Supreme
Court of Canada
Boykowych
and Gadziala v. Boykowych, [1955] S.C.R. 151
Date:
1955-01-25
Magda
Boykowych and Albert Gadziala (Defendants) Appellants;
and
Michael
Boykowych (Plaintiff) Respondent.
1954: December 6, 7; 1955:
January 25.
Present: Kerwin C.J. and
Rand, Kellock, Locke and Cartwright JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR ONTARIO.
Divorce—Evidence—Adultery—Standard of Proof required
in Ontario—Criminal Conversation—Admission by one alleged
adulterer not in presence of other—Admissibility
against latter where no objection raised by him.
In a suit by a husband for
divorce, joined with a claim against the co-respondent for damages for
alienation of his wife’s affections and for
criminal conversation, the husband testified his wife had admitted to him
having committed adultery with the co-respondent. The allegation was denied by
both defendants. The jury found adultery to have been committed and assessed
damages. On appeal it was contended that the trial judge had not properly
instructed the jury as to the degree of proof necessary to prove adultery; that
in an action for criminal conversation an even heavier onus rested upon the
plaintiff than in an action for divorce; that the trial judge should have
instructed the jury that any admission, even if made, was no evidence against
the co-respondent and, in any event, that it was not evidence of the truth of
the statement allegedly made.
Held: 1. That the standard of
proof required in proceedings brought under the Divorce Act (Ontario) R.S.C.
1952, c. 85, as to the commission of a marital offence, where no question of
the legitimacy of offspring arises, is the same as in other civil proceedings,
that is a preponderance of evidence, and the trial judge’s charge complied with the
rule laid down in Smith v. Smith and Smedman [1952] 2 S.C.R. 312.
2. That since counsel for
the co-respondent had not objected that evidence as to the alleged admission by
the wife was not admissible as against his client, he could not be heard on
appeal to complain of non-direction on that point. Nevill v. Fine Art and
General Insurance Co. [1897] A.C. 68 at 76 applied.
Per Kerwin C.J. and Cartwright
J.: No substantial wrong or miscarriage of justice occurred in connection with
the alleged admission of the wife.
Per Locke J.: In view of the
position adopted by counsel for the co-respondent at the trial it was not open
to him to complain of the admission of the evidence. Scott v. Fernie Lumber
Co. 11 B.C.R. 91 at 96 approved in Spencer v. Field [1939] S.C.R. 36
at 42.
APPEAL by defendants from
the judgment of the Court of Appeal for Ontario affirming the judgment of
[Page 152]
Anger J. on the answers of
a jury, in an action for divorce and damages for alienation of affections and
criminal conversation.
R.F. Wilson, Q.C. for the
appellant, Magda Boykowych.
J.J. Robinette, Q.C. for
the appellant, Albert Gadziala.
G.T. Walsh, Q.C. and W.C.
Cuttell for the respondent.
THE
CHIEF JUSTICE:—The respondent Michael
Boykowych brought an action in the Supreme Court of Ontario for the dissolution
of his marriage with his wife Magda and, by an order of a member of that Court,
joined in the action a claim against Albert Gadziala for damages (a) for
alienation of his wife’s affections and (b)
for criminal conversation with his wife. The action was tried with a jury who,
in answer to questions submitted to them, found that adultery had been
committed between the defendants and fixed the damages at $2,500. Having
answered the first two questions dealing with these matters, the jury, by
reason of the trial judge’s direction, did not make
any finding as to alienation of affections or damages therefor. In accordance
with these findings a judgment nisi was pronounced dissolving the
marriage and the respondent was awarded $2,500 damages and the costs of the
action as against Gadziala.
Appeals
by the defendants were dismissed by the Court of Appeal for Ontario on
September 18, 1953. Gadziala immediately served notice of appeal to this Court
and an order was made approving his security for costs. The defendant wife took
no steps to appeal or to ask leave to appeal, apparently considering that she
was barred from so doing under the decision in Harris v. Harris.
By
order dated November 9, 1953, the judgment nisi for divorce was made
absolute and the marriage dissolved. On December 3, 1953, the wife’s appeal from that order
was dismissed by the Court of Appeal who, however, gave her leave to appeal
therefrom to this Court. Her appeals and Gadziala’s appeal from the Court of Appeal
order of September 18, 1953, came on for argument together before us when it
was pointed out that the wife’s appeal from the
[Page 153]
judgment
of December 3, 1953, would raise merely the question as to whether that
judgment was the order the Court of Appeal should have made. As our powers
would be limited to deciding that point, it was deemed advisable that we should
exercise the jurisdiction given us by s-s. (1) of s. 41 of the Supreme Court
Act to give leave to appeal from any final “or other judgment” and which jurisdiction was
conferred by an amendment in 1949 subsequent to the decision in the Harris case.
Such leave was thereupon granted.
In Smith
v. Smith & Smedman this Court decided that by
virtue of the English Law Act, R.S.B.C. 1948, c. 111, the law in force
in British Columbia in divorce and matrimonial causes is The Divorce and
Matrimonial Causes Act, 1857 (Imp.), as amended by 21-22 Vict. c. 108, and
that under that law proceedings in divorce in that province are civil and not
criminal in their nature and the standard of proof of the commission of a
marital offence, where no question affecting the legitimacy of offspring
arises, was the same as in other civil actions, i.e., a preponderance of
evidence. The same rule applies in Ontario under the Divorce Act (Ontario) R.S.C.
1952, c. 85.
Applying
that test to the present appeal, the trial judge charged the jury that the onus
or burden of proof was upon the plaintiff to establish that adultery took place
by a preponderance of credible evidence. His subsequent remarks contain nothing
to detract from that statement and in fact he added that “caution is always necessary
before finding that it was committed”.
In my opinion the trial judge’s charge was correct and
therefore the wife’s appeals to this Court
should be dismissed with the usual order as to costs in the case of a married
woman.
An
additional question was raised by the appellant Gadziala. The plaintiff
testified that his wife had admitted to him having committed adultery with
Gadziala. This was denied by the wife, but the point is made that the trial
judge should have instructed the jury that any admission, even if made, was no
evidence against Gadziala, and, in any event, that it was not evidence of the
truth of the statement allegedly made. The trial judge did neither of these.
The decision of this Court in Welstead v. Brown was relied
[Page 154]
upon by
the respondent, but in the view I take of the matter nothing need be said about
it except that it must not be pressed too far. Having considered all the
evidence, I am of opinion that the provisions of s-s. (1) of s. 28 of The
Judicature Act, R.S.O. 1950, c. 190, apply since there was no substantial wrong
or miscarriage of justice. The appeal by Gadziala should be dismissed with
costs.
RAND
J.:—This is an appeal by both
the respondent and the co-respondent in an action for divorce and criminal
conversation. For the respondent the substantial ground urged was that the
charge was inadequate as to the degree of proof necessary to establish
adultery. I agree with the reasons given by Roach J.A., speaking for the Court
of Appeal, in his rejection of that ground. Although the charge, in this
respect, was somewhat spare, what was stated was accurate and, if anything,
more favourable to the respondent than was required.
The
respondent’s appeal must, therefore,
be dismissed, but I think it desirable to add a few observations on the
criticism by Roach J.A. of certain language in the judgment of Dixon J. (now
C.J.) in Briginshaw v. Briginshaw, quoted in part in Smith
v. Smith and Smedman, to this effect:—
Except
upon criminal issues to be proved by the prosecution, it is enough that the
affirmative of an allegation is made out to the reasonable satisfaction of the
tribunal. But reasonable satisfaction is not a state of mind that is attained
or established independently of the nature and consequence of the fact or facts
to be proved. The seriousness of an allegation made, the inherent unlikelihood
of an occurrence of a given description, or the gravity of the consequences
flowing from a particular finding are considerations which must affect the
answer to the question whether the issue has been proved to the reasonable
satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by
inexact proofs, indefinite testimony, or indirect inferences.
Roach
J.A. comments in these words:—
With
respect I prefer to state the proposition thus, that the nature of the fact in
issue rather than the gravity of the consequences flowing from a finding that
the fact has been proved is the determining factor which requires the tribunal
to be charged as Cartwright J. says, and as I agree, it should be charged.
The proposition thus stated avoids what I respectfully suggest would appear to
be a conflict between the proposition as stated by Cartwright J. and the
fundamental principle that the tribunal in reaching its decision should be
guided by the evidence alone and not by the results of its finding.
[Page 155]
But
what is the “nature” of the fact in issue? That
fact may have physical, religious, moral, ethical, social, legal or other
characteristics and implications and its “nature”, in the sense in which acts are
weighed and judged by a community, cannot escape the influence of most of these
constituent senses of the civilized human intelligence by which judgment is
made. The physical act in question here, in the absence of the other qualifying
factors, would be denuded of its significance to the law; and it is only in
relation to these norms and the consequential effects of their operation that
its character or nature can be fully apprehended. Our everyday judgments are
reached after weighing circumstances on the scales of experience, but in the
presence of these characterizing consequences; and the heavier they are, the
clearer must be the evidence to tip the scale into persuasion. This is by no
means the same as permitting one’s
decision on a fact to be affected by a belief, say, as to the nature of a
particular punishment annexed to it or by taking into account the latter as
itself an item of the circumstances. But to say that the degree of social
consequence does not indirectly reflect the quality and characteristics of the
act given it by these factors and thus influence the degree of proof we demand
for decision seems to me to contradict our daily experience.
The
ground raised on behalf of the co-respondent is that certain oral admissions by
the respondent which the husband testified to have been made to him and which,
admissible against the wife, were not evidence against him, had not been the
subject of a direction to the jury to that effect. To this there are two
answers: a repetition of the evidence of these statements was brought out in
cross-examination of the husband by counsel for the co‑respondent; and no
request was made to the trial judge to give any such direction, although ample
opportunity had been afforded counsel to do so. On this latter point it is
sufficient to cite Thompson v. Fraser Companies Ltd. following what was said in
Nevill v. Fine Art & General Insurance Co., by Halsbury, L.C. at p.
76; and there are no circumstances here calling for a discretionary indulgence
to the co-respondent.
[Page 156]
It
seems to be uniformly accepted that such admissions cannot be used against the
co‑respondent: Harris v. Harris; Morton v. Morton et
al. In Welstead v. Brown, Cartwright J.,
speaking also for Taschereau and Locke, JJ., on the authority of the Aylesford
Peerage case, held similar statements
by a wife to be admissible and this was referred to by Roach J.A. as
supporting the admission of those made in this case. But there, the wife, as a
witness, had confirmed her admissions, which thereupon became evidence of
consistency and so far corroborative. I do not take that decision as an
authority here. I may observe, also, that it should be kept in mind that to the
hearsay rule there are special exceptions in pedigree cases and that it is
unsafe to rely upon them in other proceedings.
The
appeal of the co-respondent must, likewise, be dismissed, and in both cases,
with costs.
KELLOCK
J.:—In my opinion, the charge of
the learned trial judge is not open to the objection that it does not comply
with the decision of this Court in Smith v. Smith and Smedman. I therefore think that
the appeal of the female appellant fails.
As to
the appeal of Gadziala, what is complained of is failure on the part of the
learned trial judge to charge the jury on that issue with respect to the
evidence of the respondent as to admissions made to him by his wife, in respect
of which counsel for Gadziala cross‑examined. Whether or not counsel went
beyond what is allowable within the principle followed in Gabriel v.
Eliatamby, need not be determined,
as no objection was made on behalf of Gadziala to the learned judge’s charge. In the light of
the judgment of Lord Halsbury L.C., in Nevill v. Fine Art and General
Insurance Company, at 76, the appellant is
not entitled to a new trial. The appeal should be dismissed with costs.
LOCKE
J.:—In this action the
respondent claimed a divorce from his wife on the ground of her adultery with
the appellant Gadziala and damages against the latter for
[Page 157]
alienation
of her affections and for criminal conversation. The joinder of these causes of
action was authorized by an ex-parte order made under the powers
conferred by Rule 1 of the Matrimonial Causes Rules. Upon the issues raised by
the pleadings, the jury found in favour of the respondent and the appeals made
to the Court of Appeal were dismissed.
There
was ample evidence upon which, if they chose to believe it, the jury might
properly find that the wife had committed adultery with the appellant Gadziala.
The
appeal of Gadziala is based upon the failure of the learned trial judge, when
charging the jury, to instruct them as to the admissibility and the relevance
of evidence given by the respondent at the hearing as to admissions made to him
by his wife.
The
respondent gave evidence that she had orally admitted to him that she had
committed adultery with Gadziala and had referred to the latter as her real
husband. The wife and the appellant Gadziala were each represented by counsel
and while, of course, there could be no objection to the evidence on behalf of
the wife, counsel for Gadziala did not object that it was either wholly
inadmissible as against Gadziala or at least admissible only for a limited
purpose. The respondent, a Ukrainian who spoke broken English, was thereafter
cross‑examined by counsel for Gadziala and was asked what he had intended
to do with the room in his house which had been occupied by Gadziala up to the
time when the latter moved elsewhere, and to this question the answer made was:—
My
wife moving one back (sic) in his same place, and I say “what is the idea?”, and my wife says, “I am going to sleep in the
same place where my true husband sleep”,
and I said, “Who is your husband?” and she said, “Albert Gadziala.”
Later
the respondent was questioned, apparently on the issue of alienation, whether
he had been happy with his wife until the time the respondent had moved away,
to which he answered:—
I
am not happy because my wife say I am not husband; Albert Gadziala her husband.
How am I going to be happy that time? (sic) My life is broke—breaking to pieces.
No
objection was made to either of these answers as being not responsive to the
question.
[Page 158]
Both of
the appellants gave evidence, both denying the allegations of adultery, and the
wife denied having made the admissions to which reference has been made above.
When
the learned trial judge delivered his charge to the jury, he commenced by
informing them as to the nature of the issues which they were required to
consider. In charging them upon the issue between the respondent and his wife
as to his right to a divorce, he said, referring to the evidence, that the respondent
relied in part on his wife’s admission that she had
slept with Gadziala and that she had said that the latter was her husband.
After reviewing the evidence directed to that issue, he charged the jury upon
the issue of criminal conversation and alienation of the wife’s affections. In the course
of this portion of the charge no reference was made to the admission of the
wife.
After
the jury had withdrawn, counsel were asked if they had any objections to the
charge. Counsel for Gadziala objected to part of the charge but said nothing on
the question of the admissibility or the effect of the admissions by the wife
to which I have referred.
In a
situation such as arose at the trial, it was an obvious disadvantage to the
appellant Gadziala that the causes of action asserted against him should be
tried together with that asserted against the wife. There is, however, nothing
in the record to suggest that any application was made prior to the hearing for
a severance or a direction that there be separate trials. Any risk that the
joinder entailed was assumed by the appellant Gadziala. I think that the proper
inference to be drawn from the course of the trial and the failure to draw the
attention of the trial judge to what is now complained of as non-direction is
that counsel for Gadziala was willing to have the issues against the latter
decided upon the evidence as it stood, relying upon the denials of both appellants
as to the truth of the alleged admissions.
In
these circumstances, it is, in my opinion, not open to the appellant Gadziala
to complain of the alleged non-direction. I think the principle to be applied
is that referred to by Duff J. (as he then was) in Scott v. Fernie Lumber
Co. at p. 96 where, referring
to the long standing rule
[Page 159]
which
holds a litigant to a position deliberately assumed by his counsel at the
trial, that learned judge said:—
The
rule is no mere technicality of practice; but the particular application of a
sound and all important maxim—that litigants shall not
play fast and loose with the course of litigation—finding a place one I should expect,
in any enlightened system of forensic procedure.
The
rule thus stated was approved in the judgment of the majority of this Court in Spencer
v. Field.
As the
objection on the part of the appellant Gadziala is as to non-direction, the
principle stated by Lord Halsbury L.C. in Nevill v. Fine Art and General
Insurance Company, is, in my opinion, also
applicable.
I would
dismiss these appeals with costs.
CARTWRIGHT
J.:—The nature of this action
and the orders granting leave to appeal to the appellant Magda Boykowych are
described in the reasons of my Lord the Chief Justice.
The
grounds of appeal relied upon in the Court of Appeal are summarized in the
reasons of Roach J.A. as follows:—
1.
That the learned trial judge erred in his charge to the jury as to the degree
of proof necessary to prove adultery.
2.
That there was insufficient evidence to prove adultery, and the jury’s finding of adultery was
perverse.
3.
That evidence of admissions of adultery made by the wife, not in the presence
of the defendant Gadziala were not admissible as against him, and the trial
judge erred in not so directing the jury.
Before
us counsel for the appellants relied chiefly upon the first and third of these
grounds.
As to
the first ground of appeal, the applicable law is concisely stated in the
following paragraph in the judgment of my brother Locke, speaking for the
majority of the Court in Smith v. Smith and Smedman at 330:—
The
question we are to determine in the present matter is restricted to the
standard of proof required in divorce proceedings in British Columbia, where
the issue is as to whether adultery has been committed. No question affecting
the legitimacy of offspring arises. The nature of the proof required is, in my
opinion, the same as it is in other civil actions. If the court is not “satisfied” in any civil action of the
plaintiff’s right to recover, the
action should fail. The rule as stated in Cooper v. Slade, is, in my opinion,
applicable.
[Page 160]
In my
opinion there is no difference between the law of British Columbia and that of
Ontario in this matter, and the fact that in the case before us a claim for
damages for criminal conversation was joined with that for divorce does not
alter the standard of proof required. The charge of the learned trial judge in
so far as this first point is concerned appears to me to have been a sufficient
statement of the law.
As to
the second ground of appeal, the relevant evidence is summarized in the reasons
of Roach J.A. and I agree with his conclusion that it was sufficient to support
the jury’s finding that adultery had
been committed.
As to
the third ground of appeal, the respondent testified:—(i) that after he had given Gadziala
notice to quit and Gadziala had moved out, the respondent’s wife went to sleep alone in
the room which Gadziala had previously occupied and said to the respondent:—“Don’t bother me no more. You are not my
husband. My husband is Albert Gadziala”;
(ii) that on the same occasion she said:—“I lay down and I put my back in the
same place as my husband sleep—Albert Gadziala”; (iii) that after his wife
had gone to live in the same house with Gadziala she telephoned him and said:—“I want to tell you
something. Don’t bother me any more
because my husband be Albert Gadziala. I live with him and I sleep with him
like man and wife.” The appellant wife denied
having made any of these statements. The appellant Gadziala was not present
when they were said to have been made.
The
evidence of the respondent that these statements were made was, of course,
admissible for all purposes as against the appellant wife. In my opinion, it
was admissible against the appellant Gadziala but for a limited purpose only,
that is as forming part of the res gestae and constituting relevant
items of circumstantial evidence accompanying and of assistance in explaining
the acts of the appellant wife in leaving her husband’s bed and in leaving his home and
going to live in that of Gadziala. The evidence appears to me to fall within
the reasoning of the judgment of the majority of the Court in Welstead v.
Brown, at pages 19 and 20,
dealing with the first of the
[Page 161]
two
grounds on which the statement of the plaintiff’s wife in that case was held to be
admissible although made in the absence of the defendant.
As this
evidence was, as against Gadziala, admissible for this limited purpose only, it
was the duty of the learned trial judge to make this clear to the jury and
particularly to point out to them that if they believed the statements were
made they were not to take them as direct evidence of the truth of the
statement of fact that the appellant wife had slept with Gadziala. With the
greatest respect, I am unable to agree with the view of Roach J.A. that the
learned trial judge adequately performed this duty. However, notwithstanding
the failure to give a proper direction on this point, on a consideration of the
whole record, I agree with the conclusion of my Lord the Chief Justice that
there was no substantial wrong or miscarriage.
I would
dispose of these appeals as proposed by my Lord the Chief Justice.
Appeals dismissed with
costs.
Solicitors for the
appellant, Magda Boykowych: Day, Wilson, Kelly, Martin & Morden.
Solicitors for the
appellant, Albert Gadziala: Chappell, Walsh & Morrison.
Solicitors for the
respondent: Jackson & Cuttell.
[1952] 2
S.C.R. 312 at 332.
[1930]
S.C.R. 109 at 118.