdiction where the marriage was celebrated (“lex celebrationis”). Essential validity of marriage is determined in accordance with where the parties were domiciled prior to the marriage (“lex loci domicilii”). Given that the Applicant was domiciled in Ontario and the marriage was celebrated in Ontario, the law of Ontario applies.
Black’s Law Dictionary, (10th ed.) defines the term “annulment” as follows:
A judicial or ecclesiastical declaration that a marriage is void. An annulment establishes that the marital status never existed. So annulment and dissolution of marriage (or divorce) are fundamentally different: an annulment renders a marriage void from the beginning, while dissolution of marriage terminates the marriage as of the date of the judgment of dissolution.”