A-63-89
Minister of Employment and Immigration
(Appellant)
v.
Surinder Kaur Narwal (Respondent)
INDEXED AS: CANADA (MINISTER OF EMPLOYMENT AND
IMMIGRATION) V. NARWAL (CA.)
Court of Appeal, Marceau, Stone and MacGuigan
JJ.A.—Vancouver, April 2 and 6, 1990.
Immigration — Application for landing — Sponsorship by
spouse — Validity of marriage questioned — Choice of law —
Validity of marriage governed by law of parties' intended
matrimonial home.
Conflict of laws — Choice of law — Immigration —
Sponsored landing — Woman getting divorce then marrying
ex-husband's brother — Board erred in deciding validity of
marriage governed by law of India — Capacity governed by
law of parties' intended matrimonial home.
The respondent, a landed immigrant originally from India,
divorced her husband and later married his brother, a citizen of
India, in a civil ceremony in England. She then sponsored her
new husband's application for landing. During an interview
with an immigration officer, her husband denied that his
brother had been in any way related to the respondent. The
application was refused by an immigration officer. The Board
allowed the appeal from that decision. It found that the mar
riage was valid according to the laws of India, that the mar
riage had not been entered into for the purpose of gaining
admission to Canada as a member of the family class and that
the denial of any relationship with his brother constituted a
misrepresentation of a material fact justifying the immigration
officer's decision to refuse the application. Nevertheless, the
Board allowed the appeal on humanitarian grounds under
paragraph 79(2)(b) of the Act.
This is an appeal from the Board's decision on the ground
that the Board erred in finding that a valid marriage existed
under the laws of India. If there was no valid marriage, the
respondent's husband was not a member of the family class and
the Board was therefore without jurisdiction to grant special
relief on humanitarian grounds.
Held, the appeal should be dismissed.
Although the result is the same, the Board erred in deciding
that the substantial validity of the marriage had to be deter
mined by the laws of India rather than by the applicable laws
in Canada which contained no bar to the marriage between the
respondent and her divorced husband's brother. The theory that
capacity is to be governed by the law of the intended
matrimonial home of both parties, espoused by Cheshire in
Private International Law, should be adopted. In this case there
was sufficient evidence to support the finding that the couple
intended to establish their permanent residence in Canada. The
respondent's husband was therefore a member of the family
class and the Board possessed jurisdiction to grant the special
relief pursuant to subsection 79(2) of the Act.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Hindu Marriage Act, 1955, 1955, Act No. 25 (India), s.
5(iv).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 9(3),
79(1),(2) (as am. by S.C. 1986, c. 13, s. 6).
Immigration Regulations, 1978, SOR/78-172, s. 4(1)(a)
(as am. by SOR/84-140, s. 1), (3) (as enacted idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
Feiner v. Demkowicz (falsely called Feiner) (1973), 2
O.R. (2d) 121; 42 D.L.R. (3d) 165; 14 R.F.L. 27 (H.C.);
Gill, Ravinder Kaur v. M.E.I., I.A.B. 82-6270, 6/5/86.
REFERRED TO:
Kenward v. Kenward, [1951] P. 124 (C.A.).
AUTHORS CITED
Cheshire G. C. Private International Law, 9th ed.
London: Butterworths, 1974.
COUNSEL:
Esta Resnick for appellant.
Ujjal Dosanjh for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Dosanjh & Company, Vancouver, for
respondent.
These are the reasons for judgment of the
Court delivered orally in English by
STONE J.A.: The respondent landed in Canada
in 1983 as the fiancee of Jagpal Singh Narwal.
They were married in September of that year. The
couple separated a year later and on April 1, 1986
were divorced. The husband became estranged
from his father who, with his mother, were also
residents of Canada.
The husband's parents took the respondent into
their home and, after a time, she informed the
father of a desire to remarry. She was shown a
photograph of her former husband's brother,
Sukhwantjit Singh Narwal, who was domiciled in
India. Shortly afterward the respondent agreed to
marry the brother and travelled to London, Eng-
land where the intended husband was a visitor.
They were married there in a civil ceremony on
August 18, 1986 and lived together in England
until September 9 of that year. During this period
a child, born in Canada in May, 1987, was con
ceived. The husband returned to India two months
after the marriage and there filed on December
29, 1986 an application for permanent residence in
Canada. The application was sponsored by the
respondent. During an interview with the immigra
tion program officer in connection with this
application, he denied that Jagpal Singh Narwal
had been in any way related to the respondent. In
the meantime, the respondent maintained regular
correspondence with Sukhwantjit Singh Narwal
and, between April and July, 1988, visited him in
India from where she returned so she could be
present at her appeal before the Board.
The Board addressed three issues before finally
disposing of the appeal in the respondent's favour
pursuant to subsection 79(2) of the Immigration
Act, 1976 [S.C. 1976-77, c. 52 (as am. by S.C.
1986, c. 13, s. 16)]. It decided by a majority that
the validity of the marriage was governed by the
law of India and that, as the evidence of the
existence in that country of a custom permitting a
woman to marry the brother of her former hus
band was at least evenly balanced, the custom was
to be taken as established because the appellant
had failed to discharge the onus of proving that the
custom did not exist. Secondly, the Board conclud
ed that the marriage was not entered into by
Sukhwantjit Singh Narwal primarily for the pur
pose of gaining admission to Canada as a member
of a family class but, rather, that "the marriage
was entered into by the appellant with the inten-
tion of residing permanently with the applicant".'
Finally, the Board found as a fact that Sukhwant-
jit Singh Narwal had, indeed, denied that his
brother Jagpal had been in any way related to the
respondent (despite their previous marriage) and
concluded that this denial constituted a misrepre
sentation of a material fact relevant to the out
come of the application for permanent residence
and that it had precluded further investigation by
the immigration officer.' The Board therefore con
cluded that Sukhwantjit Singh Narwal could not
be admitted into Canada. Nevertheless, the Board
considered that there existed significant humani
tarian or compassionate grounds under paragraph
79(2)(b) of the Act for granting special relief and
proceeded to make an order allowing the appeal on
that basis, thus clearing the way for his admission
into Canada.
The appellant attacks this decision on the
ground that the Board erred in finding that a valid
marriage existed according to the law of India and,
secondly, (because of that error) that Sukhwantjit
Singh Narwal should have been found not to be "a
member of the family class" with the result that
there existed no jurisdiction in the Board for
granting special relief under subsection 79(2) of
the Act. The power to grant such relief depends
upon the existence of a refusal of a landing
application pursuant to subsection 79(1) which, in
terms, is concerned with a sponsored application
' Reasons, Appeal Book, Vol. 2, at p. 133. The right under
paragraph 4(1)(a) of the Immigration Regulations, 1978
[SOR/78-172 (as am. by SOR/84-140, s. 1)], of certain
Canadian citizens and permanent residents to sponsor an
application for landing made by a spouse is qualified by
subsection 4(3) [as enacted idem]:
4....
(3) Paragraph (1)(a) does not apply to a spouse who
entered into the marriage primarily for the purpose of gain
ing admission to Canada as a member of the family class and
not with the intention of residing permanently with the other
spouse.
2 Subsection 9(3) of the Act provides:
9....
(3) Every person shall answer truthfully all questions put
to that person by a visa officer and shall produce such
documentation as may be required by the visa officer for the
purpose of establishing that his admission would not be
contrary to this Act or the regulations.
"made by a member of the family class". 3 Accord
ingly, if we were to conclude that the Board erred
in deciding that a valid marriage existed, it would
follow that it then lacked jurisdiction to grant
special relief under subsection 79(2) unless we
were to find the marriage to be valid on a ground
that was rejected by the Board.
The view I take of this case renders it unneces
sary to decide whether the Board erred in finding
that the appellant had failed to sustain the burden
of proving that the marriage of August 18, 1986
was invalid on the ground that no custom existed
in the law of India that permitted a valid marriage
of the respondent to the brother of her former
husband. As the Board points out, by the law of
that country a marriage may be solemnized be
tween any two Hindus if, inter alia, the parties are
not within the degrees of "prohibited relationship"
and that one may yet be solemnized even if they
are so related if the custom or usage governing
each of them permits a marriage between them. 4
It is also clear by that law that, because of the
earlier marriage, the respondent was, vis-a-vis
Sukhwantjit Singh Narwal, within the "prohibited
relationship".
It is my view that the Board erred in deciding
that the substantial validity of the marriage had to
be determined by the law of India rather than by
applicable law in Canada which, it seemed accept
ed on both sides, contained no such bar to the
marriage. The traditional view is that the law
governing capacity to marry is that of the domicile
of both parties at the time of the marriage. How
ever, the respondent urged the Board to apply an
alternative theory, namely, that capacity is to be
governed by the law of the intended matrimonial
home of both parties, a theory espoused in Che-
shire, Private International Law, 9th ed., at pages
335-336 and discussed by the High Court of Jus-
3 Subsection 79(1) reads in part:
79. (1) Where a person has sponsored an application for
landing made by a member of the family class, an immigra
tion officer of visa officer, as the case may be, may refuse to
approve the application ....
^ Clause 5(iv) of the Hindu Marriage Act, 1955 [1955, Act
No. 25 (India)].
tice of Ontario in Feiner v. Demkowicz (falsely
called Feiner) (1973), 2 O.R. (2d) 121, at page
126 where Van Camp J. said:
According to this theory, the basic presumption that capacity
to marry is governed by the law of the pre-nupital [sic]
domicile of the parties, is rebutted if it can be inferred that the
parties at the time of the marriage intended to establish their
home in a certain country and did in fact establish it there
within a reasonable time.
This theory was, indeed, applied by the Board
itself in Gill, Ravinder Kaur v. M.E.I. (I.A.B.
82-6270), May 1, 1986, and, I may add, seems to
have been accepted by Denning L.J. in Kenward v.
Kenward, [1951] P. 124 (C.A.), at pages 143-146.
While the Board in the present case found, in
effect, the Feiner approach to be "eminently
reasonable and fair to all concerned", 5 it neverthe
less concluded that it was inapplicable to the case
at bar. At page 9 6 it stated:
The Board has no difficulty in finding that the couple always
had the mutual intention from the time of their marriage to
establish their home in Canada. Unfortunately, while the appel
lant is established here the same cannot be said for the appli
cant. His application for permanent residence was refused. He
has no legal right to come to Canada. He has never been to
Canada. Therefore the Board is prepared to conclude that the
laws of the prenuptial domiciles of the parties in this case must
apply to the marriage. This case is distinguishable from Gill. In
Gill, the couple had shown more than an intent to establish
permanent residence in Canada. The principal applicant was
allowed a work permit from the Immigration authorities and
found work here. There were two children of the marriage both
of whom were born in Canada. Their father left Canada after
being advised to make application from abroad. His wife also
visited him in India. Therefore, the Board in Gill was able to
apply the intended matrimonial home doctrine to determine
that Canada was the domicile of the couple.
With respect, I find this reasoning unconvincing
and even somewhat rigid in that it appears to
neglect the spirit of the intended matrimonial
home theory. True enough, Sukhwantjit Singh
Narwal is not established in Canada. On the other
hand, as the majority found, both he and the
respondent "always had the mutual intention from
5 Reasons, Appeal Book Vol. 2, at p. 127.
6 Appeal Book, Vol. 2, at p. 128.
the time of their marriage to establish their home
in Canada". This was not, in my view, an intention
that had no practical possibility of becoming a
reality. There was, I think, a reasonable probabili
ty at the time of the marriage that, with his wife
already a resident of Canada, Sukhwantjit Singh
Narwal would be landed here within a reasonable
time and thus be able, with her, to establish a
matrimonial home for themselves and their
Canadian-born child. Moreover, as mentioned
above, the record clearly shows that the couple
acted in positive ways to realize their intention of
establishing a home in this country. The respond
ent returned immediately to Canada where she
bore their child. After a short delay, Sukhwantjit
Singh Narwal returned to India where he filed an
application for permanent residence in Canada,
thinking that this had to be done in his homeland.
The respondent sponsored the application. In my
view this evidence satisfies the objective element of
the theory as summarized in Feiner. The fact that
the couple has not yet established a home here is
not due to any lack of interest or effort on their
part but is, rather, due to their inability to con
vince the Canadian authorities of the merit of the
application. I am thus satisfied that the spirit of
the intended matrimonial home theory is indeed
met and, accordingly, that the August 18, 1986
marriage was valid according to that theory. To so
decide is but to logically extend what the Board
itself has decided in the Gill case.
Although the Board concluded that the mar
riage was valid, it came to that conclusion by a
different route. Nevertheless, in view of the con
clusion I have just reached, Sukhwantjit Singh
Narwal was "a member of the family class" and,
accordingly, the Board did possess jurisdiction to
grant the special relief pursuant to subsection
79(2) of the Act. I would, therefore, dismiss this
appeal.
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