DeLaurier v. Jackson, [1934] SCR 149

Supreme Court of Canada

DeLaurier v. Jackson, [1934] S.C.R. 149

Date: 1934-01-26

In the Matter of Helen (Thelma) Delaurier, an Infant Under the Age of Twenty-One Years.

Marie DeLaurier and Joseph Delaurier (Applicants) Appellants;

and

Lila Jackson and Frederick G. Jackson (Respondents) Respondents.

1933: November 29; 1934: January 26.

Present: Duff C.J. and Rinfret, Smith, Crocket and Hughes JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Infant—Custody—Parental rights—Religious faith.

Appellants applied in the Supreme Court of Ontario for the custody of their infant child who, for about ten years from early infancy, had been in the care of respondents. Appellants were Roman Catholics and respondents were Protestants and the child had become identified with respondents’ church. The application was dismissed, an appeal to the Court of Appeal for Ontario was dismissed, and an appeal was brought to this Court.

Held: In view of all the circumstances and the considerations in making the orders dismissing the application, those orders should not be disturbed.

Per Duff C.J. and Smith and Crocket JJ.: The father’s authority as to the religious faith in which his child is to be educated, however wide it may have been at common law, must now be measured by the rules of equity, which, by express provision in the Judicature Act, prevail in Ontario, and which, on an issue like the present one, recognize the welfare of the child as the predominant consideration. If the child’s general welfare requires that the father’s rights as to the religious faith in which his child is to be reared be suspended or superseded, the courts in the exercise of their equitable jurisdiction have power to override them, though in doing so they must act cautiously. Due consideration must be given to the father’s wishes, but if the court is satisfied, upon consideration of all the facts and circumstances (and though no serious misconduct of the father is proved), that those wishes conflict with the child’s own best interests, viewed from all angles—material, physical, moral, emotional and intellectual as well as religious, then those wishes must yield to the child’s welfare. (In re O’Hara, [1900] 2 I.R. 232, at 239, 241; Ward v. Laverty, [1925] A.C. 101, at 110, cited). The orders made in the present case were justified.

Per Rinfret J.: The rules of equity must prevail and a very great discretion is vested in the judge hearing the application. Having regard to all the circumstances, it cannot be said that the discretion has been wrongly exercised in this case.

Per Hughes J.: It is an equitable principle that the court may control or ignore the parental right but in so doing should act cautiously, and should act in opposition to the parent only when judicially satisfied that the child’s welfare requires that the parental right be suspended

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or superseded. As the orders herein were in their nature discretionary, and were affirmed by the Court of Appeal, there was no principle on which this Court could interfere.

APPEAL by the parents of the child, Helen (Thelma) DeLaurier, who was born on July 19, 1920, from an order of the Court of Appeal for Ontario dismissing the appeal of the said parents from the order of McEvoy J. of September 4, 1929, and the order of Kerwin J. of January 13, 1933, dismissing an application by way of originating notice, directed against the present respondents, for a writ of habeas corpus and for custody of the said child.

The material facts of the case are sufficiently stated in the judgments now reported. The appeal was dismissed with costs.

J.F. Boland, K.C., for the appellants.

J.L. Grogan for the respondents.

The judgment of Duff, C.J., and Smith and Crocket JJ., was delivered by

CROCKET J.—This is an appeal from the judgment of the Appellate Division of the Supreme Court of Ontario dismissing the appellants’ appeal from the judgment of McEvoy, J., delivered September 4, 1929, and of Kerwin, J., delivered January 13, 1933, refusing an order for a writ of habeas corpus against the respondents, and for the custody of an infant girl, Helen or Thelma DeLaurier, of whom the appellants were the natural and the respondents the foster parents.

The appellants’ motion, it appears, was made before Mr. Justice McEvoy on January 11, 1928, when, after hearing the evidence of both appellants and both respondents, and some other witnesses, His Lordship stated that the child would remain in the custody of the court in the meantime. “That will mean”, he added, “with the Jacksons for the time being”. The matter remained in that position until the delivery of His Lordship’s formal judgment on September 4, 1929, from which the appellants appealed to the Appellate Division, which, on December 11, 1929, gave them leave to move in Single Court for an order for the present custody of the child, the appeal to stand over pending the disposition of such motion. Various notices of

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motion returnable before different judges at chambers were subsequently served by the appellants, but no further proceedings were taken until June 28, 1932, when, in pursuance of an order of the late Mr. Justice Grant for the taking of further evidence before the Assistant Master, both the appellants and the respondents were further examined before that officer, and the evidence of other witnesses taken as well. The matter finally came before Mr. Justice Kerwin on December 20, 1932, when, after perusing the various orders and the evidence taken before Mr. Justice McEvoy and the Assistant Master, he concluded that he should see the parties and the child, and he therefore directed that they appear before him on January 9, the appellants after the hearing before the Master having removed to Montreal. Madame DeLaurier appeared before him in pursuance of this order and both Mr. and Mrs. Jackson, but Joseph DeLaurier was unable to attend. The three named were briefly examined, and the child interviewed, and on January 13 last His Lordship delivered his judgment refusing the application of the appellants for the custody of the infant.

The girl, Thelma, was born at Toronto, July 19, 1920. A few weeks after her birth her mother, Mrs. DeLaurier, was placed in a sanitorium for treatment for tuberculosis, and at the same time four of her children, including Thelma, were sent to a preventorium. Mrs. DeLaurier did not return to her home until February, 1922. Expecting to be confined shortly, she felt unable to look after the four children whom the authorities at the preventorium decided should be discharged from that institution. The Catholic Welfare Bureau undertook to place Thelma in St. Mary’s Infant Home, and to see that she would be looked after until after the mother’s confinement, and when she would be able herself to attend the child. It was found, however, that St. Mary’s Infant Home was quarantined for measles and the Catholic Welfare Bureau then asked the Home to place the infant with some family. At the direction of the authorities of the Home, the father took the child on February 3, 1922, to Mr. and Mrs. Jackson who conducted a boarding house for infants, and who were to be paid by the Home at the rate of $20 per month. The City of Toronto paid for the child’s maintenance for some time, and then the Catholic Welfare Bureau, but always through

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the Infants’ Home. In September, 1922, the DeLauriers were notified that the Catholic Welfare Bureau would no longer be responsible for the child’s maintenance and the Jacksons were notified by the Infants’ Home that they would receive no further payments through that institution. The child’s mother still felt unequal to looking after Thelma, and the husband thereupon made arrangements with the Jacksons for the latter to continue boarding the child at the same rate. The sum of $19 in all was paid by DeLaurier in instalments and the Jacksons then notified the parents to come and take the child, and to bring clothes for her. The parents were unable to supply the clothes and Thelma remained with the Jacksons. The father visited the child occasionally, but the mother states that she was unable to do so on account of her health, and because she was not familiar with the city.

These are the unfortunate circumstances which explain how the Jacksons were first brought into contact with Thelma when she was only 18 or 19 months old. A warm attachment seems to have grown up between them and the child, and, upon moving to Havelock, where Mr. Jackson had obtained a new position, they were allowed by the DeLauriers to take Thelma to live with them there. They remained there until 1927, when they returned to Toronto, bringing Thelma back with them, and continuing to treat her as a member of their family, as they had done during the whole period of their residence at Havelock.

The child has come to be known as Thelma Jackson, calls the Jacksons her father and mother and their son and daughter her brother and sister, although she knows that the DeLauriers are her natural parents. Both Mr. and Mrs. Jackson are Protestants and attend a United Church in Toronto, with which Thelma has become identified. She has been educated in the public schools of Toronto, where she has won honour certificates and apparently has been most happy.

The DeLauriers, who are Roman Catholics, have had fourteen children, of whom five were living with them in Toronto, one of these being a married son, whose wife and child lived also with them. Three younger boys occupied one room together in their parents’ Toronto home, and a daughter another room, which Mrs. DeLaurier explained

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she proposed Thelma, when she came back, should occupy with her. Another daughter was under treatment in a hospital. DeLaurier himself had served a sentence of two months for an offence against the Ontario Liquor Law, while one of the boys had twice been convicted of theft and another before a magistrate for some minor offence.

One thing the evidence clearly shews—that Thelma has been completely out of touch with her natural parents for a period of now over ten years and that her mother has had no contact with her since a few weeks or at most a few months after her birth.

After a careful examination of the evidence and the learned trial judge’s (Kerwin, J.) conclusion thereupon and the reasons he gives for his decision, we are satisfied that he in no manner disregarded the provisions of s. 24 of the Ontario Infants Act, upon which the appellants much rely. The effect of this section, no doubt, is that none of the provisions of that statute shall be deemed to alter whatever authority the father may otherwise by law possess as to the religious faith in which his child is to be educated. This authority, however wide it may have been at common law, must now be measured by the rules of equity, which in virtue of the express provisions of the Judicature Act prevail in Ontario as they do in England, and, in cases of this kind, recognize the welfare of the child as the predominant consideration. If the general welfare of the child requires that the father’s rights in respect of the religious faith in which his offspring is to be reared, should be suspended or superseded, the courts in the exercise of their equitable jurisdiction have undoubted power to override them, as they have power to override all other parental rights, though in doing so they must act cautiously. This, as I take it, is the effect of Lord Justice FitzGibbon’s well known exposition of the law on this subject in the O’Hara case[1].

Due consideration is, of course, to be given in all cases to the father’s wishes but if the court is satisfied in any case upon a consideration of all the facts and circumstances, as shewn by the evidence, that the father’s wishes conflict with the child’s own best interests, viewed from all angles—material, physical, moral, emotional and intellectual as well as religious—then the father’s wishes must yield to the

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welfare of the child. As to this see also remarks of Viscount Cave in Ward v. Laverty[2]. It is not a question of the father having forfeited his parental rights by serious misconduct, and it is, therefore, not necessary, in order to justify the court in ignoring the father’s or the mother’s wishes, that any such serious misconduct should be proved. It is solely a question of what is in the child’s best interests.

This is the question to which the learned trial judge clearly addressed himself after a careful review of all the evidence taken before McEvoy, J., and the Assistant Master and after himself further examining the two respondents as well as the female appellant and personally interviewing the child herself, then in her thirteenth year.

There has been no case, so far as I have been able to ascertain, where a child, old enough to form any religious convictions, has, after the lapse of such a period of time, been ordered, against her own expressed wish, from the custody of a Roman Catholic family in which it has been reared, to the custody of a Protestant family, or from the custody of a Protestant family to that of a Roman Catholic family, once settled or strong convictions in favour of either religious faith have been acquired, as well as settled affections for the family in which he or she has been reared. Viscount Cave in the Laverty case[3] and FitzGibbon L.J. in the O’Hara case[4] point out the grave risks which such an order would involve to the welfare and happiness of the child, apart from all other considerations.

The trial judge’s personal interview with the girl herself afforded him an opportunity, of which we have no doubt he fully availed himself, to test the sincerity of her feelings in these all important features.

We are of opinion that there was ample justification for the decision of the learned trial judge to refuse the order asked for in this case, and that the appeal should, therefore, be dismissed.

The appeal is dismissed with costs; the costs of the unsuccessful motion to quash (fixed at $75) to be set off against the respondents’ costs.

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RINFRET J.—This is a case where the rules of equity must prevail, and a very great discretion is vested in the judge to whom the application is made. Having regard to all the circumstances, I am unable to reach the conclusion that the discretion has been wrongly exercised in the premises, and I agree with the disposition of the case made by my brother Crocket.

HUGHES J.—On the 11th day of January, 1928, an application by Joseph DeLaurier for the custody of Helen (Thelma) DeLaurier came before Mr. Justice McEvoy, who heard evidence viva voce and, on the 4th day of September, 1929, being of opinion that the child should remain with the respondents, dismissed the application with costs. The said Joseph DeLaurier appealed to the Court of Appeal for Ontario and that court gave leave to Joseph DeLaurier to move in Single Court for an order for the custody of Helen (Thelma) DeLaurier and upon such motion to use the evidence taken before Mr. Justice McEvoy and such further evidence as might be presented and heard, and further ordered the appeal to stand over pending the disposition of the motion. Further evidence was taken before the Assistant Master on the 28th day of June, 1932, and, on Friday, the 13th day of January, 1933, Mr. Justice Kerwin heard the application of Joseph DeLaurier and Marie DeLaurier on the evidence adduced before Mr. Justice McEvoy and before the Assistant Master, and dismissed the application without costs.

Mr. Justice Kerwin deemed it advisable to see the parties and the infant. All appeared with the exception of Joseph DeLaurier, whose wife, Marie DeLaurier, stated that they were living in Montreal and that it was not possible for him to leave his position. Mr. Justice Kerwin personally questioned the infant and later gave written reasons. He found that the appellants never definitely gave up their rights to the custody of the child, or their rights to have her brought up in their own faith, namely, the Roman Catholic faith. He was of opinion that the parents had done or omitted nothing since the previous hearing to forfeit whatever rights they then had, but he was of opinion that the child, almost thirteen years of age, should remain where she was, namely, with the respondents.

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Joseph DeLaurier and Marie DeLaurier then renewed their appeal from the order of Mr. Justice McEvoy and appealed from the order of Mr. Justice Kerwin, and the Court of Appeal, on the 12th day of April, 1933, dismissed both appeals with costs.

Written reasons were not given by the Court of Appeal.

The child was born on July 19, 1920. Shortly afterwards it was found that the mother had tuberculosis and she was ordered to go to a sanitarium, and four children, including Thelma, were placed in a preventorium, where she remained until February, 1922. At that time the mother was about to be confined and the Catholic Welfare Bureau agreed to place Thelma in St. Mary’s Infants’ Home. The Home, however, was quarantined with measles and the Catholic Welfare Bureau arranged with the Home to place the baby temporarily, and they placed it with the respondents. The City of Toronto paid for the child for a while, and later the Catholic Welfare Bureau paid, but, on September 20, 1922, payments ceased. Joseph DeLaurier then made an agreement to pay the respondents four dollars per week for Thelma’s care. In the opinion of the father the child was well cared for. Joseph DeLaurier paid for a few weeks and then he was not able to pay any more, and had some negotiations with the respondents for the return of the child. Subsequently the respondents moved to Havelock and took Thelma with them. There was some correspondence between the parties and Marie DeLaurier sent a few dollars to the respondents at Havelock. The respondents later returned to Toronto and, in the month of August, 1927, Joseph DeLaurier told the respondents that he did not have any money but that he wanted the child back.

Marie DeLaurier testified that she saw Thelma in December, 1922, and again the day before Christmas in the year 1927. In the meantime she had telephoned to the respondents asking them to come to some arrangement, and at least to permit her to see the child, but that the respondents had asked her to sign adoption papers before permitting her to see the child. She testified that she had written several letters to the respondents while they were at Havelock and, on one occasion, had sent two dollars for Christmas. The respondents answered twice and then

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ceased to write. The mother was of opinion that the respondents were good to Thelma.

Lila Jackson testified that the respondents were to receive $20 per month for the care of the child, but that payments ceased in September, 1922. An arrangement was then made with Joseph DeLaurier whereby he agreed to pay $4 per week, but he paid only $19 in all. Lila Jackson testified that she then asked Joseph DeLaurier by telephone to come and take Thelma home. She finally concluded that the appellants had abandoned the child. Lila Jackson testified that she was quite healthy and that she had two children of her own, both of whom were working. She stated that in September, 1931, Thelma’s tonsils and adenoids had been removed and that she had gained nineteen pounds in weight between that date and the date of the last taking of evidence, namely, June, 1932.

The respondent, F.G. Jackson, was a mechanic. He corroborated the evidence of his wife. He stated that the question of pay for Thelma had been forgotten long ago and that the child was very dear to the respondents.

Katherine Hughes, an associate worker of the Catholic Welfare Bureau, stated that on May 27, 1922, she had visited the house of the appellants; that it was a clean, comfortably furnished eight-roomed house. Marie DeLaurier was doing the work and apparently the family was managing very well and was comfortable. The evidence shewed, however, that Joseph DeLaurier had been sentenced to two months’ imprisonment for a breach of the Liquor Control Act, and one of the boys had been before the Juvenile Court on two occasions for theft.

From the foregoing, it appears clear that the appellants were, at the time Mr. Justice Kerwin examined Thelma, practically strangers to her.

The appellants rely strongly on section 24 of the Infants Act, R.S.O., 1927, chapter 186, which reads as follows:—

Nothing in this Act shall change the law as to the authority of the father in respect of the religious faith in which his child is to be educated.

Section 21 of the Judicature Act, R.S.O., 1927, chapter 88, provides as follows:—

In questions relating to the custody and education of infants, and generally in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.

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In equity a principle was early established that the court might control or ignore the parental right but in so doing it should act cautiously, and should act in opposition to the parent only when judicially satisfied that the welfare of the child required that the parental right should be suspended or superseded.

In the present case, Mr. Justice Kerwin interviewed the infant and then dismissed the application of the appellants, and Mr. Justice McEvoy had some time before dismissed a similar application after seeing the parties and hearing their evidence. The Court of Appeal affirmed these dismissals, and, as the orders of dismissal were in the nature of discretionary orders, I do not know on what principle this Court can now interfere. The appeal, therefore, should be dismissed with costs, against which should be set off the costs of the motion to quash the appeal fixed at $75.

Appeal dismissed with costs.

Solicitor for the appellants: W.B. McHenry.

Solicitors for the respondents: Mulock, Milliken, Clark & Redman.