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The court granted an annulment, finding the marriage was a nullity because religiously grounded psychological incapacity made consummation practically impossible.
The Court of Appeal allowed an annulment appeal, holding that a sincere religious belief requiring a Sikh Gurdwara ceremony before consummation could amount to psychological incapacity.
The Supreme Court of British Columbia dismissed an application to annul a marriage for non-consummation, finding no physical or psychological incapacity, only a mutual decision not to consummate.
The Court held that the Huang/Hengeveld indicators are the appropriate objective indicia for s.7(1)(a); the motion judge improperly relied on a vague notion of 'psychological strength' and materially misapprehended the evidence; when the record is weighed (including contemporaneous hospital and Board materials and expert evidence) the claimant did not prove incapacity to commence proceedings until December 2, 2009; therefore the two-year limitation ran and the action is statute-barred, so summary judgment dismissing the action was ordered.
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The court held that the 22-year-old daughter remained a child of the marriage under the Divorce Act, applying the Farden factors to her education and support needs.
The court construed s.2(5) conjunctively: the limitation period is postponed until the victim is both aware of the injury and the causal link to the sexual abuse and is reasonably capable of commencing proceedings as a result of not being disabled by the abuse. Applying that standard, the plaintiff was capable and had sufficient disclosure in 1996 as to the office fondling incident so the limitation defence succeeds for that incident; however the plaintiff did not discover the causal link nor attain capacity to disclose the highly invasive home incident until 2006, and the action was commence…
Source excerpt
The application to reopen was refused because the applicant failed to establish any breach of natural justice: there was no evidence or complaint supporting alleged counsel misconduct, the psychological diagnosis did not explain or excuse the deliberate failure to notify the Board of a change of address, and the evidence showed the applicant was capable of taking procedural steps; therefore the RPD correctly declined to reopen the abandoned claim.
Source excerpt
The court granted a declaration of nullity where a marriage was never consummated and the plaintiff proved practical impossibility of consummation arising from deception and psychological repugnance.
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