Dealing with Claimants Who Have Entered Voidable or Void Marriages in Good Faith in the Context of Priority Disputes – the Second of our Three-Part Series Dealing with the Definition of “Spouse” in the Insurance Act
Welcome back to our series exploring the definition of “spouse” under section 224(1) of the Insurance Act.
In Part One, we saw that whether a claimant qualifies as a “spouse” can significantly impact AB coverage obligations and may shift priority of their AB claim to an entirely different insurer. We reviewed the three-part definition of “spouse” in section 224(1) but focused on individuals who are legally married – the first of the three statutory definitions. We also looked at priority disputes hinging on what it means to be “legally married” and saw that it’s not as straightforward as one may think.
Now, in Part Two, we dive deeper into the next definition: what it means to “have entered into a marriage…that is voidable or void, in good faith on the part of the person asserting a right under [the] Act.”
Recap: What is a “Spouse”
Recall that the Statutory Accident Benefits Schedule (SABS) defines the term “spouse” as it is defined in Part VI of the Insurance Act. The Act defines a “spouse” as either of two individuals who:
- are married to each other;
- have entered into a marriage to each other that is voidable or void, in good faith on the part of the person asserting a right under the Act; or
- have lived together in a conjugal relationship (outside of marriage) continuously for at least 3 years, or in a relationship of some permanence and are the biological or adoptive parents of a child.
If you missed Part One of this series, click here to read more about definition #1. And stay tuned for Part Three which will deal with definition #3.
Definition #2: Voidable or Void Marriages that are Entered into in Good Faith
At first glance, definition #2 may sound like a fancier, more elaborate way of saying definition #1. Both definitions seem to deal with people who were married. But they are actually quite different.
Recall, definition #1 captures those who entered a marriage that is recognized as legally valid. The analysis is simpler: either a couple is legally married (i.e. not divorced), or they are not.
By contrast, definition #2 deals with those whose marriages were subsequently found to be legally invalid. This analysis is not as straightforward. It requires a deeper factual analysis, as it considers the claimant’s state of mind, knowledge, and intentions at the time of the marriage.
Recognizing which definition applies can be critical when investigating priority of an AB claim. If the marriage was valid from the start (i.e. per definition #1), the investigation is relatively straightforward. However, if there is any suggestion that the marriage could be void or voidable (i.e. per definition #2), a more extensive investigation will be needed to determine whether the claimant truly believed their marriage was legitimate.
Void vs. Voidable Marriages
A void marriage is one that was never legally valid from the outset. It is considered null and void, as if it never occurred. Common reasons for which a marriage may be void include:
- a failure to meet formal requirements, i.e. the marriage did not comply with the Marriage Act requirements (e.g. it was not properly solemnized);
- bigamy, i.e. the marriage involved one party who was legally married to someone else at the time of the ceremony; and
- prohibited relationships, i.e. the marriage was between close relatives.
A voidable marriage, by contrast, is presumed valid and remains valid until it is challenged and ultimately annulled by a court. Common grounds for challenging and annulling a marriage include:
- a lack of mental capacity, i.e. the marriage involved a party who lacked the mental capacity to consent to the marriage;
- failure to consummate, i.e. the marriage was never physically consummated due to an incapacity; and
- fraud or duress, i.e. the marriage involved a party who was forced or deceived into entering the marriage.
The Role of Good Faith
The crucial part of definition #2 really lays in the latter part of the definition: “…in good faith on the part of the person asserting a right under the Act.” After all, even if a marriage is declared void or voidable, a claimant may still be considered a “spouse” for insurance purposes if they (i.e. the claimant) entered into the marriage in good faith.
In this context, good faith refers to the honest, sincere belief that the marriage is valid. Practically speaking, if a claimant genuinely believed they were lawfully married, and there was no fraudulent intent, he or she may still qualify as a “spouse” even the marriage is later annulled by a court. Consider the example of an individual who unknowingly married someone who was still married to someone else (e.g. where someone’s divorce to a prior partner was not final). Even though the marriage would be considered void due to bigamy, that individual could still be considered a “spouse” under section 224(1) if there was no reason to suspect the other marriage still existed.
Evidently, this good faith requirement acts as a “saving provision” to protect individuals who, through no fault of their own, enter marriages whose validity can be challenged.
Definition #2 in the Case Law
Recall from Part One of this series that, according to section 268(2) of the Act, spousal status – regardless of by which definition – can put an insurer at the top of the priority scheme and first in line to handle a claimant’s AB claim. Whether a claimant is a “spouse” is therefore a common issue in priority disputes between insurers.
Cases specifically dealing with definition #2 are not as abundant as those dealing with definitions #1 and #3. However, the following examples emphasize that the central question on which these cases hinge is whether the claimant in a void or voidable marriage can establish that they entered the marriage in good faith.
Aviva v. Security National (2016)
This case centered on whether the claimant was a “spouse” as a result of a religious ceremony performed in his country of origin. The arbitrator found that the ceremony did not comply with the Marriage Act requirements as little information was presented about the nature of the ceremony performed (e.g. when it took place, under what civil or religious laws it was conducted, the number of attendees, the dress or garb worn during the ceremony, etc.).
Arbitrator Bialkowski considered whether, despite the failure to meet the requirements, there was a good faith intention on the part of the claimant to enter a valid marriage. After all, those who have participated in foreign marriage ceremonies cannot be expected to know the requirements of the Marriage Act. However, in this case, there was no evidence as to why the parties never registered their purported marriage or took steps to have it recognized in Ontario after moving to Canada. As such, the arbitrator found that there was no good faith intention to enter into a valid marriage.
Intact v. Dominion (2019)
In this case, the claimant and his partner had participated in a commitment ceremony, as his partner remained married to her ex-spouse; her divorce had not been finalized. The evidence indicated that they both acknowledged that they could not be legally married until that divorce was finalized. They simply held a commitment ceremony to demonstrate that they wished to be together and to be recognized by their family and friends to be in a committed relationship. They knew their ceremony was not a marriage in accordance with the Marriage Act.
The arbitrator concluded that the parties were not spouses according to definition #2 of section 224(1). Their ceremony did not meet the formal requirements of a legally valid marriage, and they also lacked the requisite belief that they were getting legally married and complying with the Marriage Act.
Conclusion & Key Takeaways
Understanding what it means to “have entered into a marriage that is voidable or void in good faith” is crucial for insurance professionals tasked with investigating priority and resolving priority disputes. When questions about the validity of a marriage arise, especially in multi-jurisdictional settings (as in Aviva above) or in cases where a spouse had a complex marital history (as in Intact above), insurers should focus on the element of good faith: Does the evidence suggest that the claimant genuinely believed the union was valid, or did they enter the invalid union knowingly?
A well-documented investigation not just about the validity of the claimant’s marriage but the claimant’s belief in the validity of their marriage can help insurers make informed coverage decisions and avoid unnecessary litigation. A thorough investigation should include the following:
- Obtain marriage certificates and other documents. Request the official marriage certificate and any court records related to annulment or divorce. If the marriage was declared void or voidable, obtain the legal basis for that determination.
- Assess the claimant’s knowledge and intent. Conduct interviews to establish whether the claimant genuinely believed the marriage was valid. Ask whether they were aware of any legal barriers (e.g. prior marriages, misrepresentations to immigration authorities, incomplete divorce proceedings). Financial and tax records indicating joint finances may also corroborate the belief in a valid marriage.
- Investigate the other’s party’s legal status. If bigamy is suspected, verify whether the spouse was still legally married at the time of the wedding. Check for any prior legal challenges to the marriage.
- Consider the length and nature of the relationship. Evidence that the couple lived together as spouses may support a finding of good faith. Review financial records, joint property ownership, and other indicators of a genuine marital relationship.
- Consider the case law. Prior decisions can provide guidance on how the courts and arbitrators have interpreted “good faith” in similar disputes.
Don’t miss the final part of this series, which will examine the last definition of “spouse” in section 224(1): common law relationships and those with a child in common. Coming soon!
See Aviva Insurance Company of Canada v. Security National (2016) (Arbitrator K. Bialkowski).
See also Intact Insurance Company v. The Dominion of Canada General Insurance and Wawanesa Mutual Insurance Company (2019) (Arbitrator P. Samworth).
