R.K.S. v. R.S.

2014 BCSC 1626 R.K.S. v. R.S.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R.K.S. v. R.S., 2014 BCSC 1626 Date: 20140826 Docket: 154215 Registry: New Westminster Between: R.K.S. Plaintiff And R.S. Defendant - and - Docket: E044890 Registry: New Westminster Between: R.S. Claimant And R.K.S. Respondent Before: The Honourable Mr. Justice Ehrcke Reasons for Judgment Counsel for Plaintiff/Defendant: R.K. Khunkhun Counsel for the Defendant/Plaintiff: P. Cote Place and Date of Trial: New Westminster, B.C. August 11-15, 18, 2014 Place and Date of Judgment: New Westminster, B.C. August 26, 2014

INTRODUCTION [1] Ms. R.K.S. and Mr. R.S. were married on August 25, 2012. They are both originally from India and moved to Canada, and their marriage was arranged in Canada by their respective families. [2] Ms. R.K.S. moved out of the matrimonial home on June 29, 2013, and she takes the position that that is the date of their separation. Mr. R.S. takes the position that they were separated as of December 30, 2012. [3] On August 22, 2013 Ms. R.K.S. filed a notice of civil claim under number 154215 seeking an annulment of the marriage and damages. She claims that the marriage was never consummated and that Mr. R.S. deceived her about his character and his sexuality. She claims that she discovered him engaging in a homosexual relationship with a young man who lived in their home. Mr. R.S. denies these allegations. [4] On September 9, 2013, Mr. R.S. filed a notice of family claim under number E044890 seeking a divorce and restraining orders to prevent Ms. R.K.S. and her family from making defamatory and false statements about him and his sexuality. [5] On October 16, 2013, the two proceedings were ordered by consent to be consolidated, and accordingly, I have heard the trial of these two actions together. [6] Although Ms. R.K.S. was the plaintiff on the civil proceeding and the respondent on the family claim, I shall for convenience refer to her throughout these reasons as the plaintiff. Similarly, I shall refer to Mr. R.S. as the defendant, although he was the claimant in the family claim.

ISSUES [7] Neither party seeks any corollary relief under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) or the Family Law Act, S.B.C. 2011, c.

25. Neither party has asked for spousal support or for a division of family property. [8] During the trial, Mr. R.S. stated that he is withdrawing his claim for restraining orders, and he now seeks only a divorce and costs. He said he just wants to get on with his life. [9] Accordingly, the only issues for determination are first, whether Ms. R.K.S. has established on a balance of probabilities that the requirements for an annulment have been proven; second, if there is no annulment, whether there should be a divorce; third, whether Mr. R.S. has unlawfully retained some of Ms. R.K.S.'s property and should be ordered either to return it or pay her compensation; and fourth, whether Ms. R.K.S. is entitled to special damages for the costs associated with the wedding and to "non-pecuniary, punitive and aggravated damages for hurt feelings, humiliation, inconvenience and postponement of the opportunity to marry another man while she was still capable of bearing children."

THE EVIDENCE [10] Three witnesses testified for the plaintiff: the plaintiff herself, Ms. R.K.S.; her eldest sister, and her sister's husband, that is, the plaintiff's brother-in-law. The only witness for the defendant was the defendant himself, Mr. R.S. [11] A number of exhibits were also filed, including a printout of the complete string of cell phone text messages between the plaintiff and the defendant, which commenced on July 17, 2012, and ended on September 9, 2013. [12] I do not intend to summarize the evidence of every witness in detail. The parties were in attendance throughout the trial and are well aware of the evidence that was led. I shall confine myself in these reasons to setting out my findings of fact based on all of the evidence that was adduced at trial.

FACTS [13] The plaintiff was born in India and received her education there. She came to Canada with her family in the fall of 2011. She was 27 years old at the time. [14] The defendant is about five years older than the plaintiff. He is also from India. He has his own business as an immigration consultant, with an office in Surrey, British Columbia. He shares that office space with an insurance agent and an accountant. [15] The plaintiff and her family decided it was time for her to marry, and so, in May and again in June, 2012, they placed an advertisement in a Punjabi newspaper, to which the defendant's family replied. The defendant's cousin, acted as matchmaker, and there were communications between the two families, largely through her. [16] The plaintiff's family met with the defendant in his office in June 2012, without the plaintiff. The defendant told the plaintiff's family that he was, at that time, 32 years old and was ready to settle down with a "homely girl", which everyone understood to mean, a girl who would look after the home and the family. [17] On July 7, 2012, there was a meeting of members of the two families at a Starbucks coffee shop on 72nd Avenue in Surrey. During this meeting, the plaintiff and the defendant met each other for the first time and spent about 15 minutes by themselves chatting alone. The plaintiff testified that the defendant provided

details of his education and employment background, and he told her he had worked very hard in his life to reach the point where he could settle down with a homely wife. [18] The engagement ceremony was set for July 22, 2012. A few days before, the matchmaker called and informed the plaintiff and her family that the defendant had been previously married and divorced. It was explained that his previous wife had only married him for immigration purposes, and he was an innocent victim. The plaintiff's family verified this information to their satisfaction with someone in India, and they decided to proceed with the marriage. The engagement party went ahead as scheduled on July 22, 2012. [19] There were then discussions about the wedding date. In order to accommodate the fact that the defendant's parents were temporarily in Canada but were going to leave at the end of the summer, it was agreed that the wedding would take place on August 25. [20] The parties were married at a traditional Sikh wedding on August 25, 2012. At and around the time of the wedding, various gifts were exchanged, including gold jewellery and clothing. [21] From this point on, there is a significant divergence between the evidence of the plaintiff and the evidence of the defendant. [22] The plaintiff testified that a short time after the wedding, she spoke to the defendant about his previous marriage, and he

told her that his previous wife had had an abortion. He said this was because she had become pregnant by another man. The defendant in his testimony agreed that there was such a conversation, but he said it occurred before they were married. In my view, nothing turns on whether this conversation took place before or after the wedding. It cannot reasonably be maintained that this is something that the defendant had a duty to disclose prior to marrying the plaintiff. [23] The plaintiff testified that after the wedding, the defendant tried on three occasions to consummate the marriage, but all the attempts were unsuccessful. According to the plaintiff, the defendant told her that as it was an arranged marriage, he needed time to get to know her better. She testified that after that, she did everything she could to try to make herself attractive to him, because she wanted to consummate the marriage. She testified that despite her efforts, the marriage was never consummated. [24] The defendant testified that the plaintiff's evidence was untrue. He said that they consummated the marriage many times, and that during the first few months, they had sex three or four times a week. He said, however, that it gradually became clear that they simply "didn't click". He testified that the last time they had sex was in the first or second week of December, and that by December 30, 2012, he told

her that the marriage was over. He told her that he wanted to give her time to gradually leave, and so they continued living together in his house for the next several months, although they never again slept in the same room. [25] He said that she continued to want to have sex with him after that, but he was not interested. He referred to various text messages in which she asked him to come to her room in the middle of the night. For example, on May 12, 2013 at 11:30 p.m., she texted him, "I appreciate....thanks....light is off but I am not sleeping Nice husband". Again, on June 23, 2013 at 11:52 p.m. she wrote, "u can come to our room or I can come to ur room for few mins?" In her testimony, the plaintiff denied that she intended these messages as invitations to have sex. [26] The plaintiff testified that although at the beginning of the marriage, she and the defendant slept together in the master bedroom, gradually he began sleeping elsewhere on more and more nights. She said that he often slept in the bedroom used by a 20-year-old friend of the defendant, J.H., who lived in their house. The defendant told her that he was simply a friend and that they should treat him like a little brother. [27] The plaintiff testified that this went on for several months without her having any suspicion that there was anything untoward. She said she accepted the defendant's explanation that

he often came home late from work and did not want to disturb her sleep. She testified that sometimes in the morning, the defendant's parents would ask her where the defendant had slept that night, but again, she said this did not make her suspicious because she accepted the defendant's explanations. [28] The plaintiff testified that this changed in the spring of 2013. She testified that at the end of April, she was cleaning J.H.'s room when she noticed three bottles labelled "Captain Rush". She said she checked on the Internet and came to believe that this was something used by gay persons for sex. She said she asked the defendant if he was gay. According to her testimony, he said, "If you think, then maybe I am. If I am gay, then J.H. will be." She testified that from this point on, she knew that the marriage was over, but after speaking with her sister in the United States, she was not sure anyone would believe her, and she continued to live with the defendant while trying to find a safe way to leave the marriage. She said she was worried about her reputation. [29] The plaintiff testified that in the early morning hours of June 29, 2013, she heard noises coming from J.H.'s bedroom. She opened the door and saw the defendant and J.H. engaged in a sexual act. [30] She said that later that morning, the defendant approached her and said, "I thought you already knew that I was

gay." He told her she should not tell anyone what she had seen. She requested a divorce, and he said they could cancel the marriage. He offered to pay the down payment on an apartment for her. She left the house and told her family everything. [31] The defendant in his testimony denies that he ever had a homosexual relationship with J.H. He testified that he and J.H. knew each other from India and used to play together. He said that J.H.'s father helped him for a year when he was a student in India. When J.H. came to Canada, he did not know anyone, and at the request of J.H.'s mother, he agreed to let him rent a room in his house. [32] The defendant testified that he never spent the night in J.H.'s room, and he never discussed with his parents what room he was sleeping in. He said that J.H. was going to Kwantlen University, and then he started working as his office manager in August 2012. [33] The defendant testified that he and the plaintiff never had a conversation about sleeping in J.H.'s room, and he denied ever telling the plaintiff or her family that he was gay. [34] All the witnesses agree that on June 29, the defendant sent a text message to the plaintiff's brother-in-law, inviting the plaintiff's family to a meeting at the defendant's office. When they met there, the plaintiff's sister started shouting that the defendant should confess that he was gay. The defendant

asked her to leave his office, and the conversation continued between the defendant and the plaintiff's brother-in-law. According to the brother-in-law's testimony, the defendant confessed that he was gay. The defendant in his testimony denies this. He testified that he was very upset that the plaintiff's family would come to his office, which was essentially a public place with other people around, and make such unfounded accusations. [35] The plaintiff had not been at that meeting. She was visiting the defendant's father in the hospital. Later in the day, she went back to the house and spoke with the defendant. She then left, taking only her computer and some books, because she was going to school at the time. [36] She next saw the defendant on July 7, 2013, when the families met at the house to try to settle the matter. The meeting ended with no resolution. According to the plaintiff, she wanted to get her belongings, but the defendant asked her to sign a paper acknowledging that she had taken her things. She refused, and she left without taking anything. [37] The police became involved when the defendant complained about being threatened by the plaintiff's family. The defendant did not, in the end, press charges. On July 22, 2013, the police went to the plaintiff's family to talk to them. The plaintiff then asked the police to accompany her to the defendant's house to

retrieve her belongings. The defendant was not present when they arrived. The plaintiff testified that she looked for her things, but they were not there, except for two dresses that she retrieved from the laundry room. [38] The plaintiff says that she believes the defendant still has her belongings. The defendant testified that he does not have any of her things, and that she removed them from his house.

ANNULMENT [39] The first issue to be decided is whether there should be an annulment of the marriage, as requested by the plaintiff. [40] In Canada, to obtain an annulment, it is not enough to establish that the marriage has not been consummated. As Wood J. noted in C. v. C., [1948] 1 W.W.R. 270 (B.C.S.C.): Since 1938 a marriage is now voidable in England on the ground that the marriage has not been consummated owing to the wilful refusal of the respondent--Matrimonial Causes Act, 1937, ch.

57. But there is no such statutory provision in British Columbia. [41] The test for an annulment in Canada was discussed in Heil v. Heil, [1942] S.C.R.

160. As the Court noted, the applicant for an annulment must show there is an incapacity of some kind which goes beyond a mere refusal to have intercourse: The mere refusal of marital intercourse due to caprice is not a sufficient ground to warrant a decree in nullity. The earlier decision, Dickinson v. Dickinson [L.R. [1913] P. 198.], which held that persistent refusal was a legal ground for a decree, is overruled, and it is now settled that there must be an 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 woman an aversion to the physical act of consummation. In Napier v. Napier [L.R. [1915] P. 184, at 193.] it was held:-- It is true that in recent times the Court has not always required proof of an actual structural defect as evidence of incapacity, but has considered itself at liberty to infer from the conduct of the parties or one of them an incapacity arising from some abnormal condition of mind or body. ... The latest pronouncement on the matter is a decision of the House of Lords in the case of G. v. G. [[1924] A.C. 349.], where it was held that the conclusion to be drawn from the evidence was that the wife's refusal was due, not to obstinacy or caprice, but to an invincible repugnance to the act of consummation, resulting in a paralysis of

the will which was consistent only with incapacity, and that the husband was entitled to a decree of nullity. The words of Lord Phillimore are as follows:-- The evidence here seems to me to prove "invincible repugnance", "invincible" in the full sense of an unconquerable, uncontrollable nervous condition which is physical and which creates nullity. [42] The law as articulated in Heil has been repeatedly affirmed by the British Columbia Court of Appeal: see Juretic v. Ruiz, 1999 BCCA 417; and K.H.L v. G.Q.L., 2003 BCCA 313. In order to obtain an annulment in Canada, the applicant must prove both that the marriage was never consummated, and that consummation is a practical impossibility due to either a physical incapacity or a mental incapacity of one of the parties amounting to an invincible aversion to the physical act of consummation. Refusal due to obstinacy or caprice is not sufficient. [43] The parties have referred me to several trial decisions of this Court, but they are simply applications of the law to the particular facts of a given case. I accept that the law is as articulated by the Supreme Court of Canada. [44] In the present case, the plaintiff does not allege that the defendant has either a physical or a mental incapacity that makes consummation a practical impossibility. Rather, her position is that she now feels an aversion to the defendant, based on her alleged

discovery of his deceit about his sexuality, which makes it impossible for her to have intercourse with him. Thus, she bases her application on her own alleged incapacity to engage in intercourse with the defendant. [45] On the evidence before me, I have serious doubts about whether the plaintiff is incapable of consummating the marriage with the defendant. I do not accept that her refusal to consummate the marriage is due to an "invincible aversion" as opposed to obstinacy: see J.G. v. S.S.S., 2004 BCSC 1549 at para. 61. [46] In any event, there is an even more fundamental reason why the application for an annulment must be refused. I am unable to find, on a balance of probabilities, that the marriage was not, in fact, consummated. [47] As the claim for an annulment was opposed by the defendant, the onus is on the plaintiff. She testified that the marriage was never consummated. He testified that it was consummated on, perhaps, fifty occasions. There was no medical or other evidence to confirm the truth of one story over the other. I am left with a simple, "he said" versus "she said" situation. I find that the plaintiff has not satisfied the onus on her of proving non-consummation on a balance of probabilities. [48] Accordingly, the claim for an annulment of the marriage is dismissed.

DIVORCE [49] Mr. R.S. has applied for a divorce. He filed the certificate of marriage, proving that the parties were married on August 22, 2013. He also filed the certificate of pleadings. The evidence establishes that the parties have lived separate and apart since June 29, 2013, which is a period in excess of one year. Mr. R.S. testified that there has been no collusion, and that there is no reasonable prospect of reconciliation. The requirements of the Divorce Act being satisfied, the parties shall be divorced from each other, effective 31 days from the date of this order.

COMPENSATION [50] Ms. R.K.S. claims that Mr. R.S. has unlawfully retained some of her property. She seeks an order that he either return it to her or pay her compensation. [51] The testimony of the parties is diametrically opposed on the factual issue of whether or not the defendant has any of the plaintiff's belongings in his possession. I note that the text messages between them are capable of being interpreted to mean that they each have already gotten their own jewellery back. On June 28, 2013 at 11:53 a.m., the plaintiff wrote, "Bring my all jewelry today We will talk tonyt (sic)". He replied, "Bring mine as well." She then wrote at 12:21 p.m., "I already got it." [52] The onus is on the plaintiff to prove on a balance of probabilities that the defendant has unlawfully prevented her from having possession of her belongings. I find that she has not satisfied that onus.

DAMAGES [53] Ms. R.K.S. claims that she entered into the marriage based on false representations by Mr. R.S., and that she is entitled to damages as a result. She claims special damages for the costs associated with the wedding and "non-pecuniary, punitive and aggravated damages for hurt feelings, humiliation, inconvenience and postponement of the opportunity to marry another man while she was still capable of bearing children." [54] As to the last part of that claim, I note that there is no evidence that Ms. R.K.S. is now at or close to the end of her possible child-bearing years. Nevertheless, her entering into the marriage with the defendant has delayed by over a year the possibility of her marrying someone else. As well, there is no question but that the plaintiff and her family spent a considerable amount of money on the wedding, including costs of catering, clothing, and the expense of gifts for many people. [55] As well, I do not doubt that Ms. R.K.S. has experienced hurt feelings, inconvenience, and perhaps even humiliation, as a result of the breakdown of her marriage. [56] However, these are the predictable consequences of virtually every marriage breakdown. Normally, a party to a divorce proceeding neither seeks nor obtains compensation for these unhappy, but predictable, consequences of marrying someone who turns out not to be the partner one had hoped for. [57]

What Ms. R.K.S. says sets her case apart from most is her claim that she only married the defendant because of his deceit about his character and his sexuality. She relies on the decision of E.R.A. Edwards J. in Raju v. Kumar, 2006 BCSC 439. In that case, the four elements of the tort of deceit are set out at para. 69: [69] The four elements of the tort of deceit are: a false representation, knowledge of its falsity, an intent to deceive and reliance by the plaintiff with resulting damage. [58] On the evidence before me, I am satisfied that neither Mr. R.S. nor his family knowingly made any false representations to either the plaintiff or her family, with an intent to deceive the plaintiff into marrying him. [59] As the claim of Ms. R.K.S. is that she was induced into the marriage by the allegedly false representations, the only relevant representations are those made prior to the wedding. Obviously, she could not have been induced to marry by representations made after she was married. [60] Prior to the wedding, the plaintiff and her family asked many questions about the defendant's background, his education, his financial situation, and the kind of woman his was looking to marry. I have no reason to believe that any of his representations were false. After the marriage, he provided well for the plaintiff, did not ask her to earn money outside of the home, and by all accounts,

he treated her well. [61] Nevertheless, the plaintiff maintains that he deceived her about his character and sexuality. It is not clear precisely what the plaintiff means by the vague phrase "character and sexuality", but if it has anything to do with the allegation that the marriage was not consummated, the claim must fail, because I have already found that the plaintiff has not proven that the marriage was not consummated. [62] If the claim of Ms. R.K.S. is based on the suggestion that Mr. R.S. is gay, the claim again must fail. I say this for two reasons. First, Mr. R.S. never made any representations, prior to the wedding, about his sexual orientation. Second, I am unable to find, on the evidence before me, that anything has been proven about what Mr. R.S.'s sexual orientation actually is. In his testimony, he vehemently denied that he was gay. I have no reason to doubt his testimony. I do not accept the evidence of the plaintiff and her family that he at any time admitted to them that he was gay. [63] On the contrary, there is some circumstantial evidence that his denial in court ought to be accepted. I have in mind the meeting, in his office, at the end of June. This was a meeting that was initiated by the defendant himself. He sent a text to the plaintiff's brother-in-law, suggesting that they meet at his office. [64] According to the testimony of the plaintiff, this

meeting occurred shortly after she discovered the defendant having sex with J.H. If, indeed, the defendant was "caught in the act" and therefore knew that the plaintiff was aware of his being gay, it would make no sense for him to invite her family to a meeting in his office to discuss the matter. The evidence is that at the time of the meeting, this was essentially a public place. The others that he shared the office with were at the office. As the meeting progressed, the plaintiff's sister shouted her allegations that he was gay for all to hear. If Mr. R.S. had indeed been involved in a homosexual relationship with J.H. and had been found out by Ms. R.K.S., as the plaintiff alleges, he would have known that calling a meeting at his office would likely result in such allegations being shouted out by her family. His evidence is that he was taken by surprise and upset at these allegations. I believe his testimony in this regard, because otherwise, it would have been folly for him to call that meeting in his own office, where others would undoubtedly witness the unseemly scene. [65] For these reasons, I conclude that the plaintiff was not induced to marry the defendant by any false representations knowingly made by him or his family. The plaintiff has failed to establish any basis for the tort of deceit, and her claim for damages is dismissed.

CONCLUSION [66] The claim for an annulment of the marriage is dismissed. [67] The application for a divorce is granted. The parties shall be divorced from each other, effective 31 days from the date of this order. [68] The claim of Ms. R.K.S. for return of her property or for compensation in lieu of return is dismissed. [69] All claims of Ms. R.K.S. for damages are dismissed. [70] The claims of Mr. R.S. for restraining orders are withdrawn. [71] Mr. R.S. is entitled to his costs and disbursements on scale B. The Honourable Mr. Justice W.F. Ehrcke