Adams and al. v. McLeod and al., [1978] 2 SCR 621

SUPREME COURT OF CANADA

Adams and al. v. McLeod and al., [1978] 2 S.C.R. 621

Date: 1978-03-21

Bonnie Lynn Adams and William Walter Adams Appellants;

and

Libby McLeod and Irene Ramstead Respondents.

1978: March 8, 9; 1978: March 21.

Present: Martland, Ritchie, Spence, Dickson and Beetz JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Infants — Custody — Best interest of infant — Decision of trial judge restored — Failure to find any error in principle or that any important evidence disregarded.

Lawrence Brown was born on April 6, 1975, to the late Marie McLeod Brown. At the time of such birth Marie McLeod was living in a common law relationship with George Brown, who, although he did not believe that he was the father of the infant, admitted that this was a possibility. Living with Marie McLeod and George Brown at the time of Lawrence's birth was another infant, Rebecca McLeod, who had been born to Marie McLeod in 1970 and whose father was never identified. Upon Lawrence's birth, Marie McLeod let both Rebecca McLeod and the new-born infant Law­rence go into the care of her sister-in-law Connie McLeod but about a month later Marie McLeod took the infant Lawrence into her own possession.

George Brown and Marie McLeod were married on July 12, 1975. On the following day, Marie McLeod Brown became ill and was hospitalized. On July 16, 1975, her mother, the respondent Libby McLeod, took the five-year-old infant Rebecca into her own custody and delivered the four-month-old infant Lawrence into the custody of her daughter-in-law Connie McLeod. This appeared to have been with the consent of both Marie Brown and her husband George Brown. Marie Brown died on July 25th and on July 26th George Brown attended at Connie McLeod's home and took possession of the infant Lawrence Brown. He was accompanied at that time by Bonnie Lynn Adams, his niece, the present appellant, and her husband, William Walter Adams, her co-appellant. George Brown deliv­ered the infant Lawrence into the custody of Mr. and Mrs. Adams, where he remained until May 11, 1977.

On December 2, 1976, a joint application for guard­ianship by the child's maternal grandmother, Libby McLeod, and his aunt, Irene Ramstead, was dismissed

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and at the same time a newly filed application for guardianship by William and Bonnie Adams was granted. Libby McLeod and Irene Ramstead appealed and on May 11, 1977, the Appellate Division of the Supreme Court of Alberta reversed the decision of the trial judge and granted custody to the respondent, Irene Ramstead. Mr. and Mrs. Adams appealed from the judgment of the Appellate Division to this Court.

Held: The appeal should be allowed and the judgment at trial restored.

There was no need to cite any authority to delineate the task of a court upon an infant's custody issue. The one cardinal issue is the best interest of the infant and all else is secondary. The most authoritative pronouncement upon that best interest is by the trial judge who hears the evidence and assesses it.

Contrary to the opinion of the Appellate Division that the trial judge "acted on wrong principles or disregarded material evidence" or committed a "manifest error", this Court, after examining each of the suggested errors, failed to find that the decision of the trial judge con­tained any error in principle or that he had disregarded any important evidence. Failing such disclosure, his decision should be affirmed.

The view of the Appellate Division that the trial judge was somewhat confused by the fact that a joint applica­tion had been made by the grandmother and the aunt and had not exercised his discretion sufficiently to con­sider separating that joint application was not accepted. Nor was the view accepted that the trial judge had failed to give sufficient weight to factors of race and the relationship of the applicants, McLeod and Ramstead, to the infant. The Court also rejected the other factors which the Appellate Division cited as moving that Court to reverse the trial judge, i.e., "the obvious disinterest of the child's father George Brown" and "the religious background of Marie Brown and Irene Ramstead".

McKee v. McKee, [1951] A.C. 352 (P.C.); Bickley v. Bickley, [1957] S.C.R. 329; Retzer v. Retzer, [1975] 2 S.C.R. 881; MacDonald v. MacDonald, [1976] 2 S.C.R. 259; Talsky v. Talsky, [1976] 2 S.C.R. 292, referred to.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division, allowing an appeal from a judgment of Legg J.S.C. in the matter of the guardianship of an infant. Appeal allowed.

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A. Germain, for the appellants.

J. Coutu, for the respondents.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal from the judg­ment of the Appellate Division of the Supreme Court of Alberta pronounced on May 11, 1977. By that judgment, the said Appellate Division allowed an appeal from the judgment of His Honour Judge S. V. Legg of the Surrogate Court given orally after the trial on December 1 and 2, 1976. By the latter judgment, His Honour Judge Legg had granted letters of guardianship to the present appellants and dismissed the application by the present respondents. His Honour had commenced the consideration of an application for grant of letters of guardianship by the present respondents and it would appear that the present appellants had been served with notice thereof because at that time they had the physical custody of the infant Lawrence Frederick Jr. McLeod. His Honour dismissed the application of the present respondents and then, perhaps at His Honour's suggestion, the present appellants filed their application and His Honour granted the latter. The present respondents appealed and the Appellate Division allowed the appeal. The formal order of the Appellate Division provides simply "That the appellant Irene Ramstead shall have custody of the infant Lawrence Brown" and throughout the matter was handled as a contest for the cus­tody of the said infant.

Lawrence Frederick Jr. Brown was born on April 6, 1975, to the late Marie McLeod Brown. At the time of such birth Marie McLeod was living with George Brown in a common-law rela­tionship but neither the said George Brown nor any other witness before His Honour Judge Legg believed that he was the father of the said infant although George Brown went so far as to admit "Yeah, there is a possibility". Living with Marie McLeod and George Brown at the time of Law­rence's birth was another infant, Rebecca McLeod, who had been born to Marie McLeod in 1970 and whose father was never identified. Upon Lawrence's birth, Marie McLeod let both Rebecca McLeod and the new born infant Lawrence go into

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the care of her sister-in-law Connie McLeod but about a month later Marie McLeod took the infant Lawrence into her own possession.

George Brown and Marie McLeod were married on July 12, 1975. On July 13th, the very next day, Marie McLeod Brown became ill and was hospi­talized. On July 16, 1975, her mother, the respondent Libby McLeod, took the five-year-old infant Rebecca into her own custody and delivered the four-month-old infant Lawrence into the cus­tody of her daughter-in-law Connie McLeod. This appears to have been with the consent of both Marie Brown and her husband George Brown and, no doubt, was a step to meet the emergency caused by Marie Brown's serious illness. Marie Brown died on July 25th and on July 26th George Brown attended at Connie McLeod's home and took possession of the infant Lawrence Brown. He was accompanied at that time by Bonnie Lynn Adams, his niece, the present appellant, and her husband, William Walter Adams, her co-appellant. George Brown delivered the infant Lawrence into the cus­tody of Mr. and Mrs. Adams where he remained until the hearing of the application by His Honour Judge Legg and until his Honour's disposition was reversed by the Appellate Division on May 11, 1977, so that at the latter date Lawrence Brown had lived with and been in the sole care of Mr. and Mrs. Adams from July 26, 1975, when he was four months old, to May 11, 1977, when he was twenty-five months old.

Upon Lawrence's grandmother Libby McLeod and his aunt Irene Ramstead applying for Letters of Guardianship and evidently on consent, Mrs. Unsworth, an officer of the appropriate provincial agency, was appointed amicus curiae. Mrs. Unsworth appeared on the hearing before His Honour Judge Legg and adduced the evidence of one Kenneth W. Bilko, an officer of the Attorney General's Custody Investigation Unit, who pro­duced his detailed investigation report. He was examined thereon by Mrs. Unsworth and by coun­sel for the present respondents only. I shall refer to this matter hereafter. As I have stated above, His Honour Judge Legg dismissed the joint application for guardianship by Libby McLeod and Irene Ramstead and granted the newly filed application for guardianship of William and Bonnie Adams.

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His Honour did so after hearing evidence from five witnesses in support of the McLeod-Ramstead application, three witnesses in support of the Adams application, and the said Kenneth W. Bilko. His Honour also heard extensive argument by counsel and delivered his reasons which, although oral, contained a careful canvass of the testimony and a most commendable assessment of each factor which he rightly believed bore on the decision which he was required to make. The Appellate Division reversed His Honour's decision.

There is no need to cite any authority to deline­ate the task of a court upon an infant's custody issue. Time after time, and more particularly through all the latter part of this century, it has been said and repeated that the one cardinal issue is the best interest of the infant and that all else is secondary. How then is that best interest to be determined? Again our courts have been unani­mous that the most authoritative pronouncement thereon is by the trial court judge who hears the evidence and assesses it. I commence with the statement by Lord Simmonds in McKee v. McKee[1], at p. 360:

Further, it was not, and could not be, disputed that the question of custody of an infant is a matter which peculiarly lies within the discretion of the judge who hears the case and has the opportunity generally denied to an appellate tribunal of seeing the parties and investigating the infant's circumstances, and that his decision should not be disturbed unless he has clearly acted on some wrong principle or disregarded material evidence.

A like view was adopted by this Court inter alia in Bickley v. Bickley[2]; Retzer v. Retzer[3]; MacDonald v. MacDonald[4], at p. 260; and Talsky v. Talsky[5], at p. 293 and pp. 296-7. Similar expressions of opinion could be cited from the judgments of all the provincial Courts of Appeal as well as the English cases. Counsel for the respondents on this appeal submitted that in a case where credibility was not in issue and inferences were to be drawn

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from established facts, the Appellate Division was in as good a position as the trial judge and that it should not, and did not, "shrink from overruling it" (his judgment). Perhaps because my long experience as a trial court judge gave me a lively appreciation of the "inestimable advantage", I have approached that oft-repeated doctrine with caution. However, as to custody issues, that cau­tion must, in my view, become very strong indeed. Those issues are so intensely personal that the trial court judge is able to do, and does, far more than merely assigning credibility. Talsky v. Talsky, supra, is a signal example of this Court's recogni­tion of that position.

In the present appeal, the Appellate Division were of the opinion that the trial judge "acted on wrong principles or disregarded material evi­dence", to quote from McKee v. McKee, supra, at p. 360, or committed a "manifest error", to quote from Talsky v. Talsky, supra, at p. 294. It is necessary to examine each of these suggested errors. Mr. Justice Lieberman, giving judgment for the Appellate Division, expressed the view that the learned trial judge was somewhat confused by the fact that a joint application had been made by the grandmother and the aunt and had not exer­cised his discretion sufficiently to consider separat­ing that joint application. The answer would seem to be that such severance was not requested or even suggested by anyone at the hearing before the learned trial judge and, moreover, such a severance would have been a straight contradiction of the case which the joint applicants put before the Court which was that the rather elderly arthritic grandmother should have the care of the four-month-old infant and only if, in the undetermined future, she should find such a task beyond her capabilities, would her daughter, the aunt Irene Ramstead, assume that duty. The Appellate Divi­sion did exercise such discretion and granted cus­tody to that aunt although the aunt, until such decision, had never had the care of the infant. It is to be remembered that it was the other aunt, Connie McLeod, who had Lawrence's care for a short time after his birth and again from the 16th to the 26th of July 1975. It should also be remem­bered that the learned trial judge considered the

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continuity in the care of the infant to be a most important factor. This continuity was broken by granting custody to the aunt and such result could have been avoided if the application made by the present appellants to stay the execution of the order of the Appellate Division pending the deci­sion of this Court, which application was made after leave to appeal had been granted by this Court, had been granted.

The second error assigned by the Appellate Division to the learned trial judge was that he failed to give sufficient weight to factors of race and the relationship of the applicants, McLeod and Ramstead, to the infant. The references to race in the evidence are minimal. When Libby McLeod was called to give evidence, her counsel pointed out "the main problem is she does not speak English as she does Cree" and His Honour Judge Legg asked her "Are you Cree Indian or a half-breed?" and she replied "I'm half-breed" and then continued for many pages to answer in Eng­lish questions put to her in that language. There was no question put as to the racial background of Libby McLeod's common-law husband, if one may use such term, of her former husband, the father of Marie Brown and Irene Ramstead, or of the latter's husband Gordon Ramstead. There was not one word of evidence of any different lifestyle of any of these witnesses called by the McLeod-Ram­stead applicants. In my view, with respect, there was just no evidence making racial background a factor of even slight importance.

As to the relationship of the McLeod-Ramstead applicants to the infant, a perusal of the proceedings upon the hearing demonstrates that the learned trial judge had a clear appreciation of such factor and put it plainly that such relationship was "one thing to take into consideration but that it should not be a deciding factor but one which the Court should at least consider". Moreover, the learned trial judge expressed a reluctance at sepa­rating a half-sister (Rebecca) and a half-brother (Lawrence) but held that was another factor the Court should take into consideration. It is to be noted that the Appellate Division, fully agreeing

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with the learned trial judge's view that custody should not be given to the grandmother Libby McLeod, awarded custody to Irene Ramstead so that the two children are now separated, Rebecca with Libby McLeod in Valleyview and Lawrence with Irene Ramstead in Whitecourt. These two places Libby McLeod testified were one and a half hour's drive apart. Irene Ramstead testified that she visited her mother once or twice a month. That is no more often than the Adams proposed that the McLeod-Ramstead relatives could visit Lawrence in their home at Edmonton.

The next error the Appellate Division assigned to the learned trial judge was what Mr. Justice Lieberman termed "the obvious disinterest of the child's father George Brown". In the first place, it seems to have been generally accepted that, as Mr. Justice Lieberman noted, George Brown was not the father of Lawrence. He did, however, marry Marie McLeod when Lawrence was a little more than three months old and had taken Lawrence into his home to live with Marie and himself as their child when Lawrence was only a month old. George Brown went to Connie McLeod's home the day after his wife Marie died and he took custody of the child. He gave evidence on the hearing before His Honour Judge Legg and he swore that he suggested to Mr. and Mrs. Adams that they should have custody of Lawrence and that he considered them as most appropriate persons to have custody. He gave the reason why he did not wish to have custody himself that he was living alone and would have to resort to the unsatisfac­tory substitute for a mother's care that of a housekeeper or perhaps a series of housekeepers. It is true that in cross-examination he admitted he had no objection when Lawrence was taken to the Connie McLeod home after his birth or again after his wife's hospitalization but stated that on both occasions that was Marie's wish and his desire was to act in accordance with her wish. In an affidavit filed upon application to this Court for leave to appeal and, by agreement of parties, printed as part of the case on appeal, he explained the above, denied his lack of interest in Lawrence and also stated he was not present in the Appellate Division

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upon the argument there as he thought the matter was better handled by the lawyers. I am sure many counsel before appellate courts would agree with him. I cannot find it significant that all interested parties other than Mr. Brown are present at this appeal, as did Mr. Justice Lieberman. On the other hand, I am of the opinion that George Brown's evident desire that William and Bonnie Adams be given custody of Lawrence was a factor to which consideration of no little weight should have been accorded. It is noted that the learned trial judge felt that the wishes of Lawrence's deceased mother should be given consideration but that he was unable to find any valid evidence thereof. A careful perusal of all the evidence on the hearing convinces me this was a valid conclusion.

The last factor which the Appellate Division cited as moving that Court to reverse the learned trial judge was "the religious background of Marie Brown and Irene Ramstead". It is true that both Libby McLeod and Irene Ramstead testified they were Catholic and that the late Marie Brown had also been a Catholic while William Adams was of the Salvation Army sect and Bonnie Adams a "Methodist". Reading all the evidence one received the distinct impression that none of the witnesses were real religious zealots and I am sure the learned trial judge came to a like conclusion. Surely, under these circumstances as to the cus­tody of a little boy only nineteen months old at the time of the hearing, the religious issue was of minor importance and far from being of sufficient weight to permit the learned trial judge's decision to be characterized as one made in manifest error.

For these reasons, I have failed to find that the decision of the learned trial judge contained any error in principle or that he had disregarded any important evidence. I have already emphasized that failing such disclosure his decision should be affirmed. I would, therefore, allow the appeal, reverse the judgment of the Appellate Division, and restore that of the surrogate judge.

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No costs have been awarded in either Court below. I would make no award of costs.

Appeal allowed.

Solicitors for the appellants: Campbell & Germain, Fort McMurray.

Solicitors for the respondents. Coutu & Myroniuk, Grande Prairie.