Supreme Court of Canada
Talsky v. Talsky, [1976] 2 S.C.R. 292
Date: 1975-10-27
Karen Elaine Talsky (Plaintiff) Appellant;
and
Simon Talsky (Defendant) Respondent.
1975: May 6; 1975: October 27.
Present: Laskin C.J. and Judson, Spence, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Infants—Custody—Appeal—Function of appellate Court.
The trial judge in awarding custody of the two infant children of the marriage to the appellant, first, treated the welfare of the children as the paramount consideration, but not the sole consideration, and second, regarded the view that children of tender years should be given to the custody of their mother not as any rule of law, but purely as a principle of common sense. The Court of Appeal decided that the judgment at trial should be reversed and awarded custody to the respondent.
Held (Spence and Beetz JJ. dissenting): The appeal should be allowed.
Per Laskin C.J. and Judson and de Grandpré JJ.: The Court of Appeal erred in concluding that the trial judge had misdirected himself. There was no manifest error by the trial judge to justify an appellate court, in a case where facts only were under consideration, disturbing the judgment at trial which should be restored. The function of an appellate court is not to retry a case.
Per Spence and Beetz JJ. dissenting: While the conduct of the parties should not be considered in an attempt to make any award of custody punitive and the paramount consideration in custody matters is the welfare of the children, none the less the conduct of the parents is a necessary and most important consideration in assessing their worth as custodians of the infant children. Upon this subject the view expressed for the Court of Appeal is to be preferred to the conclusions of the trial judge who under the circumstances gave too much weight to the principle that custody of children of tender years should be given to their mother.
[Hood v. Hood, [1972] S.C.R. 244; Sparks et al. v. Thompson, [1975] 1 S.C.R. 618; Métivier et al. v. Cadorette S.C.C., June 26, 1975, to be published; Stein et al. v. The Ship “Kathy K” et al. (1975), 62 D.L.R. (3d) 1;Re L. (infants), [1962] 3 All E.R. 1 referred to.]
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APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from a judgment of Houlden J. at trial awarding custody of infant children to the mother. Appeal allowed, Spence and Beetz JJ. dissenting.
J.J. Robinette, Q.C., and Charles B. Cohen, for the appellant.
Claude R. Thomson, and R.G. Chapman, for the respondent.
The judgment of Laskin C.J. and Judson and de Grandpré JJ. was delivered by
DE GRANDPRÉ J.—I have read with interest the reasons prepared for delivery by my brother Spence. Unfortunately, I cannot share his conclusions.
Obviously, I am in full accord with him that two basic principles must be kept in mind:
(1) due weight has to be given to the inestimable advantage of a trial judge who, in considering a custody application, has seen the parties, observed them and thus obtained an opportunity to evaluate the character of the husband and wife;
(2) the paramount consideration in custody matters is the welfare of the infants.
I also share my brother’s view that the Court of Appeal has misread the trial judgment in two respects. The learned Trial Judge
—did not treat the welfare of the children as the sole consideration rather than the paramount consideration;
—did not regard the view that children of tender years should be given to the custody of their mother as any rule of law, but purely as a principle of common sense.
The criticism expressed by the Court of Appeal on these two points is not deserved; the Trial Judge did not misdirect himself.
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These two errors of the Court of Appeal committed in a case where facts only are under consideration (in the absence of a manifest error by the Trial Judge which I cannot find here) should bring this Court to the conclusion that the trial judgment must be restored; obviously, our function is not to retry the case. This is in accordance with a very long established jurisprudence and, in my view, ends the matter. Of considerable interest is the short canvas of the major cases to be found in the dissenting opinion of Laskin J., as he then was, in Hood v. Hood at p. 250. Recent examples of the thinking of this Court on the question are to be found in Sparks and Fairfax v. Thompson at p. 624, Métivier et al. v. Cadorette, a decision of June 26, 1975, still unreported, and Stein et al. v. The Ship “Kathy K” et al.
Should we go one step further and proceed to retry the case, I still believe that the conclusion of the Trial Judge is correct:
(a) his detailed examination of the conduct of the parties on the issue of cruelty relieved him of the obligation to repeat the same facts when considering the issue of custody; this circumstance, however, does not establish that on this latter issue the judge had forgotten what he had said on the previous one;
(b) I agree with the Trial Judge that a wife who is “well nigh impossible” as a wife may nevertheless be a wonderful mother;
(c) I cannot put on the same footing the fact that the wife was “well nigh impossible” and the adulterous conduct of the mother, as in Re L.;
(d) the careful planning of the husband does not impress me more than it did the Trial Judge who, to repeat myself, had the occasion to see the witness in action;
(e) the concern which the Trial Judge expressed shows that, before coming to his conclusion, he
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had weighed all the pros and cons so that, in a case like this one where facts alone are under consideration, the conclusion reached after this study in depth must receive its full weight.
Of course, if, at a later date, the mother for whatever reason becomes less wonderful, it will always be possible to pronounce another Order in the light of the new circumstances.
I would allow the appeal and restore the judgment of the Trial Judge as to the custody of the two children and as to the sums of money payable by the husband to the wife for the maintenance and support of the children, as well as to the costs payable in the Trial Court. I would grant to appellant her costs in this Court as well as in the Court of Appeal.
The judgment of Spence and Beetz JJ. was delivered by
SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on June 29, 1973. By that judgment, the Court of Appeal allowed an appeal from the judgment of Houlden J. pronounced on July 12, 1972.
The appellant issued two actions against the respondent. The first was a petition for divorce based on cruelty and the second, the action presently under appeal, was for alimony and for custody and maintenance of the two infant children of the marriage. The respondent counterclaimed in both actions for the custody of the said infant children. The two actions were tried together and Houlden J., in his reasons for judgment, disposed of all issues.
In a very lengthy and most carefully considered judgment, Houlden J. found that the appellant as plaintiff had not established cruelty under the provisions of s. 3(d) of the Divorce Act, R.S.C. 1970, c. D-8, and therefore dismissed the petition for divorce. The learned trial judge continued his reasons pointing out that when the petitioner had failed to establish cruelty under the provisions of the Divorce Act then, of course, she would have
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failed to have established cruelty to the extent necessary to entitle her to alimony applying the definition thereof in Russell v. Russell.
The learned trial judge then turned to the issue of custody and granted custody to the plaintiff, here appellant, together with an order for maintenance fixed at the rate of $400 each for the two infant children. From that judgment, the husband as defendant appealed and the wife cross-appealed against the dismissal of her petition for divorce and action for alimony.
The Court of Appeal, in the reasons delivered for the Court by Jessup J.A., found that the cross-appeal was entirely without merit and dismissed it, then considered the present respondent’s appeal on the issue of custody and maintenance and decided that the judgment of the learned trial judge must be reversed granting custody to the defendant, the appellant before that Court and the respondent in this Court.
By leave of this Court, the wife appeals that judgment of the Court of Appeal for Ontario and asks that she be granted custody and maintenance as directed by Houlden J. in his reasons after trial.
It is the submission strongly urged by counsel on behalf of the appellant that the Court of Appeal for Ontario has failed to give due weight to the inestimable advantage of a trial judge in considering a custody application in having seen the parties, having an opportunity to observe them during the trial which lasted nine days, and an opportunity to evaluate the character of the husband and wife contesting for custody of their children. Counsel for the appellant quotes McKee v. McKee, where Lord Simonds said at p. 360:
Further, it was not, and could not be, disputed that the question of custody of an infant is a matter which peculiarly lies within the discretion of the judge who hears the case and has the opportunity generally denied to an appellate tribunal of seeing the parties and investigating the infant’s circumstances, and that his decision
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should not be disturbed unless he has clearly acted on some wrong principle or disregarded material evidence.
Statements to similar effect have been made in many cases particularly Willoughby v. Willoughby, per Cohen L.J. at p. 189, and indeed on several occasions by this Court. I cite Bickley v. Bickley, where Cartwright J., as he then was, said at p. 333:
On reading and rereading the reasons of the learned trial judge in the light of all the evidence in the record we find it impossible to say that he did not make full judicial use of the opportunity given to him, and denied to the appellate Courts, of seeing and hearing the parties; the advantage thus afforded to the trial judge is always great but peculiarly so in a case of this sort where so much depends upon the character of the parents whose claims are in conflict. It is not suggested that the learned judge misdirected himself on any question of law; and, in our respectful opinion, the Court of Appeal were not warranted in setting aside his decision that it was in the best interest of the children that they should be given into the custody of their father.
The present Chief Justice of this Court in Retzer v. Retzer, expressed similar views.
Of course, I accept such a viewpoint in dealing with an appeal in a custody case but I stress that that viewpoint must be considered together with the necessity of dealing with each one of those cases by a careful consideration of the exact circumstances in each individual case. Often only very limited assistance can be obtained from the consideration of the decisions in different cases with very different circumstances present.
The learned trial judge, in the present case, said:
Each case of this kind must be judged on its own particular facts. Counsel referred me to many authorities, and I have read them. Although these decisions are of assistance in showing how other judges have approached the facts of the cases with which they were concerned, in the final analysis I must look at the facts of the present case and determine if, in my judgment, they establish cruelty within the meaning of sec. 3 (d) of
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the Divorce Act. Upon a careful and detailed consideration of all the evidence, I am of the opinion that they do not.
Although that statement was made as to the issue of the establishment of cruelty as a basis for divorce, I am of the opinion that it is equally applicable to the custody issue.
The learned trial judge, in his reasons for judgment, dealt in a most detailed manner with the conduct of the parties from the date of their marriage up to the time of trial and came to the conclusion that the wife had not established the degree of cruelty required by the provisions of the Divorce Act to succeed in a petition for divorce or to succeed upon an alimony action, and only then turned to consider the issue of custody of the two infants. One cannot, however, consider only the learned trial judge’s reasons expressed on two pages for his decision on the issue of custody without considering the very extended reasons on the issue of cruelty for it is in the latter that he dealt with the character of both the husband and the wife and those assessments of character are, of course, all important upon the issue of custody. Firstly, I cite the learned trial judge’s statement particularly referrable to the character, using the word in the broadest sense, of the respondent husband:
The husband is a hard-working, successful, young dentist with a steadily increasing income. He is highly intelligent with a most presentable appearance. He is a devoted and affectionate father. In 1969, when the stock market turned down, he suffered some financial reverses. But, in my view, these were only temporary in nature, and I am certain it will not be long before he has these problems straightened away.
and also:
I do not propose to review all the matters which Mrs. Talsky dealt with in her two and a half days in the witness box. Suffice it to say, that I came to the conclusion, after hearing all the evidence, that the respondent was a fairly considerate husband. When his wife was ill, he seems to have been most attentive. On weekends, it was his custom to get his wife her breakfast in bed. It was his practice to take off Wednesday mornings of each week, and on these occasions, he would look after the children so that his wife could go shopping by herself. He assisted in the feeding and care of the
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children. The petitioner acknowledged that her husband was generous with his money, and in that respect, she was amply provided for. He supplied the petitioner with part-time help from time to time to assist in the household duties even though his financial situation did not warrant this expenditure. In these ways, and in many other ways, Dr. Talsky, right to the date of separation, showed himself as being thoughtful and concerned for the well-being and welfare of his wife.
The learned trial judge referred to the appellant wife, inter alia, in these terms:
The wife is a most attractive young woman. She is also very intelligent. She keeps a neat, tidy, well-organized house for her husband and family. She was able to mix well socially, and to maintain the social position that her husband expected of her. I am satisfied that the wife is equally as fond of the children as her husband, and she is a loving and affectionate mother.
And again:
I believe the petitioner has exaggerated and overstated incidents which were of little consequence. She has taken trivial matters and blown them out of all proportion to their real significance. A woman with her intelligence, if she had put her mind to it, could have easily solved the matters of which she complains. For some reason, she decided very early in the marriage that she had made a mistake and she wanted out. It is unfortunate that she bore two children to the respondent when she had this approach to her marriage, for they have gravely compounded the difficulties which exist between the parties.
I, therefore, am of the opinion that I may briefly state the learned trial judge’s conclusions as to cruelty in this fashion. The husband, although not perfect—no husbands are—was nevertheless a hard working and thoughtful husband devoted to his wife and to his children and most anxious for their physical and mental welfare, and more than able and willing to support them handsomely. The wife, on the other hand, came from a background where her mother, brother and sister had all suffered from emotional and psychiatric problems which the learned trial judge found had put the wife under a considerable strain and that under such conditions there was a greater tendency for a person to have mental difficulties. The learned trial judge, however, stated he was fully satisfied on the evidence that the wife was mentally healthy. He determined that shortly after the mar-
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riage, the wife had decided that she did not wish to continue in married life with her husband and that her one desire thereafter was to end the marriage but to have custody of the two infant children and most adequate allowances for her own support and the support of the two infants. To that end, the learned trial judge found the wife had exaggerated and overstated incidents which were of trivial significance. This tendency to exaggerate trivial and almost usual incidents of marital discord, the learned trial judge found had actually affected her credibility.
Now that was the learned trial judge’s assessment of the character of the two contesting parties when he dealt with the issue of cruelty. When he came to deal with the issue of custody, he found, and, of course, there was more than adequate evidence to support it, that both husband and wife were extremely fond of their two children. I pause to outline the family. A son, Mark Aaron, had been born on August 4, 1966, and so on the date of the trial he was almost six years of age. That boy was a normal, healthy young boy. A daughter, Susan Gay, had been born on March 11, 1969, and was at the date of the trial three years and four months old. She had had the misfortune to have been born with a dislocated hip only discovered by her mother after return from the hospital and suffered a great deal of pain and disability. She was in a cast from hip to toes for eighteen months and a heavy brace thereafter. There is no doubt that the worry and the work of the care of this infant daughter during that time did affect the mother and there is no doubt that her loving care was a considerable element in the child’s apparent normal condition at the time of the trial.
At the time of the final separation of the husband and wife, the wife took the two children with her. Thereafter, through the negotiations of solicitors, the husband vacated the large home in Thornhill which had previously been occupied by the family, allowing the wife and the two children to move back into that home which he supported completely until the trial. The learned trial judge stated:
I am completely satisfied that the children are being well looked after by the petitioner. I am fully convinced
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that she is a loving and affectionate mother, and that the children are in all respects properly provided for.
The matter of custody, of course, is governed by the provisions of The Infants Act, R.S.O. 1970, c. 222, and particularly s. 1(1) thereof which reads as follows:
1. (1) The court, upon the application of the father or the mother of an infant, who may apply without a next friend, may make such order as the court sees fit regarding the custody of the infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary or discharge the order on the application of either parent, or, after the death of either parent, of any guardian appointed under this Act, and in every case may make such order respecting the costs of the mother and the liability of the father for such costs, or otherwise, as the court considers just.
That section has been interpreted in a very large number of cases to put the paramount consideration to be that of the welfare of the infants whose custody is at issue. I need not make further reference to those cases, sufficient to say that this is the firmly established jurisprudence in the matter. Houlden J. so recognized. In fact, the learned trial judge said:
Further the paramount consideration in a custody application is the welfare of the children and there is no doubt in my mind that it is in their best interests that they remain with the mother.
The learned trial judge acknowledged that many of the matters referred to by counsel for the husband had caused him concern but expressed himself as satisfied on the evidence that the children were being well looked after at the present time by their mother, there being nothing to indicate that she was a bad mother or a poor housekeeper or otherwise unfit or incapable of looking after the children. Again, I paraphrase the learned trial judge’s conclusion on all of the issues by saying that he had found that the wife was a well nigh impossible wife but nevertheless a wonderful mother and that therefore she should have custody.
It is my view and I am of the opinion it was the opinion of the Court of Appeal for Ontario that in coming to the latter conclusion, the learned trial
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judge failed to take into account, on the issue of fitness for custody, the facts which he had found on the issue of cruelty. Section 1(1) of The Infants Act does make reference to “the conduct of the parents” and it has been a matter of very considerable debate what should be the importance given to such conduct of the parents. In Re L., the Court of Appeal of the United Kingdom considered the appeal from a judgment awarding a mother custody of two infant daughters, four and six years of age. The mother had committed adultery with a married man and after the separation went to live near the man. The break-up of the home was in no way due to the father’s conduct. The mother refused to return giving as her only reason her affection for this other man. Lord Denning said at p. 3:
Of course, the discretion of a judge who has seen the parties in a case of this kind is very important, but when I read that passage, it seems to me that he has fallen into error: for, whilst a judge is right to give great weight to the welfare of the children, and indeed to make it, as the statute says, the first, and paramount consideration, he must nevertheless remember that whilst it is the paramount consideration, it is not the sole consideration. In this case whilst no doubt the mother is a good mother in one sense of the word, in that she looks after the children well, giving them love and, as far as she can, security, one must remember that to be a good mother involves not only looking after the children, but making and keeping a home for them with their father, bringing up the two children in the love and security of the home with both parents. In so far as she herself by her conduct broke up that home, she is not a good mother.
In the present appeal, one of the reasons advanced by Jessup J.A. for the reversal of the reasons of the learned trial court judge was that the learned trial judge had treated the welfare of the children as the sole consideration rather than the paramount consideration and did not have regard for the conduct of the parties as he was required to under s. 1(1) of The Infants Act. Jessup J.A. quoted the above passage from Lord Denning’s judgment In Re L.
With respect, I am of the opinion that the learned trial judge expressly stated the welfare of
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the infants was the paramount consideration and, as I have pointed out, in his reasons for judgment he actually used that phrase.
In Francis v. Francis the Saskatchewan Court of Appeal also referred, inter alia, to the judgment In Re L. Culliton C.J.S., speaking for the Court, said at p. 218:
While there may be cases in which consideration should be given to the question as to which spouse was responsible for the break-up of the marriage, such consideration should not detract from the primary concern, the welfare of the child or children. Thus, the consideration, if any, to be given to this factor depends entirely on the circumstances in each case. If this factor should be considered, any reliance thereon should never be punitive in character. When, as here, the respondent, although responsible for the break-up of the marriage, is admittedly a good mother and a fit person to have custody of the children, little, if any weight should be given to that factor, particularly when the association. which led to the break-up of the marriage has been finally and completely ended.
It is my view that the conduct of the parents should not be considered in an attempt to make any award of custody punitive to the person whose conduct the court found to be improper. Such a course would be exactly contrary to what I have said was the paramount consideration, that is, the welfare of the children, and would be using the children as a whip to beat the misdoer. On the other hand, I am of the opinion that the conduct of the parents is a necessary and most important consideration in assessing their comparative worth as custodians of their infant children. It is upon this subject I am in disagreement with the learned trial judge and agree with the view expressed for the Court of Appeal by Jessup J.A.
The learned trial judge, as I have outlined, has found that the wife was, in fact, a most immature person who had simply decided to get rid of her husband but to retain his full support for herself and their children. The husband was a very busy and successful dentist practising in suburban Toronto and well able to afford handsome alimony and maintenance payments had the wife been suc-
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cessful on those issues. After the separation and at trial he was able to outline a carefully conceived and most admirable plan for the proper care and upbringing of the two infants. It was his intention to purchase a property in the suburban area in which he was carrying on his practice and establish his dental practice on the lower floor and use the balance of the house as the residence for himself and his two infant children. In this fashion, he would be able to have every meal with his children and be immediately present at any time his attention was required. He intended to hire a housekeeper who would under these circumstances be merely a housekeeper and not particularly a children’s nurse. This was, in my view, a workable plan conceived by someone who devoted careful thought to the matter.
On the other hand, the wife, having set her sights solely on evicting her husband from her life but continuing to enjoy a full measure of support from him, had made no plans whatsoever to deal with the situation which would result when she would be unsuccessful in her petition for divorce or action for alimony.
The large home in Thornhill which the couple had occupied during the latter years of their married life was owned by them jointly and as Jessup J.A. points out, was being sold in a partition action at the time of the argument in the Court of Appeal. Therefore, the wife would have been unable to occupy that residence and it would seem she intended to take an apartment. Since she had failed in her attempt to obtain maintenance or alimony for herself from her husband, she would have been faced with the necessity of earning a living and that necessity would require her to avail herself of someone else’s aid in the actual day to day care for the children. There may be some significance in the fact that when she had moved back into the house with her husband’s consent pending the trial she had that care given the children by a series of eight or nine pregnant, unmarried girls.
It is this consideration of the conduct of the parents which illustrates the careful planning of the husband and the apparent irresponsibility of the wife which is important in determining wheth-
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er the welfare of the children would be better suited by giving their custody to the father. These factors Jessup J.A. dealt with in his reasons.
In saying what I have just said, I wish to avoid any conclusion that the very considerably greater fortune of a husband would make it almost irresistible that he should be awarded custody. If a husband has a more considerable fortune, and that is the usual situation, then he is more able to make proper and adequate provision for maintenance so that he has not any irresistable position in the contest for custody. But here, there is the established financial worth of the husband plus a carefully conceived and most workable plan for the proper care and upbringing of the children as contrasted with a haphazard future of how that care and upbringing can be properly accomplished.
There are several additional matters which are most relevant in considering the welfare of the children. Firstly, there is a well-established tendency that the custody of children of a tender age should be given to the mother. Sometimes that tendency has been put in most graphic terms. In Bell v. Bell, Roach J.A., giving judgment for the Court, said at p. 344:
There is another circumstance which in my very respectful opinion the learned judge has overlooked, or if it was present to his mind he has not given due weight to it, namely that this infant is a little girl of very tender years. No father, no matter how well-intentioned or how solicitous for the welfare of such a child, can take the full place of the mother. Instinctively, a little child, particularly a little girl, turns to her mother in her troubles, her doubts and her fears. In that respect nature seems to assert itself. The feminine touch means so much to a little girl; the frills and the flounces and the ribbons in the matter of dress; the whispered consultations and confidences on matters which to the child’s mind should only be discussed with Mother; the tender care, the soothing voice; all these things have a tremendous effect on the emotions of the child. This is nothing new; it is as old as human nature and has been recognized time after time in the decisions of our Courts.
Jessup J.A., in the Court of Appeal, quoted the learned trial judge as follows:
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In order for a Court to deprive a mother of children of tender age, the case must be very strong: Weeks v. Weeks, (1955), 14 W.W.R. 529, [1955] 3 D.L.R. 704; Bell v. Bell. [1955] O.W.N. 341; Re Doucette (1970), 3 R.F.L. 115. Rather than this being so, I believe the evidence is very strong that Mrs. Talsky is in all respects an excellent mother.
And continued:
In my view the rule that children of tender years belong with their mother is a rule of human sense rather than a rule of law as it is erronously treated by the learned trial judge; cf., Re Pittman and Pittman. It is only one factor to be considered with all the circumstances.
I am of the opinion that that criticism is not deserved. The learned trial judge did not regard the view that children of tender years should be given to the custody of their mother as any rule of law. As Roach J.A. put it, it is as old as human nature, and as learned counsel for the appellant put it in this Court, it is a principle of common sense. It is simply one of the more important factors which must be considered in the granting of custody. In the view of the learned trial judge in the present appeal, it was such a strong factor as to be well nigh conclusive. In the view of the Court of Appeal, it was outweighed by the other matters to which I have referred. Under all the circumstances in the present case and particularly in view of what I have already outlined as the careful plans of the husband for the care and upbringing of the children in his immediate presence, I am of the opinion that the learned trial judge gave too great a weight to that factor.
Another consideration is the one which quite evidently troubled the learned trial judge and which I am inclined to think he dismissed too lightly. The wife’s mother had suffered some psychiatric illness and had on several occasions been institutionalized. The wife’s brother and sister had not unlike illnesses. The learned trial judge pointed out that there was a greater tendency in a person coming from that family background to have mental conditions but concluded that the wife was mentally healthy. When the stabilizing influence of the husband was removed, then I am of the view the evidence has shown that the erratic conduct of
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the members of the wife’s family could possibly have a deleterious effect on her stability and this factor has an important influence in assessing what will be her ability in the future to be a proper custodian of her infant children. The learned trial judge used these words in his conclusion:
While many of the matters referred to by counsel for the husband have caused me concern, I am satisfied on the evidence I have heard that the children are being well looked after at the present time by their mother. (The underlining is mine.)
Although the underlining is my own, I am of the opinion that the use of those words demonstrated a certain doubt in the mind of the learned trial judge that the situation would continue and, in my view, he was reflecting the same fear that I have expressed in the above paragraph.
For all of these reasons, I would dismiss the appeal. The respondent, in his factum, simply asks that the appeal be dismissed and makes no application for an order as to costs. In so far as the judgment of the Court of Appeal dealt with the issue of custody, it made no award of costs and I am of the opinion that this Court should make no award as to costs.
Appeal allowed with costs, SPENCE and BEETZ JJ. dissenting.
Solicitors for the appellant: Atlin, Goldenberg, Cohen, Gamble & Armel, Toronto.
Solicitors for the respondent: Campbell, Godfrey & Lewtas, Toronto.
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