S.S. CO-PETITIONER - v. –, 2023 SKKB 169

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation 2023 SKKB 169 Date: 2023 08 10 Docket: DIV-PA-00014-2023 Judicial Centre: Prince Albert BETWEEN: S.S. CO-PETITIONER - and – H.K. RESPONDENT PUBLICATION RESTRICTION: The publication of these reasons is restricted such that any information that could identify the parties herein shall not be published in any document or broadcast or transmitted in any way. Counsel: S.S. on her own behalf H.K. on his own behalf FIAT ZUK J.

August 10, 2023 [ 1 ] The co-petitioner S.S. applies for a judgment in an uncontested family law proceeding requesting a judgment granting an annulment of the parties marriage. The parties filed a joint petition on February 8, 2023 seeking nullity of the parties marriage. The parties concede that they went through a civil marriage ceremony on May 28, 2022 as evidenced by a Registration of Marriage as an exhibit. [ 2 ] The parties contend that they ceased to cohabit as spouses on or about October 2, 2022.

The grounds for the annulment are an alleged invalid Registration of Marriage; namely the marriage commissioner’s failure to follow the procedural timelines and witness provisions set out in The Marriage Act, 2021, SS 2021, c 16 [ Act ]. [ 3 ] The parties contend that the Registration of Marriage document was signed by the parties and the marriage commissioner on May 29, 2020 in the absence of witnesses. According to the parties, the marriage commissioner obtained witness

signatures at some later date who signed the Registration of Marriage as witnesses to the marriage ceremony in the absence of the parties. It is unclear if the witnesses, or either of them, attended the ceremony on May 28 th . The marriage commissioner subsequently submitted the Registration of Marriage and was accepted for registration by eHealth Saskatchewan on June 29, 2022. [ 4 ] Although the Court of King’s Bench has authority to grant an annulment of a marriage, applications to annul a marriage are exceedingly rare.

The Province of Saskatchewan has not enacted legislation respecting the granting of annulments and the Act contains no reference to marriage annulments. [ 5 ] In Grewal v Bal, 2020 BCSC 1588 [ Grewal ] the court confirmed that the law relating to an annulment of marriage is governed by common law at para. 10 as follows: [10] Divorce is governed by statute, the Divorce Act , R.S.C., 1985, c.3 (2nd Supp .). The legal requirements that enable the court to make an order for divorce are clearly set out in the statute. However, the law relating to annulment of marriage is governed by common law.

Where annulment of a marriage is claimed, various findings of fact must be made, depending on the precise grounds advanced [ 6 ] However, the court in Grewal noted that applications for an annulment contrast sharply to applications for judgment of divorce in an undefended family law case. The court stated the following at para. 23: [23] I add the following comments. Orders for divorce are commonly granted as desk orders. In the case of divorce orders, the evidentiary and procedural requirements for the order are quite clear, as are the administrative processes and the rules of court.

However, given the findings of fact that are required in order to grant a judgment annulling a marriage, I suggest that an application for a desk order annulling a marriage is almost certainly doomed to fail. Therefore, the more appropriate practice would be to commence an action, and to proceed to a trial, or perhaps a

summary trial. Applications for annulment by way of desk order are likely to be a waste of time and expense for the parties, and a waste of judicial resources, as in this case. [ 7 ] As in the Grewal decision, I conclude that I am unable to grant a judgment annulling the parties marriage. [ 8 ] First, it is unclear whether the parties were married through a religious service held May 28, 2022 where family were gathered and a form of service appears to have been conducted by a clergyperson, who was also the marriage commissioner.

Alternatively, the parties could have been married on May 29, 2022 when the parties attended before the clergyperson acting in his capacity as a marriage commissioner. [ 9 ] Notwithstanding the document being signed on May 29, the parties completed the Registration of Marriage form inserting May 28, 2022 as the date of the marriage. Accordingly, the parties signed the Registration of Marriage document on May 29 knowing that the date inserted in the document differed from the date upon which they were signing the Registration of Marriage document.

It remains unclear whether the parties believed they were married on May 28, May 29 or at all. [ 10 ] The parties do not state when they became aware that their purported marriage may not have been solemnized in accordance with the provisions of the Act . Apparently, the co-petitioner S.S. expressed concern to the marriage commissioner on May 29 when she questioned the marriage commissioner regarding the legality of the marriage given the absence of witnesses. [ 11 ] The parties disclose that they separated on or about October 2, 2022, some four months after their purported marriage.

The parties do not disclose whether they separated on that date due to concerns respecting the validity of their marriage or for other reason. The parties do not provide any evidence whether they believe that they were validly married on May 28 or May 29, 2022 and subsequently came to the conclusion that their marriage was not valid upon discovering that the formalities of the Act were not complied with.

The parties do not state that, even at present, they do not believe that they are validly married. [ 12 ] Rather, the parties rely on an apparent contravention of the Act by virtue of the officiant solemnizing a marriage in the absence of at least two witnesses contrary to s. 5 - 4 of the Act . [ 13 ] Although the Act makes it an offence in s. 9-2 to solemnize the marriage contrary to the Act and s. 9-3 creates an offence for any person who willfully makes a false statement respecting the particulars required to be recorded and reported pursuant to the Act , the Act is silent with respect to the validity of a marriage performed contrary to the provisions of the Act . [ 14 ]

Section 3-14 provides that no irregularity in the issue of a licence that has been obtained or acted on in good faith invalidates a marriage solemnized under the authority of the licence.

There is no similar provision for maintaining the validity of a marriage solemnized in contravention of the requirement that two witnesses be present during the solemnization of a marriage as set out in s. 5 - 4 . [ 15 ] Nor is there any reference in the Act respecting the failure of a marriage commissioner to submit the statement of marriage and completed marriage licence to the Registrar of Vital Statistics within seven days as required under s. 5 - 8(2) of the Act . [ 16 ] Notwithstanding the absence of any provision in the Act declaring a marriage to be valid notwithstanding non- compliance with the provisions of the Act by the civil commissioner or religious officiant, it is unlikely that the legislature intended to make a marriage entered into in good faith by the parties either void or voidable by virtue of procedural non-compliance with the Act . [ 17 ] In addition, there are strong policy reasons for maintaining the validity of a marriage between two persons acting in good faith notwithstanding non-compliance with the procedural requirements of the Act .

Potentially, any irregularity in conducting, or reporting the marriage would provide one or both of the parties to the marriage holding a “get out of marriage” card if annulments based on the irregularity of proceedings was permitted. [ 18 ] Nor is it appropriate to grant an annulment of a marriage due to an alleged irregularity in the absence of evidence from the person alleged to have committed the irregularity. The marriage commissioner is not a party to the proceedings and has no opportunity to refute the allegations or otherwise offer any explanation to the court. This evidence may be crucial when

addressing the procedure followed by the marriage commissioner. [ 19 ] The applicants provide no explanation for acting on the alleged irregularity months after becoming aware of the irregularity. Presumably, the parties could have insisted that the marriage commissioner conduct the ceremony in compliance with the Act . Or they could have obtained another marriage commissioner to conduct a marriage in compliance with the Act .

It is not appropriate for parties to participate, or acquiesce, in a procedurally flawed marriage ceremony and then hold the irregularity in abeyance until one or both decide they no longer wish to remain married. [ 20 ] It is possible to arrive at the conclusion that the parties are second-guessing their decision to marry.

Rather than proceed under the Divorce Act, RSC 1985, c 3 (2 nd Supp ) and comply with the provision of living separate and apart for one year, the parties have opted for a process that potentially provides for an immediate ending of their marriage. [ 21 ] Accordingly, the application for judgment in an uncontested family law proceeding seeking annulment of the marriage is dismissed with leave to proceed by notice of application for judgment.

Given the unusual circumstances surrounding this application, in the event that the parties wished to proceed with their application for annulment of their marriage on the basis of non- compliance with the provisions of the Act , I direct that service of the notice of application along with the petition be served on the Ministry of Justice and Attorney General to provide an opportunity to seek third party status or otherwise make representation with respect to the issues raised. [ 22 ] Accordingly, the application for a judgment annulling the marriage is dismissed with leave to reapply following the procedure set out in this paragraph.

J. L.W. ZUK