McLennan v. McLennan, [1925] SCR 279

Supreme Court of Canada

McLennan v. McLennan, [1925] S.C.R. 279

Date: 1925-03-10

Grace Tytus McLennan (Plaintiff Appellant;

and

John S. McLennan (Defendant) Respondent.

1925: February 17; 1925: March 10.

Present: Anglin C.J.C. and Idington, Mignault, Newcombe and Rinfret JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA

Appeal—Final judgment—Substantive matter—Pleading—Action on separation agreement—Defence—Breach of conditions—Reply—Excuse for breach—Scandalous charges—Custody of infant.

The Supreme Court of Canada entertained an appeal from a judgment confirming an order by a judge in chambers to strike out as scandalous and irrevelant a paragraph of the plaintiff's reply to the defence pleaded.

By a separation agreement the husband undertook to pay his wife an annual sum by monthly instalments and it was provided that the wife should be given the custody of their son but that his father should be allowed to see him with reasonable frequency and should be consulted as to, and satisfied with, his up-bringing. To an action by the wife for overdue instalments of her annuity breach of the condition as to the son was pleaded. In a paragraph of her reply the plaintiff set up facts which were scandalous and vexatious if not material and sought to justify such breach by alleging that she had become aware since the agreement was made that the character and conduct of the defendant was such that she would not be justified in taking his advice as to, or permitting him to associate with, their son on account of the bad influence that would likely result therefrom. On application of the defendant a judge in chambers struck out this paragraph from the reply as scandalous and irrelevant and the court en banc confirmed his order affirming the judgment of the Supreme Cour of Nova Scotia ([1925] D.L.R. 277).

Held, Idington J. dissenting, that such order was properly made; that the reply alleging the husband's bad character is no excuse for a breach of the conditions in the agreement; and that the only way in which she can avail herself of such a matter would be by producing a judgment or order of the court under the Custody of Infants Act giving her the custody of the son free from the father's right of access.

Held also, that she cannot in this action claim such judgment or order from the court. Order XIX, rule 16, of the court rules.

APPEAL from a decision of the Supreme Court of Nova Scotia[1] affirming an order of a judge in chambers which struck out a paragraph of the reply to the defence pleaded.

The material facts are stated in the head-note.

Jenks K.C. for the appellant. A Court of Equity will not enforce a provision in a separation agreement affecting the interests of young children if the moral welfare of the

[Page 280]

children will be endangered thereby. 16 Hals. 449; In re Besant[2]; Besant v. Wood[3].

By the general law as to contracts if one party by his neglect or default prevent performance of a condition precedent that is equivalent to performance by the other. Hotham v. East India Co.[4]; Jefferson v. Peskell[5].

The cases cited by Mr. Justice Ritchie are distinguishable. In Duryeav. Bliven[6] no excuse was pleaded for not allowing the visits of the husband as stipulated in the agreement. In Muth v. Wuest[7] the husband was to be allowed to visit the children weekly but the wife's action in taking them abroad for six months, without necessity, was held to be a good defence to an action for payment of her allowance.

Lafleur K.C. and J. McG. Stewart for the respondent. The appellant rests her case entirely on the authority of Besant v. Wood3 in which the court exercised its jurisdiction, as it was bound to do, in the best interests of the child.

The breach of the condition by the wife justified the husband in refusing to be longer bound by the contract. Hochster v. De La Tour[8]; Withers v. Reynolds[9].

The judgment of the majority of the court (the Chief Justice and Mignault, Newcombe and Rinfret JJ.) was delivered by

Jenks K.C. for the appellant.

Lafleur K.C. and J. McG. Stewart for the respondent.

Newcombe J.—The parties are husband and wife who are living apart; the wife, under an informal separation agreement made in July, 1921, and evidenced by correspondence set out or referred to in the pleadings, claims as plaintiff to recover $3,854.14, being the sum of the monthly payments of $833.33 for the months of April, May, June and July, 1924, thereby conditionally promised by the husband to the wife, and for interest upon the aggregate amount at 5 per cent for the periods during which the respective payments were withheld. The agreement is admitted, and by its terms it is agreed that the parties shall,

[Page 281]

without prejudice to the rights of either, live apart, and that the husband will make to the wife an allowance at the rate of $10,000 per annum for herself, and $2,500 per annum on account of their son while he is living with his mother, "upon the following understanding and conditions." Follows a statement of these terms and conditions, the first of which is that the payments shall be made in substantially equal monthly instalments; by clause 3 it is provided that the son, who was, at the time of the making of the agreement, under eight years of age, should be in the general care and custody of his mother, and supported and maintained at her expense, but that

the general conditions, the people in whose care he is placed, other than Mrs. McLennan, his education, the place or country where he shall be, etc.,

should be satisfactory to his father. Moreover, it was provided by clauses 4 and 5 that Mr. McLennan should have an opportunity to see his son with reasonable frequency, and for periods of reasonable duration and at reasonably convenient places; that the terms of the agreement, so far as it concerns the son, should be subject to reconsideration upon his reaching the age of eight years, and that nothing in the agreement should prejudice the rights of either party as to their son at that time. Other terms and conditions were also stipulated, and the agreement concludes with a provision that in case of any material decrease or increase in Mr. McLennan's income, the amount of the allowance may, after six months' notice, be reconsidered upon the footing that the amount intended for Mrs. McLennan is approximately one-third of his income. Then follow the words

otherwise this agreement shall, as long as the understanding and conditions are observed by the respective parties, continue in force until the death of either party, except that when their son John shall have reached the age of eight years, the arrangements, financial and otherwise, with regard to him, shall be subject to reconsideration, and the rights, of neither party shall be prejudiced by anything in this agreement.

The defendant pleaded in answer to the statement of claim among other defences paragraphs 3, 4, 5 and 9 which read as follows:

3. In breach of the said agreement referred to in paragraph 2 of this defence, the plaintiff has neglected and refused to consult with the defendant as to the general conditions where, or the people in whose care the said John S. McLennan, Jr., was or was to be placed, his education, and the place of country in which he was or should be.

[Page 282]

4. In further breach of the said agreement referred to in paragraph 2 of this defence, the plaintiff has refused to afford to the defendant an opportunity to see the said John S. McLennan, Jr., with reasonable frequency or at all, or at reasonably convenient places or at all, or for period's of reasonable duration or at all, but that the said plaintiff at all times during the continuance of the said agreement refused to permit the said defendant to see the said John S. McLennan, Junior.

5. In further breach of the said agreement set forth in paragraph 2 of this defence, the plaintiff has refused to reconsider the terms of the said agreement in so far as the same concern the said John S. McLennan, Jr., when the said John S. McLennan, Jr., attained the age of eight years, and the said plaintiff has notified the defendant in writing that she the said plaintiff will not at any time reconsider the terms of the said agreement in so far as the same concern the said John S. McLennan, Jr., or permit the defendant to see him.

9. The defendant further says that he was on the 20th day of June, 1919, duly appointed guardian of the said John S. McLennan, Jr., by the Court of Probate at Sydney, in the county of Cape Breton, and that the plaintiff unjustly and unlawfully detains the said John S. McLennan, Jr., and refuses to permit the defendant to see him or to communicate with him and further neglects and refuses to consult the defendant in relation to the upbringing or education of the said John S. McLennan, Jr., or otherwise.

The plaintiff by the third paragraph of her reply, which refers only to the paragraphs quoted, alleges that the character and conduct of the defendant is such that the plaintiff would not be justified in consulting him or in affording him an opportunity to associate with their son or to reconsider the terms of the agreement, because of the bad influence which this would be likely to exert upon the boy, and therefore that the plaintiff is excused

notwithstanding the said agreement, in neglecting and refusing to consult with the defendant, and in refusing to afford the defendant an opportunity of associating with the said John S. McLennan, Jr. (their son), and in refusing to reconsider the terms of the said agreement as alleged, such consultation, association and reconsideration having been made impossible

by reason of the defendant's bad character and conduct. I do not quote in the terms alleged the charges against which the motion was directed because they are admittedly scandalous and vexatious if not pertinent; and moreover, as the words have been stricken out by the court below as scandalous and vexatious, and as the judgment of this court will not restore them, they ought not to be republished.

The defendant applied to Chisholm J. in chambers to strike out the third paragraph of the reply upon the following grounds:

[Page 283]

1. That the allegations contained and set forth in the said paragraph 3 of the reply herein are unnecessary, scandalous and untrue, and would tend to prejudice, embarass and delay the fair trial of this action.

2. That the said allegations are frivolous and vexatious.

3. That the said allegations constitute degrading charges which are irrelevant to the issue, and are in their purport prejudicial to the reputation of the defendant.

4. That the said allegations do not, nor do any of them, constitute an answer at law to the defence filed herein or to any part thereof.

The defendant's affidavit was read in support of the motion in which, by paragraphs 2 and 3, he deposed that every one of the allegations set forth in paragraph 3 of the reply is contrary to fact, scandalous and untrue, and moreover that the plaintiff falsely stated and circulated each and every one of the allegations therein set forth on different occasions prior to the making of the separation agreement. The learned judge in chambers was of the view that the promises by the respective parties to the agreement were mutually dependent; that the payments promised to the plaintiff were to be made upon condition that the defendant should have reasonable access to his son and should be consulted with respect to him; that the plaintiff could not approbate and reprobate the contract, and therefore that the pleading in question was not relevant, and not an answer to the defendant's allegations, and should be struck out. The appeal was heard by the court en banc consisting of Ritchie E.J. and Rogers and McKenzie JJ. The two first named agreed with Chisholm J.; they held that the pleading was not relevant, afforded no answer to the defence and was scandalous and unnecessarily offensive. Rogers J. concluded his judgment with the observation that

the suggestions which the plaintiff desires to spread upon the pleadings with wholly unnecessary display or vulgarity are in my opinion as scandalous in the legal sense as defendant swears they are in fact, and they must be struck out as affording no answer to the case set up by the defendant.

McKenzie J. dissented, holding that the facts pleaded by paragraph 3 of the reply, if true, constituted a good answer to the defence, although they might be scandalous and regrettable; he reached his conclusion upon review of two cases, In re Besant[10], and Besant v. Wood[11], considering, as I apprehend, that the facts alleged by the

[Page 284]

reply would be material in determining the right to the custody of the infant.

The allegations of the pleading in question are introduced by the words "the plaintiff says that it having come to her knowledge that the character of the defendant is," (followed by the statements alleged to be scandalous), and concluded with the submission that the plaintiff is therefore justified in her refusal to comply with the stipulated conditions. The order of Chisholm J. contains a recital that upon the hearing of the motion he was pleased to reserve his decision, and that subsequently, having pronounced it, the plaintiff moved to amend the words last quoted by adding immediately after the word "knowledge" the words "after the making of the said agreement," and the order proceeds thus:

said amendment being allowed; but notwithstanding the allowance of such amendment, upon motion it is ordered and adjudged that paragraph 3 of the plaintiff's reply herein be and the same is hereby struck out as being scandalous and irrelevant and as disclosing no answer to the defendant's defence herein.

From this it follows that the amendment which is said to be allowed never became effective, because the pleading was struck out by the same order which allowed it; but the amendment, such as it is, becomes of no material consequence when it is considered that the pleading, even as amended, would be satisfied by proof that the alleged knowledge came to the plaintiff immediately after the making of the agreement. The date of the agreement was 28th July, 1921, and it appears from the statement of claim that it was not until April, 1924, that the plaintiff ceased to receive the stipulated allowances. Therefore upon the pleadings the case must be considered on the assumption that although the plaintiff was aware of the alleged vice in her husband's character and conduct at a time immediately following the making of the agreement, 28th July, 1921, she was not disposed on that account to rescind the agreement or to renounce the payments which had been thereby promised to her, and which had been undertaken and made only conditionally upon her affording to her husband reasonable opportunities of intercourse with their son, and consultation as to his upbringing and education and the arrangements which should be made for him after he became eight years of age. The agreement, it will be perceived, is not

[Page 285]

only strictly conditional but it is expressed to continue in force only

so long as the understanding and conditions are observed by the respective parties.

If Mrs. McLennan knew the facts which she alleges when the separation agreement was made she could not now set up her knowledge for the purpose of avoiding the conditions subject to which the promise, upon which she claims, was given, and she is in no better position if, having acquired the knowledge which she possesses after the making of the agreement, she continued to abide by it and to receive the payments, as she did for many months. There is no question involved in the case as to the $2,500 a year payable on account of the son; that annuity has apparently been paid? the action is brought solely for the benefit of the wife who pleads for her personal advantage the knowledge which she claims to possess.

The Besant cases are material, not to justify the reply, but because they enunciate a principle upon which the court proceeds in the application of agreements between husband and wife affecting the custody of infants. It is there laid down that one of the parties might so misconduct himself or herself that a Court of Equity would refuse to enforce specific performance at his or her instance. The Master of the Rolls[12] referring to the Act of Parliament, 36 V. c. 12, s. 2, an enactment which is reproduced in the revised statute of Nova Scotia, (1923) The Custody of Infants Act, c. 138, s. 5, says:

As I read that statute, it refers to an agreement between the father and mother, and to that extent says that they may agree—it says no deed shall be void. It appears to me there entirely to confirm: the view of the law which I think is the correct view, but it does introduce a proviso that the court shall not enforce the agreement as regards the children unless it be to the advantage of the children.

And, at page 629, having stated that before the Act of Parliament the covenant which the husband had made committing the custody of his children to his wife was void by the policy of the law, but that afterwards it became a covenant controlled by the Act, he proceeds to say:

It is a covenant, though it is not to be enforced by the High Court, unless the court is of opinion that it would be for the benefit of the infant that it should be enforced. The deed therefore stands precisely in the same position as if the words of the Act of Parliament had been put into

[Page 286]

the deed that she shall have the custody unless the court takes the custody away. That is really the contract between the parties. She knew he could not covenant absolutely by law, he could not give away absolutely and forever the custody of these children, and there was always a power in the court to intervene and take them away, and that being so, and the court having intervened-, how can I say that that act of the court is a breach on his part of the covenant, because he happened to be of the same opinion as to the custody of the infant as the court? The covenant being a covenant subject to the interference of the court, and the interference having been made, it does not appear to me to be possible for her to say that is a breach of covenant on his part which will destroy the effect of the deed or prevent his enforcing it.

It is thus the interference of the court in appropriate proceedings, not the will or knowledge of either party to the agreement, which may be pleaded to justify non-compliance with the terms which have been made competent to the parties by the legislature. If Mrs. McLennan were alleging a judgment of the court denying the rights of her husband as defined by the conditions of the agreement, there would be a question for the opinion of the court appropriate to be considered at the trial; but upon the case as it stands, if, as contended on her behalf, the promise made by her husband upon which she sues does not depend upon performance of the conditions, it is nothing less than scandalous that she should introduce the allegations pleaded by the third paragraph of her reply; while if, as was the view of the court below, the defendant's promise and the plaintiff's promises, the latter expressed as conditions, are inter-dependent, it would appear that the reply is defective for lack of an averment of any determination of the court to interfere with the performance of the agreement; and, when the wife is endeavouring to recover the payments stipulated by the agreement and at the same time refusing to perform the conditions upon which the promise was made, she is in conflict with well established principles.

Moreover, the appellant cannot, by her reply, claim for the benefit of her son that the court should interfere with the father's right of custody, or order that the conditions of the agreement respecting the son are not to be enforced. If that be the object of the reply it offends against Order XIX, Rule 16, and is bad for that reason; it would appear indeed that if the reply is designed to be useful for any purpose it is to invoke the jurisdiction of the court to take away

[Page 287]

that measure of intercourse, control or custody which by the agreement of the parties was to remain with the father, and in that view it constitutes a departure. It is no answer of course for the appellant to plead that the respondent is such a bad man that a contract made with him is not binding or may be ignored. While the contract by its express terms requires that the conditions respecting the boy shall be observed, it is by implication of law a further term that the court may for the advantage of the boy otherwise order, and the appellant can be excused from performance of the conditions only by showing an order of the court to justify her neglect or refusal to comply with them.

Rogers J., in his judgment, outlines the provincial practice; he refers to the revised statute above cited respecting the custody of infants; it provides that the mother may have access to her infant child, subject to such regulations as the court or judge deems proper; or that the infant may, by authority of a court or judge, be delivered to the mother and remain in her custody or control, or may, if already in her custody or under her control, remain therein until he attain his majority, or such age as the court or judge may direct, subject to such regulations as regards access by the father or guardian and otherwise as the court or judge may deem proper; the learned judge indicates the procedure under this statute as apt for the purpose of enabling the court to exercise its authority with regard to the operation of an agreement between husband and wife for the custody and control of their infant offspring. It is by this means that the legislature in Nova Scotia has provided for the determination directly of such questions as the apppellant attempts by her reply to bring forward collaterally. If Mrs. McLennan be not content that her husband shall have the limited opportunities to converse or associate with his son which the separation agreement provides for, she may invoke the statutory jurisdiction of the court, but paragraph three of her reply serves no purpose except that of scandal and vexation and is in both senses of the word impertinent.

In the result I find myself substantially in agreement with the learned judges who constitute the majority of the court below and I would dismiss the appeal with costs;

[Page 288]

execution to be limited in a manner corresponding to that directed by the judgment of the court below.

Idington J. (dissenting).—There is an implication, binding I think, upon the respondent that he should be (at least from the time when the separation agreement in question was entered into), a person whose habits and principles were such that in law he would be entitled to have access to his son, and a voice in the direction of his training and education, and continue worthy of such confidence and trust.

If, on the contrary, his conduct, habits and principles were, at the time of said agreement being entered into, or thereafter, such that in law he might, by the court having to pass thereupon, be debarred from either the custody of his son or access to him, or any right to direct, or have a voice in the direction of, his training or education, then the appellant had the right to reply, in the sense so indicated, and thus answer and avert the assertion of the conditions respondent sets up by way of debarring her of her rights under the agreement in question, and the pleading in question should not, in such alleged circumstances, have been struck out.

It is absolutely necessary in a case such as presented to protect the appellant's rights under the separation agreement.

However I can conceive that the pleading as first presented, as many do, goes further than necessary, but a pleading so interpreted and entitling appellant to adduce evidence thereunder excusing her from the non-observance of the condition respondent sets up as a release from his said agreement, should be allowed plaintiff as she is in law entitled, I submit, to set up if the facts warrant it.

It is for the learned trial judge to guard against abuse of the rights plaintiff has to set up the reply.

I agree so thoroughly with the reasoning of the Honourable Mr. Justice McKenzie in the appellate court below, that I need go no further than to say that I think this appeal should be allowed with costs throughout.

Appeal dismissed with costs.

Solicitor for the appellant: N. A. McMillan.

Solicitor for the respondent: H. P. Duchemin.