The Opportunities and Challenges of Applying Common Law Principles to a Multicultural Nation

Silhouette of a couple walking away from each other at sunset

By Chantal M. Cattermole and Kim Brown

The common law legal system builds upon itself, with the higher courts setting precedent for the lower courts and so on. As society evolves, so too does the common law, but some traditional legal tests remain in place long after societal norms have progressed. This can pose challenges when trying to apply traditional legal tests to modern society. A recent decision of the BC Court of Appeal, Kaur v. Singh [1], demonstrates the importance of applying traditional common law principles contextually in a multicultural nation.

The appellant, Ms. Kaur, and the respondent, Mr. Singh, had a civil marriage ceremony on February 6, 2019, in order for the parties to begin living together. Their plan was to delay the consummation of the marriage until after their traditional Gurdwara ceremony, in accordance with Sikh religion. Upon living together, the relationship became difficult and the parties’ mental health declined. The relationship ended and Kaur made an uncontested application to have the civil marriage annulled on the ground of non-consummation. The lower court dismissed the petition, stating the parties failed to meet the requisite legal test as they had both agreed there were no physical, physiological or psychological reasons to not consummating the marriage [2]. Ms. Kaur appealed.

The Court of Appeal: A Contextual Approach to Traditional Legal Principles

The Honourable Mr. Justice Grauer reviewed the almost 80-year-old decision of the Supreme Court of Canada in Heil v. Heil [3], which remains authority for the principle that in order to be granted an annulment for non-consummation, the evidence must be adduced as to incapacity of some kind, “which in certain cases is a structural defect, but which may also arise out of mental condition, with the resulting effect of creating in the mind of the [individual] an aversion to the physical act of consummation” [4]. Contemporary case law has clarified there must be a real incapacity that is not “a mere capricious refusal” [5], and that incapacity may be a result of impotence or other physical disabilities, or psychological and emotional in nature.

The Court found the common law principles in Kaur required a contextual application in order to reflect the multicultural society in which we reside. A sincerely held religious and cultural belief may be considered a psychological incapacity consistent with evolving legal principles [6] to warrant annulment. The evidence established that the management of the relationship was based on the parties’ religious and cultural considerations. The Court found that “[t]he true aversion to consummation arose from their religious beliefs, creating a genuine incapacity” [7]. The lower court failed to give adequate consideration to the fact that the parties’ agreement to abstain reflected an underlying aversion to consummation before completing the traditional Sikh Gurdwara ceremony – and that “[t]his belief pre-existed the interpersonal struggles between the parties” [8].

It is important to note that the Court advised any future parties to introduce evidence of distinct cultural and religious norms where those norms may influence and impact parties’ conduct. A diverse understanding of religion and the respective practices can be helpful to a judge and educational for those adjudicating similar matters thereafter.

[1] Kaur v. Singh, 2021 BCCA 320 [Kair].
[2] Ibid at 8.
[3] Heil v. Heil, [1942] SCR 160 [Heil].
[4] Ibid at 163.
[5] Kaur, supra note 1 at 16.
[6] See generally Jomha v. Jomaa, 2010 ABQB 135; Grewal v. Sohal, 2004 BCSC 1549.
[7] Kaur, supra note 1 at 20.
[8] Kaur, supra note 1 at 24.