Supreme Court of Canada
Hood v. Hood, [1972] S.C.R. 244
Date: 1971-06-28
Nancy Ann Hood (Plaintiff) Appellant;
and
John Russell Hood (Defendant) Respondent.
1971: May 10, 11; 1971: June 28.
Present: Martland, Judson, Ritchie, Hall and Laskin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Husband and wife—Alimony action dismissed—Husband refusing wife’s subsequent offer to resume cohabitation—Second alimony action brought—Allegation that husband’s refusal constituted desertion—Husband having valid reasons for refusing to accept offer.
The appellant left the matrimonial home and on the following day laid a charge of assault against her husband. Shortly thereafter she commenced proceedings against him, alleging cruelty on his part. The pleadings were subsequently amended to allege desertion by the husband. The action was dismissed, the trial judge finding that the disruptive attitude of the appellant throughout the period of cohabitation was planned and deliberate, that she had left the matrimonial home, that there was no desertion by the husband, and that the charge of assault had been laid for the purpose of founding a cause of action for alimony.
Prior to that trial the appellant, through her solicitor, made overtures about reconciliation, which were futile. A further offer of reconciliation, made while an appeal from the trial judgment was pending, also failed. The appeal was dismissed and a few days later the appellant withdrew the charge of assault. Later in the same month the appellant wrote to her husband, offering to resume cohabitation. The husband refused.
The appellant then sued her husband a second time. She alleged that his refusal to resume cohabitation constituted desertion, which entitled her to live separate and apart from him, and to receive alimony from him. This action was successful, but, on appeal, the judgment at trial was reversed. The wife appealed to this Court.
Held (Hall and Laskin JJ. dissenting): The appeal should be dismissed.
Per Martland, Judson and Ritchie JJ.: The important fact was that a judicial finding, as between
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the parties, had been made. The trial judge in the earlier action had dismissed the appellant’s allegations of cruelty and desertion, and found that she had deserted her husband. That judgment was affirmed by the Court of Appeal. The appellant’s letter to her husband was written only 18 days later.
Under these circumstances, the respondent had ample grounds for refusing to accept the offer contained in that letter. The trial judge thought the offer was genuine. But that did not conclude the matter. The respondent had good reason, in the light of his past experience with the appellant, to doubt that it was genuine. In any event, genuine or not, he had valid reason for refusing to accept her offer to resume cohabitation. His refusal did not make him into a deserter.
Per Hall and Laskin JJ., dissenting: The kernel of this case lay in the genuineness or sincerity of the appellant’s offer. The trial judge believed the plaintiff wife and concluded that her offer to return, with restitution of conjugal rights, was sincere. The Court of Appeal’s reversal of the findings of the trial judge rested, ultimately, on that Court’s refusal to believe in the wife’s sincerity because of the shadow cast by the first action. The wife did have a locus poenitentiae; and in the light of the fact that she gave credited evidence and the husband did not testify, the Court of Appeal should not have interfered with the trial judge’s assessment and findings.
APPEAL from a judgment of the Court of Appeal for Ontario, dismissing the plaintiff’s action, and reversing the judgment of Donoghue J., awarding the plaintiff alimony. Appeal dismissed, Hall and Laskin JJ. dissenting.
E.A. Cherniak, for the plaintiff, appellant.
G.D. Findlayson, Q.C., for the defendant, respondent.
The judgment of Martland, Judson and Ritchie JJ. was delivered by
MARTLAND J.—This is an appeal from the unanimous judgment; of the Court of Appeal for Ontario, which allowed the appeal of the present respondent from a judgment which had declared that the present appellant was living separate
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and apart from the respondent by reason of his desertion, and was entitled to alimony in the amount of $750 per month.
The parties were married on November 30, 1963. The appellant was then 43 years of age, and the respondent 55. There is no issue of the marriage. The appellant left the matrimonial home on October 16, 1966. On the following day she laid a charge of assault against her husband in the Juvenile and Family Court for the City of Stratford. On November 1, 1966, she commenced proceedings in the Supreme Court of Ontario against the respondent, alleging cruelty on his part. The pleadings were subsequently amended to allege desertion by the respondent.
This action came on for trial, and on January 11, 1968, the action was dismissed. The trial judge found that the disruptive attitude of the appellant throughout the period of cohabitation was planned and deliberate, that she had left the matrimonial home, that there was no desertion by the respondent, and that the charge of assault had been laid for the purpose of founding a cause of action for alimony.
Prior to that trial the appellant, through her solicitor, made overtures about reconciliation, which were futile.
The appellant appealed from the judgment at trial, but the appeal was dismissed. While the appeal was pending, her solicitor wrote to the respondent’s solicitor stating:
My client is renewing the offer, and is prepared unequivocally to resume marital cohabitation with her husband, forget past differences, and start afresh.
The respondent’s solicitor replied:
My client believes, as surely your client must, that the marriage is beyond repair and thus there is no useful purpose to be served in pursuing the matter.
The appeal was dismissed on April 2, 1968. The appellant withdrew the charge of assault, which was then pending, a few days later.
The same month, on April 20, the appellant wrote to the respondent, as follows:
I should like to talk to you about our getting back together again. I know we have had our differences in the past but I think we could resume our life
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together successfully now that we have been apart for a while.
At our ages there are many years ahead that we could enjoy together if we took up our marriage again. I am willing to come back and try, and I know we can make a go of it if we both work at it. I was very sorry that you wouldn’t meet with me last December when I asked my lawyer to speak to your lawyer so that the trial had to go ahead in January. I think we could have talked things over at that time and resumed our married life. It would really be more rewarding for both of us to have each other for the rest of our lives. Remember you told me when I tried so hard to get you to make up after a quarrel that if I hadn’t done it you never would. You said you just couldn’t give in, it was your nature. Well, I’m trying again and I’d like you to think about it seriously and to think what we are both missing by not being together. I will look forward to hearing from you in the meantime.
Love,
Nancy.
The husband wrote on the bottom of the letter, “No. Thanks just the same”, and presumably returned it to the wife with that notation endorsed thereon.
On July 15, 1968, the appellant sued her husband a second time. She alleged that his refusal to resume cohabitation constituted desertion, which entitled her to live separate and apart from him, and to receive alimony from him.
The position is, therefore, that, there having been a judicial finding as between the parties, confirmed on appeal, on April 2, 1968, that the respondent had not deserted the appellant, the appellant now alleged desertion on his part because of his failure to resume cohabitation with her, following her letter.
The second action was successful. The relevant portions of the reasons for judgment, at trial, are as follows:
After the dismissal of her appeal in the first action, the plaintiff wrote to her husband on April 20th, 1968, ex. 5.
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As much of the dispute in this action concerns whether the plaintiff made a real offer to resume cohabitation and her good faith in this respect, it is important to peruse this letter carefully. As I read it, it is conciliatory in tone, affectionate to a degree appropriate to mature persons, apologetic without being abject, constructive and clearly sets out that the plaintiff wishes to resume cohabitation with the defendant. The defendant returned this letter to the plaintiff with this answer written upon it above his initials “No. Thanks just the same.”
The plaintiff stated that after this letter of April 20th, 1968, she wrote little notes to the defendant recalling the good times of their marriage. The defendant neither denied these notes nor produced or explained them. I can only infer that they did not help his case. She says further that in the winter of 1969 she met her husband by chance and he refused to talk to her.
I formed a favourable impression of the plaintiff. She gave her evidence in a forthright and direct way. In his cross-examination Mr. Isbister put it to her that she had set her cap for the defendant at a time when he was separated from his first wife. She met this suggestion candidly saying that it was true to a degree but that she felt sure that he was likewise interested in her. Further, when questioned as to whether she really wanted to return to the defendant she said she was willing to return during the first trial and the appeal, but she was not so sure now. She said that as a condition of returning she would expect the defendant to be kind to her. The plaintiff made these answers with honesty and candour. I did not then or on deep reflection since take these answers to mean that she had changed her mind about wanting to return to her husband, but rather that because he had so curtly rejected all her advances, she was beginning to lose hope that he would ever be kind to her if she did return. In my view, the plaintiff had adequate grounds for any misgivings she might have expressed at trial about returning to her husband. It was he who first brought solicitors into the breach if there were one. His adamant refusals to talk to her remained unexplained.
The judgment at trial was reversed on appeal. In the reasons for judgment, reference was, made
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to the case of H. v. H., and to the necessity, in the circumstances of this case, for the appellant to establish that the respondent was living apart from her:
1. without sufficient cause; and
2. under circumstances which would entitle her, by the law of England, to a decree of restitution of conjugal rights.
The Court of Appeal did not place the same interpretation on the letter as had the trial judge:
Having regard to all of the circumstances at the time at which it was written, my brothers and I find it difficult to detect any tone of conciliation in the letter; we discern no feeling of affection; and, while it may be constructive, it does not, in our view, contain an express statement by the plaintiff that she truly wished to resume cohabitation.
In assessing the respondent’s sincerity as reflected only in that letter, it must be borne in mind that Mr. Justice Moorhouse had found that her attitude which resulted in the break up of the home was planned and deliberate on her part, that she had threatened to harm her husband financially and in his standing in the community, and that she did not wish to live with him; and at the time of the second trial, she gave a clear indication that she did not wish to return to him.
The Court of Appeal was also of the opinion that the appellant, by her conduct, was disentitled to alimony:
There is another reason why the respondent was not entitled to succeed in her action. As it seems to me, she was guilty of sufficiently grave and weighty misconduct as to disentitle her to alimony. I have in mind her boasts as to causing harm to the appellant, her unwarranted allegation of cruelty, her invalid charge against him for assault, and, lastly, the fact that at no time, not even in the letter, ex. 5, did she express regret for her prior misconduct or promise improvement. We agree, therefore, that the appellant had good and sufficient reason to refuse the invitation to negotiate the matter and that the circumstances thus are quite different from those which confronted the Court in Dowcett v. Dowcett, [1948] O.W.N. 685.
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It is my opinion that the Court of Appeal reached the correct conclusion. The Court gave careful attention to the effect of the first proceedings by the appellant against the respondent. A transcript of the evidence in the earlier trial was in evidence before the learned trial judge in the second action, but he makes no mention of the findings of the learned trial judge in that action.
The important fact is that a judicial finding, as between the parties, had been made. The appellant’s allegation of cruelty had been dismissed, the allegation of the respondent’s desertion of his wife was dismissed, and it was found that she had deserted him. That judgment was affirmed by the Court of Appeal. The letter, upon which so much reliance was placed by the learned trial judge in the present case, was written by the appellant only 18 days later.
In my opinion, under these circumstances, the respondent had ample grounds for refusing to accept the offer contained in that letter. The learned trial judge thought the offer was genuine. But that does not conclude the matter. The respondent had good reason, in the light of his past experience with the appellant, to doubt that it was genuine. In any event, genuine or not, he had valid reasons for refusing to accept her offer to resume cohabitation. His refusal did not, on the facts of this case, make him into a deserter.
For these reasons, I would dismiss this appeal, with costs.
The judgment of Hall and Laskin JJ. was delivered by
LASKIN J. (dissenting)—This appeal arises out of an alimony action, the second brought by the appellant wife against her husband. The first was dismissed by Moorhouse J. on January 11, 1968, with strong findings of fact against the wife, and an appeal by the wife failed on April 2, 1968. The second action was begun on July 15, 1968, and succeeded after trial on December 10, 1969, before Donohue J. who delivered reasons on January 6, 1970. His finding of fact in favour of
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the wife on the crucial issue whether she was sincere in her desire to resume cohabitation, with restitution to her husband of conjugal rights, was reversed by the Ontario Court of Appeal on June 24, 1970. The case is now here, substantially on that issue.
A threshhold question for me is the position of this Court in cases where we are asked to choose between different findings of fact by the trial judge and by the provincial Court of Appeal on the same issue; and especially where, as here, the determination of that issue determines the result of the action. Is the preferable position that this Court should proceed on the view that it will not interfere with the Court of Appeal’s finding unless satisfied that it is wrong or is the preferable position that this Court should proceed on the view that it will not interfere with the Court of Appeal’s finding only if it is satisfied that the trial judge was wrong.
I realize, of course, that given the jurisdiction which this Court possesses to interfere with findings of fact below, there can be no invariable rule; and certainly the Court’s exercise of this jurisdiction has been demonstrated even in “concurrent findings” cases, despite general statements that it should rarely be done. Formulae of abstinence and of intervention abound through the case law, each suited to the particular situation. It would be rash, however, to see them as merely result-oriented; they do provide guide fines, although their reiteration against contrary results must rob them of trustworthiness. It may be the better course to assert the jurisdiction to review facts unequivocally, whenever it is proposed to interefere with findings of fact.
The two approaches to fact review that I have mentioned, where the trial judge and the Court of Appeal differ on a factual issue, are exemplified in Demers v. Montreal Steam Laundry
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Co. and in Palsky v. Humphrey. In Demters, Taschereau J., for the Court, put the matter as follows (at p. 538):
...it is settled law upon which we have often acted here, that where a judgment upon facts has been rendered by a court of first instance, and a first court of appeal has reversed that judgment, a second court of appeal should interfere with the judgment on the first appeal, only if clearly satisfied that it is erroneous.
(I note the reference to “settled law”, which, in my opinion, overstates the situation because we are dealing merely with the practice of the Court in exercising an admitted jurisdiction.) In the Palsky case, Spence J., for the Court, said this (at p. 583):
I accept the propositions put by counsel for the appellants in this Court that [the trial judge’s] finding should not be reversed unless the inferences which he drew were clearly wrong or that he acted on some incorrect principle of law.
There are cases in which a trial judge’s findings of fact have been restored by this Court without dwelling on guiding rules, but simply on review of the facts: see, for example, Hayes v. Day; Massicotte v. Les Commissaires d’Écoles d’Outremont. In others, the Palsky view, if I may so term it, has been justified in terms of the credibility given by the trial judge to the witnesses: see Granger v. Brydon-Jack, per Brodeur J. at p. 500. Indeed, it has also been said that where credibility is not involved in the first tribunal’s findings, this Court must be satisfied that the provincial appellate Court is wrong before interfering with its contrary view of facts: see Duthoit v. Province of Manitoba, at p. 132. Nor has the Demers view been without its subsequent supporters: see Annable v. Coventry, per Ànglin J., at p. 588.
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Overall, on my reading of the cases that have in recent years come before this Court, it has leaned in favour of the rule that carries support for the findings of the trial judge unless he was clearly wrong. Considerable influence to this end has been wielded by the judgments of the House of Lords in Powell v. Streatham Manor Nursing Home, and in Watt or Thomas v. Thomas. Illustrative are the judgments of this Court in Prudential Insurance Co. Ltd. v. Forseth, Maze v. Empson, and in Vinnal v. The Queen. None the less, the other view has also been recently affirmed, as in Dorval v. Bouvier, although not without dissent.
The two views are simply generalities and, as such, they do not appear to depend on any particular case classifications. The application of the one or the other reflects attitudes that influence judgment. Reducing their application to rules is impossible, because each of them is qualified in a way which permits opposite results to be reached by judges who proceed from a common standard. As good an illustration as I have been able to find is Little v. Little where, in a matrimonial case, this Court divided three to two in restoring the trial judge’s finding of fact, although all members of the Court avowed support for the view (emphasized in Watt or Thomas v. Thomas, supra, as especially appropriate to matrimonial cases) that the trial judge’s findings, based on his advantage of hearing and observing witnesses, should not be interfered with unless they are clearly wrong.
This short canvass leaves me with no sense of accomplishment, other than to encourage me in my view that on factual issues the proper starting point, even in this Court, is deference to a trial judge’s findings. That being said, it remains a mere homily, from which each judge can pro-
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ceed in his assessment of the appeal as he sees fit. Whatever sense of restraint flows from the starting point is too individual a matter to be susceptible of a generalized rule that would be of any help. The exercise becomes, if anything, circular.
Having declared my approach as above stated, I turn, first, to the findings at trial in the present case and then to the contrary findings of the Court of Appeal. In order for the wife to claim alimony, following her first unsuccessful action, she was obliged to prove that she wished sincerely to return to her husband, from whom she had separated (wrongly as was found in the first action), and to receive and to restore conjugal rights, and that he had wrongly refused such a reconciliation. The wife alone gave evidence in the second action and it is clear that the defendant husband was unwilling to have her return.
A deserting wife’s right to reinstate herself, so to speak, as consort of her husband is not disputed. If he wrongly refuses to take her back, he must suffer the consequence of liability for alimony. In a case like the present one, where there has previously been an adjudication adverse to the wife, it is understandable that her sincerity in wishing to return and to offer and resume conjugal rights and duties should be carefully assessed. That assessment, in my view, ought not, however, to descend to the point where she is robbed of dignity and reduced to abjectness. I may observe that the discord between the spouses in this case did not involve marital infidelity or any element of public disrepute on the wife’s part.
The record in the first alimony action was put before Donohue J. in the present case. He also had before him a letter of April 20, 1968, written by the wife to the husband a few weeks after the dismissal of her appeal in the first action, in which she asked for a reconciliation. She had sought reconciliation through her solicitors after the trial judgment in the first action but had been rebuffed. There was outstanding at the time, and it remained outstanding until after the appeal
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judgment in the first action, a complaint of assault by the wife against the husband, a complaint laid following an incident on October 16, 1966, which led to the separation of the spouses. The letter of April 20, 1968, was returned by the husband with a notation “No. Thanks just the same.”
The trial judge in the second action had before him, as already mentioned, the wife’s testimony. In it she referred to her attempts at reconciliation prior to the institution of the second action and to subsequent attempts to re-establish rapport (as a basis for reconciliation) by sending her husband a number of notes, of some of which she kept copies. Her testimony was unanswered save by a cross‑examination which dwelt largely on matters which were of record in the first action and in the appeal therein. Although the first action concluded in the husband’s favour, the record also shows that from the time of the separation after October 16, 1966, he refused to consider reconciliation, refused to meet with her or to correspond with her, and even refused to talk to her when she met him by chance prior to the trial before Donohue J.
The learned judge made a number of findings as the basis of his award of alimony. I refer to the critical ones in the trial judge’s words, and they are as follows:
(1) I formed a favourable impression of the plaintiff. She gave her evidence in a forthright and direct way. In his cross-examination Mr. Isbister put it to her that she had set her cap for the defendant at a time when he was separated from his first wife. She met this suggestion candidly saying that it was true to a degree but that she felt sure that he was likewise interested in her. Further, when questioned as to whether she really wanted to return to the defendant she said she was willing to return during the first trial and the appeal, but she was not so sure now. She said that as a condition of returning she would expect the defendant to be kind to her. The plaintiff made these answers with honesty and candour. I did not then or on deep reflection since take
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these answers to mean that she had changed her mind about wanting to return to her husband, but rather that because he had so curtly rejected all her advances, she was beginning to lose hope that he would ever be kind to her if she did return. In my view, the plaintiff had adequate grounds for any misgivings she might have expressed at trial about returning to her husband. It was he who first brought solicitors into the breach if there was one. His adamant refusals to talk to her remained unexplained.
(2) As much of the dispute in this action concerns whether the plaintiff made a real offer to resume cohabitation and her good faith in this respect, it is important to peruse this letter [of April 20, 1968] carefully. As I read it, it is conciliatory in tone, affectionate to a degree appropriate to mature persons, apologetic without being abject, constructive and clearly sets out that the plaintiff wishes to resume cohabitation with the defendant.
(3) It is my view that the whole question here turns upon the sincerity or genuineness of the wife’s desire to resume cohabitation. No suggestion is made here that the wife has in any way disentitled herself to live with her husband in his home...I hold that the plaintiff is entitled to alimony.
These findings speak clearly to me that the trial judge believed the plaintiff wife, that he concluded that her offer to return, with restitution of conjugal rights, was sincere, and that any misgivings about how her husband would receive her were reasonably founded in the light of his continuing rebuffs and unwillingness to meet with her.
The Court of Appeal’s reversal of the findings of Donohue J. leans heavily on the findings at the first trial. It rests, ultimately, on that Court’s refusal to believe in the wife’s sincerity because of the shadow east by the first action. The wife does have a locus poenitentiae; and in the light of the fact that she gave credited evidence and the husband did not testify, I am unable to appre-
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ciate how an appellate Court could properly interfere with the trial judge’s assessment and findings.
I do not see the need for any extensive canvass of the reasons delivered on appeal. A few references are, however, necessary to indicate their perspective. The Court of Appeal’s reasons include the following:
(1) “It is I think most significant that at the trial before Mr. Justice Moorhouse the wife took the position that she would not return to her husband if given the opportunity to do so.” This is simply not so. She was asked by her counsel: “If your husband treated you as a wife were you prepared to go back and live with him?” Her answer was “if he was loving and kind, yes.” This answer stood uncontradicted.
(2) Referring to the reasons of Donohue J., the Court of Appeal said: “Apparently he decided she was sincere…He did not, however, expressly find such sincerity.” Surely, the finding was sufficiently obvious without being punctuated.
(3) The Court of Appeal said: “…at the time of the second trial, she gave a clear indication that she did not wish to return to him.” That is not an accurate statement; and, moreover, it ignores the context of the wife’s evidence, and is at variance with the finding on this issue made by the trial judge.
(4) The Court of Appeal charged Donohue J. with error when he said in his reasons that “no suggestion is made here that the wife has in any way disentitled herself to live with her husband in his home.” The error is that of the Court of Appeal because the context shows clearly that the learned trial judge had in mind other misconduct of the wife than that involved in the desertion which she was seeking to terminate. There is otherwise a logical fallacy in criticising the trial judge in relation to the very issue which was before him for determination.
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Although a wide range of cases was brought to the Court’s attention, including many that refer to a duty to consider an offer of restitution of conjugal rights, the kernel of this case lies in the genuineness or sincerity of the offer. The difference between the trial judge and the Court of Appeal is, apart from what I have already alluded to, a difference on the proper degree of abjectness and how demonstrably it must be manifested by the wife. The trial judge saw and heard the wife, and concluded that she could properly stand on her offer of amends. He was, in my view, not clearly wrong but clearly right, having regard to the fact that a marriage during its subsistence is not governed by contract rules relating to excuse from performance. Although not necessary to support my view of this case, the record would justify a finding that the husband was unwilling to accept an offer of restitution of conjugal rights, even if made with the utmost sincerity and with complete abjectness.
This is a case where this Court should, under s. 46 of its constituent Act, give the judgment that the Court of Appeal should have given.
I would, therefore, allow the appeal, set aside the order of the Court of Appeal and restore the judgment of Donohue J. awarding the wife $750 per month from May 1, 1968, and her costs on a solicitor and client basis. The wife is also entitled to costs in the Court of Appeal and in this Court.
Appeal dismissed with costs, HALL and LASKIN JJ. dissenting.
Solicitors for the plaintiff, appellant: Lerner, Lerner, Bradley, Cherniak & Granger, London.
Solicitors for the defendant, respondent: Lash, Johnston, Sheard & Pringle, Toronto.
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