The Opportunities and Challenges of Applying Common Law Principles to a Multicultural Nation – Family and Marriage
Canada: The opportunities and challenges of applying common law principles to a multicultural nation
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The common law legal system builds on itself, with higher courts setting a precedent for lower courts and so on. As society evolves, so does the common law, but some traditional legal tests remain in place long after societal norms have advanced. This can cause problems when trying to apply traditional legal tests to modern society. A recent decision of the British Columbia Court of Appeal, Kaur vs. Singh 1, demonstrates the importance of the contextual application of traditional common law principles in a multicultural nation.
The appellant, Ms. Kaur, and the respondent, Mr. Singh, celebrated a civil marriage on February 6, 2019 so that the parties began to live together. Their plan was to delay the consummation of the marriage until after their traditional Gurdwara ceremony, in accordance with the Sikh religion. While living together, the relationship became difficult and the sanity of the parties declined. The relationship ended, and Kaur made an unchallenged request to have the civil marriage annulled for non-consummation. The lower court dismissed the petition, stating that the parties had failed the required legal test as they both agreed that there was no physical, physiological or psychological reason not to consummate the marriage.2. Ms. Kaur appealed.
The Court of Appeal: A Contextual Approach to Traditional Legal Principles
The Honorable Justice Grauer reviewed the nearly 80-year-old Supreme Court of Canada decision in Heil vs. Heil 3, which is still authoritative for the principle according to which, in order to obtain the cancellation for non-consumption, it is necessary to provide proof of some incapacity, “which is in certain cases a structural defect, but which can also result from a condition, with the effect of creating in the mind of the [individual] an aversion to the physical act of consumption “4. Contemporary jurisprudence has clarified that there must be a real incapacity which is not “a mere capricious refusal”5, and this incapacity may be the result of impotence or other disabilities that are physical, or of a psychological and emotional nature.
The Court concluded that the common law principles in Kaurrequired a contextual application to reflect the multicultural society in which we live. A sincere religious and cultural belief can be regarded as a psychological incapacity in accordance with the evolution of legal principles 6to justify the cancellation. The evidence established that the management of the relationship was based on the religious and cultural considerations of the parties. The Court found that “[t]The real aversion to consumption arose out of their religious beliefs, creating a real incapacity “7. The lower court did not sufficiently take into account that the parties’ agreement to abstain reflected an underlying aversion to consumption before completing the traditional Sikh Gurdwara ceremony – and that “[t]his belief pre-existed the interpersonal struggles between the parties “8.
Importantly, the Court advised any future party to present evidence of distinct cultural and religious norms where those norms may influence and impact the conduct of the parties. A diverse understanding of religion and respective practices can be helpful for a judge and educational for those who adjudicate similar cases afterwards.
1 Kaur v. Singh, 2021 BCCA 320 [Kair].
2 Same as 8.
3 Heil v. Heil,  RCS 160 [Heil].
4 Ibid. p. 163.
5 Kaur, supra note 1 to 16.
6 See generally Jomha v. Jomaa, 2010 ABQB 135; Grewal v. Sohal, 2004 BCSC 1549.
7 Kaur, supra note 1 to 20.
8 Kaur, supra note 1 to 24.
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