Zant v. Zant, 2022 BCSC 2023 is a family law decision concerning a couple that were married in November 1999 and separated in March 2016.
The circumstances surrounding this case are highly unusual. The Wife received news of her marriage's annulment without ever engaging with the process. When she found out her marriage had been annulled without her consent, she became distraught and sought an application to set aside the annulment order.
In this article we will take a look at the circumstances surrounding the annulment.
The Fraudulent Application Response
On November 3, 2021, the Husband filed a notice of application seeking multiple orders including an order annulling the marriage. In his supporting affidavit, the Husband deposed to facts that the parties' marriage in the Cook Islands was not a legal marriage as the Wife had failed to produce proof that she was divorced from her previous husband.
On November 10, 2021, the court received an application response that contained the signature of the Wife's name. The application response consented to the orders sought by the husband and included the following claims:
- The Wife was aware that the marriage in the Cook Islands was not legally binding as she did not tell the Husband that she had not divorced her previous husband.
- The Wife was still married to her previous husband and she had not lived together with the Husband for more than two years so had no legal rights to his pension or benefits.
- The Wife had lied and emotionally abused the Husband.
The application for annulment came before the BC Supreme Court (the "BCSC") on November 24, 2021 by remote audio connection. The attendees identified themselves as the Husband and the Wife and submitted a consent order prior to the hearing bearing both of their signatures. Based on the information, the BCSC granted the orders sought for annulment and that the Wife was not entitled to any benefits from the Pension Plan and could not be a designated beneficiary on the Husband's plan.
Involvement of the Pension Plan
After receiving the annulment order, the Husband filed it and delivered a copy to the pension plan. The administrator of the pension plan advised the Wife and she became distraught as she claimed she was unaware of any court proceedings, she did not sign any court order, and she was not present for the audio hearing before the BCSC. After further investigation, the pension plan brought an application to set aside the annulment order on the basis that it was obtained by an abuse of process, fraud, perjury, or a deliberate attempt to mislead the court.
Application to Set Aside the Annulment Order
The pension plan applied to set aside the annulment order pursuant to s. 200(2) of the Family Law Act [FLA] and pursuant to the inherent jurisdiction of the court. Section 200(2) provides:
If an order was made in the absence of a party, the court, in accordance with the Supreme Court Family Rules or the Provincial Court Family Rules, as applicable, may change, suspend or set aside the order.
In its determination, the BCSC accepted the following evidence of the Wife that:
- she had not been served with any pleadings in the annulment proceeding;
- she had been unaware of the proceeding;
- she did not prepare or file the application response;
- the signature of the application response was not hers; and
- she had been divorced from her previous husband in September 1999.
The court found that the Wife did not attend the hearing for the annulment application, and that whoever did attend by telephone was an imposter. In setting aside the annulment order, the court stated "where an imposter appears at an application representing themselves as a party, without the consent of the actual party, there is sufficient grounds to set aside the orders made at the application pursuant to s. 200(2) of the FLA.
In addition, the court found that it was necessary to set aside the annulment order pursuant to the inherent jurisdiction of the court. The court also has inherent jurisdiction to set aside a consent order where there are grounds that would invalidate a contract. The court noted that the terms included in the annulment order were consent orders and that it was an imposter that consented to the orders. As the Wife did not agree to the terms of the order, the order may be set aside on the basis that there was no agreement between the parties.
The BCSC ultimately granted the Wife's application to set the annulment order aside.
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