Common law applies “in accordance with cultural norms” of parties seeking annulment: court
The British Columbia Court of Appeal allowed annulment of the marriage on the grounds that the union was not consummated, stressing the “role that an honest and sincere religious belief can play in determining incapacity. “.
In Kaur vs. Singh, 2021 BCCA 320, the court heard that the appellant, Prabhjot Kaur, had met her spouse, the respondent, Gurvinder Partap Singh, at Selkirk College, where they were both students.
According to court documents, the two “decided to get married and did so in a civil ceremony held on February 6, 2019”.
“Their plan,” said the appellant, was “to delay the consummation of the marriage until after the Sikh religious ceremony which they planned to undergo later, in accordance with their tradition.”
Kaur explained that the couple “wanted to get married in a civil ceremony so that they could live together, which would be against their religion, but postponed the consumption until they had undergone a traditional Gurdwara ceremony.”
According to court documents, the couple lived in the same house, which they shared with friends, but they lived “separately”. The appellant testified that the relationship was in trouble and that the couple would have “a lot of arguments”.
The marriage was still not consummated when the appellant left the house. “It was effectively the end of the relationship,” the court noted.
Kaur asked for “a declaration annulling her civil marriage with the respondent” citing “non-consummation” as a reason. However, Justice J. Miriam Gropper of the British Columbia Supreme Court dismissed the motion.
According to court documents, Justice Gropper “accepted that there was no consummation of the marriage, but found that the parties had failed to meet the common law requirement of non-consummation resulting from a physical or psychological disability ”.
On appeal, Kaur argued that Gropper J. erred in failing to “give proper weight to the appellant’s belief in the necessity of a Sikh Gurdwara ceremony prior to consumption”; by failing to “take into consideration the consent of the respondent; ”And“ by concluding that there was no psychological disability ”.
Justice J. Christopher Grauer, writing for the Court of Appeal, noted that “the founding Canadian decision on annulment is Heil vs. Heil,  RCS 160.
“Although seminal, it must be recognized as reflecting notions of gender roles which are now outdated,” he said.
In Heil, explained Judge Grauer, the Supreme Court ruled that: “The simple refusal of a woman to have marital relations because of her whim is not a sufficient reason to justify a judgment of nullity of the marriage; there must be some disability, which in some cases is a structural defect, but in some cases may result from a mental state creating an invincible aversion to the physical act of consuming. Such a mental state can be inferred from the proven facts, and justifies a decree of annulment of marriage.
“Heil settled the law, “he noted,” and set out the test for granting an annulment order: there must be some disability, “which in some cases is a structural defect, but which can also result from a mental disorder. condition, with the effect of creating in the mind of the woman an aversion to the physical act of consumption. “
The judge acknowledged that the British Columbia Court of Appeal “upheld the Heil test in Juretic vs. Ruiz, 1999 BCCA 417, and in KHL vs. GQL, 2003 BCCA 313.
However, Judge Grauer wrote, “in the multicultural society reflected in our nation, the common law principles at issue here must be applied contextually, in accordance with the cultural norms of the parties seeking annulment.”
“This has been explored in Jomha [v. Jomaa 2010 ABQB 135], “he added.” I consider that a psychological disability consistent with the principles discussed in these cases can arise as significantly from sincere religious and cultural beliefs as other forms of psychological aversion, both of which are, contextually, a ” normal and predictable reaction ‘as discussed in Grewal [v. Sohal 2004 BCSC 1549]. “
“In this case, IMHO, the judge focused too much on the physical and psychological aspects of capacity in the traditional sense discussed in the cases. In this way, she did not fully appreciate, as we now must, the role that an honest and sincere religious belief can play in the determination of incapacity, ”said Judge Grauer.
The judge determined that the evidence “established that the parties’ decisions on how to manage their relationship were based on religious and cultural considerations.”
“They wanted to live together, but according to their cultural norms, they couldn’t do it without ceremony. Hence the civil ceremony. But once living together, they could not consummate the marriage in accordance with their religion until they underwent the traditional Sikh Gurdwara ceremony, and therefore did not consummate it. Although they had other reasons, including avoiding pregnancy, these did not require non-use. The real aversion to consumption arose from their religious beliefs, creating a real incapacity, ”he added.
Judge Grauer also pointed out that “it would have been useful for the judge, and would be useful for such cases in the future, to have more precise evidence concerning the cultural and religious norms of the parties and, above all, the manner and the extent to which these norms impacted the non-consummation of marriage.
“The applicant for annulment based on a psychological inability to consume, whether based on a sincere religious belief or otherwise, must establish a disability on the balance of probabilities,” he noted.
Judge Grauer, with the consent of Justices Peter Willcock and Joyce DeWitt-Van Oosten, decided to allow the appeal and annulled the marriage in a decision released on August 27.
Georgialee Lang, Independent Family Lawyer
Georgialee Lang, a freelance family law practitioner in Vancouver, said her first impression was that the BC Supreme Court chambers judge “was applying the law correctly.”
“Although these cases are relatively rare, it is clear that this decision is important,” she said, noting that the Court of Appeal “advanced the law to include religious and cultural beliefs as factors that shape an individual’s emotional and psychological mind and spirit.
“As the [British Columbia Court of Appeal] identified, the aversion to wholeness stemmed from the appellant’s religious beliefs, and the court recognized the powerful role that religion plays in the lives of those who are committed to the tenets of their faith. I think this case may have implications for other areas of law where arguments based on faith and culture are at play, ”she added.
Ari Wormeli, family lawyer and partner at YLaw in Vancouver, believes that “this decision is actually going to affect fewer people than it looks.”
“While the step of viewing a conscious and voluntarily assumed impediment (adherence to a set of religious principles) as ‘invincible aversion’ in the same way as, for example, the inability to achieve an erection unconsciously and unintentionally caused by psychological trauma could be considered a significant change, and although I am not an expert on religions or other philosophies, note that this was based on very narrow grounds and likely will not have wide application , at least not as it is, ”he explained.
“This is because when a lot of people get married, they have the religious ceremony around the same time,” Wormeli added, noting that “in this case, it didn’t happen”.
As an example, Wormeli explained that “if a Catholic person says, ‘No sex before marriage’ and then marries in a church ceremony, they will not be able to avail themselves of this new decision. because his religious principles are no longer an obstacle. “
“In terms of lessons for lawyers, it is that unusual bets sometimes pay off in terms of widening the eyes of the courts,” he added, noting that “it is conceivable in the future that this voluntary assumption of involuntary principles (i.e., you can choose to be a Jew, and in particular an Orthodox Jew, in which case wearing the kippah becomes obligatory if you are male) can be used to open again plus the door.
“If you see an angle of attack that has not been tried (especially a legal argument, where the standard is fairness and you don’t have to worry about deference) and you have a client who is ready to take that risk, go for that, ”he said.
Regarding takeaways in the future, Wormeli said “the question would be: if my client doesn’t fit into what I’ll call the ‘traditional’ cancellation categories, but wants everything Likewise a cancellation, you might delve into how your client’s reasons for not consummating the relationship might equate to the voluntary assumption of a previously dictated set of principles.
“In order to be really careful, if possible, expert evidence could be presented (from a religious leader or possibly a professor of philosophy) regarding the requirement for followers of a certain belief system to follow certain restrictions, ”he added.
Counsel for the appellant did not respond to the request for comment. The respondent represented himself on appeal.
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