Supreme Court of Canada
Chisholm v. Chisholm, (1908) 40 S.C.R. 115
Date: 1908-03-23
William Chisholm (Defendant) Appellant;
and
Evelyn Chisholm (Plaintiff) Respondent.
1908: February 18; 1908: March 23.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.
Parent and child — Guardianship — Family arrangement — Public policy.
Where a widow, whose husband left no estate, agrees to give up her natural right of guardianship over her daughter and transfer the same to the latter's grandfather who, on his part, agrees to educate her, provide for her afterwards and allow as full intercourse as possible between her and her mother, the fact that the arrangement includes an allowance to the mother for her maintenance does not necessarily make it void as against public policy. Idington and Duff JJ. dissenting.
APPEAL from a decision of the Supreme Court of Nova Scotia reversing the judgment at the trial in favour of the defendant.
The plaintiff, Evelyn Chisholm, was left a widow with a young daughter. Her husband had been during the coverture entirely dependent on his father and she was left without any means of support. Her father-in-law, the defendant, offered to educate the child in a convent in Halifax and Montreal, to make provision for her when her education was completed and to give the plaintiff an allowance of $500 a year, but insisted on being appointed her legal guardian. After resisting for some time the plaintiff consented
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and the arrangement was carried out. The allowance was paid to the plaintiff for some years and then withheld whereupon she brought an action for the arrears. Several defences were pleaded, among others, want of consideration and that the alleged contract was against public policy, but the only one dealt with by the courts was that the transaction amounted to a sale of the custody of her child by the plaintiff, which was against public policy. The trial judge gave effect to this defence and dismissed the action. His judgment was reversed by the full court and the defendant appealed to the Supreme Court of Canada.
Nesbitt K.C. for the appellant.
Harris K.C. for the respondent.
Nesbitt K.C. for the appellant. It is against public policy for a parent to surrender the natural rights and duties of guardianship over his child for a pecuniary consideration. Vansittart v. Vansittart; Hope v. Hope; Humphrys v. Polak.
The respondents rely on Roberts v. Hall, which is contrary to the decisions of the courts in England.
Harris K.C. for the respondent. If the arrangement has mainly in view the benefit of the child the allowance to the mother will not make it illegal. Roberts v. Hall; Enders v. Ènders.
The Chief Justice.—The appointment of the appellant as guardian was made by the court in the exercise of its undoubted chancery jurisdiction on the application of the respondent, an application which
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the Nova Scotia statute authorized her to make. There is no doubt that the court could, on cause shewn, set aside the appointment, but I cannot understand how the appellant could succeed in these proceedings in obtaining a declaration to the effect that an appointment made by the court was void as against public policy. I can find nothing in the agreement itself or in its surrounding circumstances as brought out by the evidence to justify the contention that the family agreement which is attacked was only a scheme to benefit the mother, or that she had any interest which conflicted or could be in conflict with that of her child. On the contrary, I believe that in contemplation of all the parties the contract had exclusively in view the benefit of the infant. There were, as pointed out by my brother Davies, many reasons why an arrangement of this kind should be entered into, and I agree entirely in the conclusions he has reached.
Davies J.—This was an action brought by the plaintiff, the widow of the only son of the defendant, to recover from the latter payment of an overdue instalment of an annuity agreed to be paid by him to her while she was self-dependent and defendant was able to pay it.
The defence set up was that the only consideration for the payment of the annuity to the plaintiff was the surrender by the mother to the grandfather of the control of the person and education of the child and of the mother's rights and duties to the child, and that such consideration was against public policy and void.
The learned trial judge after the hearing thinking
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himself bound by the case of Humphrys v. Polak, sustained this defence and dismissed the action, but on further consideration as a member of the court of appeal to which the case had been carried agreed with the rest of the court in allowing the appeal and directing judgment to be entered for the plaintiff for the amount of the overdue annuity.
From this latter judgment this appeal was taken to this court, and while reliance was placed upon the case of Humphrys v. Polak referred to, it was strongly pressed upon us that the only consideration for the payment of the annuity to the widow was the agreement by her to the appointment of the grandfather as guardian of the child and that such a consideration was bad and a contravention of public policy as involving a necessary conflict between her interest and her duty as the child's maternal guardian.
I fully agree with the judgment of Mr. Justice Russell, speaking for the whole court, that the transaction attempted to be, at any rate partially, impeached in this case was considering the relationship, ages and means of the several parties to it "the most natural and commendable proceeding that could be thought of in the interests of the child/' and that the guardianship of the child which was insisted upon by the grandfather was "desired merely as a guarantee that the child would finish her education at the convent." I also agree with the Supreme Court of Nova Scotia that the case of Humphrys v. Polak, before referred to, has little or no bearing upon the only point to be considered in this case.
It must be always borne in mind that the contract or agreement sought to be avoided in part by the defendant
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here was a family arrangement and one agreed to be, on the whole, of a most natural and commendable kind. On the one hand we have a grand- father, stated to be a wealthy man, and on the other an only child of his only son who was dead and whose widow, the plaintiff, was in delicate health and without any means of support for herself and child except her own earnings. Everything that her deceased husband had left was included in the sum of $500 realized from the sale of his furniture. She herself, after her husband's death, had gone to her people in the United States taking, of course, her young child, then not a year old, and was living with her parents. They were all Roman Catholics', and the grandfather was very desirous that his only grandchild should be educated in a convent somewhere in Canada. The daughter-in-law, as can be gathered from the correspondence, contemplated going to Boston as soon as her health permitted to study nursing. She
hoped to make a good nurse, work hard and give poor Will's little girl a good education.
Now it was not a good education such as is generally understood in Boston, that is a good public school education, that the grandfather desired for his grandchild. He wanted her to have such an education and training as is imparted in the convents of Halifax and Montreal, of which he knew something and which included a religious education in that branch of the Christian religion to which he belonged.
From the evidence it appeared that at and from the time of his marriage till his death the defendant's son was an invalid and "absolutely dependent on his father." The grandfather recognized his moral responsibility towards his grandchild and was eager and
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anxious to discharge it, but not unnaturally desired that so soon as the child was old enough to enter the convent as a boarder, mother and child should come to Canada and place the child in one of the convents named by him
and allow her to remain there until she had finished her education.
In his letter which forms the basis of the contract he goes on to say:
And after you place her in either convent, I will allow yourself $500.00 per annum paid quarterly in advance so long as I can do so whilst you are self-dependent. If you think Ruth is too young to be placed in a convent now, you can keep her where she is for a while, but I require that she will be placed in either convent not later than the first of September, 1898, where she is to remain until her education is finished. I will pay all her necessary bills for her education at either convent until she has finished her education, and after she has finished her education, I will allow her a sum yearly to keep her respectably until she is of age, and then I will make a suitable provision for her, but for all this I require to be appointed her guardian, as a guarantee that her education shall be continued in the convent until she has finished it; you see I have no desire to part you from your child, as you can live in either place with her, or in any other place you may wish. I merely wish to do what I consider is for her welfare; she will be taken care of in a convent, as well as you can take care of her. When you were sick some one else had to take care of her, and if you go to Boston you will have to leave her behind you for some one else to take care of her.
Now it seems to me to be plain that this family arrangement proposed and subsequently carried out involved the coming of mother and child to Canada and the education of the latter in a selected convent, the right of the mother to accompany and remain in the same city where the child was placed and where she could during the convent vacations look after the child and expend for its benefit the allowance agreed to be paid by the grandfather "to keep her respectably until she was of age." So far from separating mother and
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child the letter clearly contemplated their being together.
You see (he says) I have no desire to part you from your child as you can live in either place with her or in any other place you may wish" * * * "For all this (he continues) I require to be appointed her guardian as a guarantee that her education shall be continued in the convent until she has finished it."
The arrangement contemplated, as I say, the abandonment of the project at one time entertained by the mother of studying nursing in Boston so as to enable her to maintain and educate the child there and instead the maintenance and education of the child in a named religious faith and in a named convent in Canada with the mother's presence near the child so as to enable her to discharge the many parental duties in vacation as well as in term which are required by a child in a convent at a mother's hands. Parental pride seemed to have had naturally a strong controlling influence with the grandfather in suggesting the family arrangement now sought in part to be avoided.
For my part I can see nothing in that family arrangement to condemn and very much entirely to commend. The substantial motive prompting the grandfather's action was the obtaining of a legal guardianship in himself which should be a guarantee of the maintenance of a system of maintaining and educating his grandchild, mixed with that was the parental pride which moved him to provide for his daughter-in-law's support and avoid the possible scandal of the widow of the only son of a rich man being compelled to resort possibly to some menial employment for her support which would entail separation from the child. The mother in consequence of the arrangement changes her residence from one country to another, abandons her contemplated study
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of nursing, forgoes the right she would otherwise have to the earnings of the child when and during the time the latter should become capable of earning, satisfies the natural parental pride of the defendant by ensuring alike the maintenance of the mother and the maintenance and education of the child in a manner consistent with their relations to a wealthy grandfather, and this without any surrender of the natural duties owing from the mother to her child beyond those involved in the transference to the grandfather of the legal guardianship under the Nova Scotia statute.
If all these family arrangements were indeed a mere cloak to hide and cover up an improper attempt to contravene the policy of the law, as by a natural guardian selling her right as such to another for a consideration, or a mother formally abdicating alike her rights over and her duties towards her child for a personal benefit to herself the argument against the validity of the arrangement so far as it so attempted to contravene such policy would be irresistible.
Only a feeble attempt was made to suggest such a state of matters here and from what I have already said it will be seen that in my opinion the basis of the arrangement as a whole was one bona fide for the benefit of the child which not improperly involved, considering the extreme youth of the child and under the circumstances of the case, provision for the maintenance of the widow.
The facts shew that for years the arrangement continued to be loyally carried out by both parties and there is nothing on the face of the record or suggested to us why it should now be declared invalid. Such a declaration would be most unjust to the widow as she
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could not by any possibility now be placed in the position she occupied with respect to earning her own living by nursing or otherwise, and it seems to me would also be unjust to the child.
The appeal should be dismissed with costs.
Idington J. (dissenting).—However commendable the intentions of the parties to the arrangement out of which this action has arisen the arrangement is wanting in the necessary legal form or substance to constitute a contract upon which to found an action such as this.
The simple contract it evinces requires for its support a consideration moving from the person seeking to enforce the promise.
The only consideration moving from the respondent to induce the appellant to make the promise relied upon was that which he so tersely put (before this poor mother who shrank so long as she could from yielding to the hard necessity) of surrendering the custody of her child, and in order to accomplish that, of petitioning the probate court to appoint him alone as guardian.
If the common law right of custody did not confer on a mother ample and efficacious authority in regard to the custody of her fatherless child the statute certainly did. R.S.N.S. ch. 115, sec. 4, is as follows:
On the death of the father of an infant the mother if surviving shall be the guardian of the infant, either alone, when no guardian has been appointed, or jointly with any guardian appointed by the father.
I can find no power in that court to substitute another for this statutory guardian so long as she lives.
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Section 5 enacts that in default of a guardian being appointed by father or mother or such an appointee refusing to act the court may appoint a guardian.
(2) And if the infant is fourteen the court shall appoint his nominee.
(3) But if under that age the executor or administrator of an estate the child is interested in or next of kin may apply and court appoint.
None of these seem applicable, assuming, what I gravely doubt, that the court has such power of substitution during the lifetime of the mother, especially where no estate existed and no fault to be found with the character of the mother; what was her legal position or what were her duties in that respect?
True it was urged she had herself a power of appointment under the statute, but that also is matter of the gravest doubt.
But assume it exists, what again is her position? What were her duties in exercising such power?
In making such an appointment, or bringing about such an appointment, or taking any part whatsoever in its creation, the mother as statutory guardian must be taken to be acting in discharge of her legal duty, and cannot rid herself of the obligation to discharge such duty cast upon her.
She has no more right to sell the guardianship of her child than she has to sell her child. The law has been so modified by statute in Nova Scotia as to render inapplicable some of the legal propositions contained in cases cited to us.
The point of view has been shifted a bit. The underlying principle of the cases remains untouched. A consideration consisting only in the discharge of
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such a duty is no consideration in law upon which to found an obligatory promise and claim an actionable breach thereof.
It seems to me idle to try and conjure up some other consideration than that so plainly written on the face of the correspondence in evidence, which forms such contract as there is.
It is not a case where the real consideration was doubtful, where it had to be found in the acts of the parties, and inferences had to be drawn, which might trace it out in one implication, rather than another, and if more than one existed (one being illegal but clearly severable) there might yet be found room to attribute the promise to some valid consideration, rather than impute an intention to violate public policy or morality.
In the alternative put before us there is either no consideration or an illegal consideration.
The substitution of the appellant for the respondent was all he valued.
It involved and carried with it all else, including the many things suggested by his counsel in argument, as possible considerations.
She gave him nothing else he valued. Her change of purpose as to her course of life or place of residence or habit of conduct was not stipulated for by him in any way.
He cared only for one thing and that was the mastery of the custody of the child.
How can we attribute to such a case upon the facts presented some other form of consideration than that which he who dictated the bargain specifies?
I do not assume that there was any gross impropriety in the arrangement, but when I am asked to
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find in it a necessary and legal consideration I can not do it.
I can conceive of such an arrangement being submitted to a court empowered to pass upon it as a preliminary to its adoption and being approved of and become thereby valid. In such a case (which is not this) the court might become the keeper of the conscience of the guardian in discharging her duties where interest might lead one way and duty another. I would allow the appeal.
Maclennan J.—Ï concur in the opinion of Mr. Justice Davies.
Duff J. (dissenting).—I much regret that in this case I am unable to agree with the decision of the court below. Assuming that the Legislature of Nova Scotia has, by chapter 115, R.S.N.S., invested the mother of a child whose father is dead with the power to appoint within her lifetime a guardian of its person it is clear that the mother is intrusted with that power as a trustee for the benefit of her child; and likewise with respect to any application to the court of probate for the appointment of a guardian under the fifth section of the statute, or any such application to the Supreme Court of Nova Scotia to which she may be a party, the mother in relation to her child acts in a fiduciary capacity.
Now there is a long settled principle of English law which is stated by Lord Cranworth in these words:
No one having duties to discharge of a fiduciary nature shall be allowed to enter into engagements in which he has or can have a. personal interest conflicting or which possibly may conflict with the interest
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of those whom he is bound to protect. Aberdeen Railway Go. v. Blaikie, at p. 471
That principle seems to me to apply to this case and to govern the decision of it. It can be nothing to the purpose that one be satisfied in the particular case that there has been no consciousness of wrong doing, that in fact the person occupying the fiduciary position was actuated only by a sense of duty, or that the particular arrangement was in fact as well as in intention for the benefit of the cestui que trust. The rule is a rule of public policy and is
based on the consideration that human nature being what it is, there is danger in such circumstances of the person holding the fiduciary position being swayed by interest rather than duty;
Bray v. Ford, at page 51 per Lord Herschell; therefore
It applies equally even though it be shewn that no advantage has been taken. The rule is made general in order to prevent the danger arising from the difficulty of disproving in particular cases that duty has given way to interest. See per Lord Eldon in the leading case Ex parte Lacey;
per Rigby L.J., in Lagunas Nitrate Co. v. Lagunas Syndicate.
For these reasons I think the defendant's promise to pay the sum of f 500 yearly to the mother resting upon the consideration of her undertakings respecting the education and guardianship of her child, and upon that consideration alone, is such a promise as, under our law, the courts cannot enforce.
Appeal dismissed with costs.
Solicitor for the appellant: W. H. Fulton.
Solicitor for the respondent: W. A. Henry.
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