Supreme Court of Canada
MacDonald v. MacDonald, [1976] 2 S.C.R. 259
Date: 1975-10-27
Cynthia Gay MacDonald (Plaintiff) Appellant;
and
Robert Edward Alexander MacDonald (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.
Divorce—Corollary relief—Custody—Infants not of tender years—Award of custody to father—Relevance of fault for marriage breakdown in awarding custody—Welfare of the children paramount consideration—The Infants Act, R.S.O. 1970, c. 222, s. 1.
The trial judge, in a judgment concerned solely with the issue as to custody of the three sons of the parties, in dealing at length with the evidence indicated inter alia that, though in such a marriage breakdown neither party was likely to be blameless or faultless, in his opinion the greater fault lay with appellant and that in view of the circumstances of the parties the custody of the sons should be awarded to respondent. The Court of Appeal found that the trial judge had not erred in principle and had fully exercised his discretion in considering the evidence and not failing in any way to comprehend its full impact. On further appeal it was argued that the trial judge had erred in allowing his allocation of blame for the breakdown to become a compelling factor in his award of custody and that he had been overswayed by the relative financial positions of the parties.
Held: The appeal should be dismissed.
The conduct of the parties in a marriage breakdown is a relevant factor to be considered in the trial judge’s assessment of their relative fitness to have the care and custody of the infant children of the marriage and the conduct of a spouse who has deliberately acted in such a fashion as to make impossible the continuation of life of infant children in a two parent family is relevant to the fitness of that person to be the custodian of the children. It is however, only one factor and each case must be judged on its own circumstances with the paramount consideration being the welfare of the children. The trial judge rightly considered the welfare of the children as the paramount consideration and did not appear to allow allocation of fault to be a controlling factor in his award
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of custody. Under all the circumstances the trial judge rightly found that it was to the advantage and welfare of the children that they should be in the custody of their father in the home in which they had been brought up and where they could be most adequately supervised by the father and the mother. As the children were not of tender age the principle of common sense that children of tender age should be with their mother was not applicable.
McKee v. McKee, [1951] A.C. 352; Bickley v. Bickley, [1957] S.C.R. 329; Retzer v. Retzer, [1975] 2 S.C.R. 881; Talsky v. Talsky, [1973] 3 O.R. 827 revd. [1976] 2 S.C.R. 292; Re L., [1962] 3 All E.R. 1 referred to.
APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from a judgment of Zuber J. at trial awarding custody of infant children to the father. Appeal dismissed.
W.J.C. Binnie, for the appellant.
W.G. Dingwall, Q.C., and W.A. McLauchlin, for the respondent.
The judgment of the Court was delivered by
SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on June 11, 1974. By that judgment, delivered orally at the close of the argument, the Court dismissed an appeal from the judgment of Mr. Justice Zuber, delivered on January 28, 1974.
The judgment delivered by the learned trial judge in this action, which was concerned solely with the issue as to the custody of the three young sons of the parties, although delivered orally after the argument had been completed, was a rather lengthy judgment in which the effect of the evidence was very carefully and astutely examined. The very great advantage which a learned trial judge has in the disposition of a custody issue has been stressed in the Judicial Committee in McKee v. McKee, and in this Court in, inter alia, Bickley v. Bickley and Retzer v. Retzer.
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It was the opinion of the Court of Appeal for Ontario, and I share the view, that Mr. Justice Zuber fell into no error in principle and fully exercised his jurisdiction in considering the evidence not failing in any way to comprehend its full import. I, therefore, shall concern myself only with certain specific arguments made to this Court.
Counsel for the appellant argued that the learned trial judge had erred in allowing an allocation of the blame for the breakdown of the marriage to become a compelling factor in his award of custody citing the judgment of the Court of Appeal for Ontario in Talsky v. Talsky. Judgment in this Court upon an appeal in that case is being delivered contemporaneously with the judgment in the present appeal. The learned trial judge said:
Of all of the evidence that I heard I am driven to the conclusion that in 1968 and 1969 Mrs. MacDonald arrived at the position where she felt that her marriage, in her eyes, was not succeeding and did nothing to save the situation and in fact aggravated it by her subsequent conduct; that is the several occasions on which she left Dr. MacDonald. As for Dr. MacDonald, he may have been insensitive, critical or demanding but he was unaware of it and when he was aware that this may have been causing the problem he was prepared to correct it and did his utmost to save the marriage. In cases like this it is likely that neither party is blameless and that neither party is totally at fault but in the assessment of the question of the conduct of the parties, in my opinion the greater fault must be laid at the feet of Mrs. MacDonald.
It is to be noted that although Zuber J. had found the appellant Cynthia Gay MacDonald more at fault than the respondent; having made that finding, he does not seem to have used it as a factor in arriving at his ultimate conclusion. I am of the opinion that in compliance with the direction in s. 1(1) of The Infants Act, R.S.O. 1970, c. 222, the trial judge must consider the conduct of the parties but, as I have said in Talsky v. Talsky, I am of the opinion that the conduct of the parties must be considered in the assessment of the relative fitness of the contesting parties to have the care and custody of the infant children of the marriage and, as pointed out by Lord Denning in
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Re L., the conduct of a spouse who has deliberately acted in such a fashion as to make impossible continuation of life of infant children in a two-parent family is relevant to the fitness of that person to be the custodian of the said infant children. It is, however, only one factor and each particular case must be judged on its own circumstances.
The learned trial judge, immediately after the paragraph which I have quoted above, turned to what he termed, and rightly, as “the paramount consideration in the case, that is, the welfare of the children”. Therefore, I am not ready to agree that the learned trial judge allowed his allocation of fault to be any controlling factor in his award of custody.
Counsel for the appellant also stressed that the learned trial judge was overswayed by the very considerable degree of wealth which the husband possessed and which would enable him to give to the three sons a much more advantageous physical surrounding than could have been provided by the wife, and that in doing so he even under-estimated her financial resources. We were informed during the argument of the appeal that the husband had paid his wife the sum of $65,000 which was to be in full payment of her share of both the marital home and the summer cottage and in discharge of all or other claims which she had personally against her husband. Even with these changed circumstances, surely the advantage which these three young boys would have in living with their father is easily apparent. The boys will continue to reside in the home in which they have resided for some years in a neighbourhood in which they had gone to school since they first started going to school and in a home which was more than adequate for their needs. On the other hand, the wife had no specific plan as to how she would care for the children. The learned trial judge stated that in his view the wife would have to assume some employment as she could not look to any award of maintenance for the children as means of support for herself and is subject to the altered financial circumstances to which I have referred above. She
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still has no home and the purchase of a home at the present real estate prices in Toronto would so deplete her resources that she would have to seek employment. Or, if she chose to live in rented accommodation, an apartment of a size sufficient to house herself and the three boys in a style comparable to that in which they were living with their parents would entail a very large rental and again would deplete her capital. Therefore, I am of the opinion that the changed circumstances due to the moneys given by the husband to the wife in discharge of her interests still would not permit her to provide any home at all comparable to the marital home in which the parties lived with these three children which the husband has now retained and where he proposes to have the three boys living with him and with his mother.
The learned trial judge pointed out that Mrs. MacDonald, Sr., although sixty-eight years of age, was in good health, and was certainly fully capable of taking charge of the household.
Under these circumstances, I am of the opinion that the learned trial judge rightly found that it was to the advantage and welfare of the children that they should be in the custody of their father in the home in which they had been brought up and where they could be most adequately supervised by him and by his mother.
The learned trial judge was also appreciative of the fact that the infant children in this case were all boys born, respectively, in November 1960, January 1963 and November 1964. The youngest, therefore, is now almost eleven years old. They are not children of tender age and the principle of common sense often expressed that such children of tender age should be with their mother is simply not applicable. The learned trial judge in his reasons noted that the wishes of the children had been consulted and that these boys had expressed a preference to stay with their mother. The learned trial judge astutely observed that, in fact, the children had been with their mother for about a year previous to the trial. It would be only natural that a parent who had custody of his or her children for that period of time would see to it that those children expressed a preference to have such a situation continue. The learned trial judge found
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that the three boys loved both their parents and that their real desire was to live with both their parents. Such a viewpoint was much more reasonable than that of either of their parents. It is most unfortunate that in these cases the parents often do not show the good sense of the children in these most important matters.
For these reasons, I would dismiss the appeal. No costs were awarded at trial or in the Court of Appeal. I am of the opinion that it would be proper to adopt a like course and give no order as to costs in this Court.
Appeal dismissed, no order as to costs.
Solicitor for the appellant: D.H. Lissaman, Toronto.
Solicitors for the respondent: Woolley, Hames, Dale & Dingwall, Toronto.
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