Frame v. Smith

Frame v. Smith
Collection
Supreme Court Judgments
Date
1987-09-17
Report
[1987] 2 SCR 99
Case number
18164
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.
On appeal from
Ontario
Subjects
Action
Family law
Notes
SCC Case Information: 18164
Decision Content
Frame v. Smith, [1987] 2 S.C.R. 99
Richard Hugh Frame Appellant
v.
Eleanor Margaret Smith and Johnston Smith Respondents
indexed as: frame v. smith
File No.: 18164.
1986: March 20; 1987: September 17.
Present: Dickson C.J. and Beetz, McIntyre, Chouinard*, Lamer, Wilson and La Forest JJ.
*Chouinard J. took no part in the judgment.
on appeal from the court of appeal for ontario
Practice ‑‑ Motion to strike ‑‑ Family law ‑‑ Appellant (a non‑custodial parent) deliberately denied access to children notwithstanding court orders specifying access ‑‑ Respondents' conduct resulting in appellant's incurring considerable expense and undergoing severe emotional and psychic stress ‑‑ Whether or not appellant has a right of action based on respondents' interference with his legal right of access to his children ‑‑ Family Law Reform Act, R.S.O. 1980, c. 152, s. 69(4) ‑‑ Children's Law Reform Act, R.S.O. 1980, c. 68 (as am.), ss. 19(a), (d), 24, 35, 36, 37(1), (2), (5), 38, 39, 40 ‑‑ Ontario Rules of Practice, Rule 126.
Family law ‑‑ Custody and access ‑‑ Non‑custodial parent deliberately denied access to children notwithstanding court orders specifying access ‑‑ Denial of access resulting in appellant's incurring considerable expense and undergoing severe emotional and psychic stress ‑‑ Whether or not appellant has a right of action based on respondents' interference with his legal right of access to his children.
Richard Frame and Eleanor Smith had three children during their marriage. After their separation, the wife was granted custody, with generous visiting privileges to the husband, and more specific orders of access were later issued. The husband maintains that his former wife did everything in her power to frustrate his access to the children: she moved to distant cities without notification, changed the children's surname and religion, told them that the appellant was not their father, forbade telephone conversation with him, and intercepted his letters to them. The husband alleges he has undergone considerable expense and has suffered severe emotional and psychic distress because of this conduct and claims damages from respondents flowing from their wrongful interference with the legal relationship he had with his children.
An application to strike was granted, and was upheld on appeal. At issue here is whether the appellant has a right of action against his former spouse and her present husband for interfering with his access to his children.
Held (Wilson J. dissenting): The appeal should be dismissed.
Per Dickson C.J. and Beetz, McIntyre, Lamer and La Forest JJ.: No tort action exists. The old actions of enticement, harbouring, seduction or loss of services that gave some protection to a father's interest in his children, and which all had a distinctly pecuniary flavour, have now been abolished in Ontario by the Family Law Reform Act. This Court found the tort of alienation of affection of a spouse did not exist in Canada; such domestic matters lie outside the realm of the law altogether. Applying the tort of conspiracy here would bring about serious disadvantages and run afoul of this Court's opinion discouraging its extension. A parent probably had no right of access at common law (as opposed to custody) upon which an action could be grounded. There is no pecuniary interest involved here, and in any event, any possible interest is akin to that which would have been protected by the rejected tort of alienation of affections.
Any possible judicial initiative has been overtaken by legislative action. The Legislature intended to devise a comprehensive scheme for dealing with the issues of family breakdown and of custody and access to the children. If it had contemplated additional support by civil action, it would have made provision for this, especially given the rudimentary state of the common law. What the present action appears to contemplate is the enforcement of an order made by virtue of a statutory discretion by means of a civil action rather than by means of the remedies provided by the Act. There is no need today to supplement legislative action in this way. Indeed, to do so may well do violence to the comprehensive statutory scheme provided by the Legislature.
A breach of the statutorily authorized order in the present case cannot give rise to a fiduciary relationship on which a cause of action can be grounded. All the reasons for not permitting a tort action apply equally to an action for the breach of such an obligation. Then, too, this course of action is extremely ill‑defined and precision virtually impossible. The uncertainties surrounding this amorphous remedy have the potential to generate pyrrhic, excessive and often needless litigation. Permitting civil actions against the custodial parents cannot be said with any certainty to be in the best interests of the child, whether this be by creating a tort or by recognizing a fiduciary relationship arising out of a court order. Like the resort to fines and imprisonment permitted by the Act, these proposed remedies could encroach on the resources of the custodial parent and could cause the child to suffer from the knowledge that one parent has taken such drastic action against the other.
Per Wilson J. (dissenting): The facts as pleaded in the statement of claim, if proved, would not give rise to a cause of action based on the torts of conspiracy, intentional infliction of mental suffering, and unlawful interference with another's relationship, or on a right at common law of access to children but they would give rise to a cause of action for breach of fiduciary duty.
The torts of conspiracy, intentional infliction of mental suffering and of unlawful interference with another's relationship should not extend to the family law situation, notwithstanding the fact that the threshold circumstances necessary to them existed. Each of these torts have particularities discouraging their extension into this area but the common denominator was that their extension would not be in the best interests of the children. Little would be achieved towards encouraging the maintenance and development of the relationship between both parents and the children. Rather, their extension into this area of family law would create legal conditions tailor‑made for abuse, with the potential for petty and spiteful litigation and for extortionate and vindictive behaviour.
Appellant cannot rely on the common law as the source of his right of access. He must rely on the court order because: (a) it is doubtful that a common law right of access independent of the statutory right granted by the court exists; and (b) even if such a right had existed at one time, it could not have survived to the present day in the face of the shift in emphasis from parental rights to children's rights. Appellant does not have a civil cause of action based on the "right" of access embodied in the court order. First, it is simply not in the child's best interests to recognize the general availability of an action based on the court order given its potential for frequent litigation, thus multiplying the traumatizing effects of the marriage breakdown on the child. Second, a civil action for breach of a court order has never been recognized by our law as a method of enforcing court orders. And third, the legislature, in spelling out the enforcement mechanisms, has not provided for such an action.
Relationships in which a fiduciary obligation has* been imposed seem to possess three general characteristics:
(1) The fiduciary has scope for the exercise of some discretion or power.
(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.
(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.
These three underlying characteristics are present in the relationship under review. The custodial parent has been placed as a result of the court's order in a position of power and authority over the children with the potential to prejudicially affect and indeed utterly destroy their relationship with their non‑custodial parent through improper exercise of the power. The requisite vulnerability is present, and in practical terms, the non‑custodial parent can do little to restrain the custodial parent's improper exercise of authority or to obtain redress for it. The options open to an aggrieved non‑ custodial parent in the face of a campaign by a custodial parent to cut the non‑custodial parent off from the child are exceedingly limited.
Existing fiduciary principles should be extended to this particular family law situation. First, this cause of action arises only in the particular circumstance, that of vulnerability created by the splitting of the custody and access of children by the issuance of a court order. Second, the cause of action for breach of fiduciary duty creates a very strong incentive to custodial parents to exercise their custodial rights so as to further the best interests of their children, to recognize that their children are entitled to an ongoing relationship with their other parent and that it is a serious matter to use the authority confided in them by an order of the court to deprive their children of this other dimension in their lives. Finally, unlike the causes of action in tort, the cause of action for breach of fiduciary duty allows the court to take into account conduct of a non‑custodial parent (whether related to custody and access issues or not) which might be contrary to the best interests of children.
It is within the jurisdiction of the courts, particularly courts of equity, to prevent a cause of action from proceeding if there is any risk of injury to the children's interests. The cause of action for breach of fiduciary duty can proceed only if there is no risk that the support of the children will be impaired and no risk of a harmful conflict of loyalties arising in the children. Accordingly, not every denial of access rights will give rise to a cause of action for breach of fiduciary duty but only where a sustained course of conduct has caused severe damage to the non‑custodial parent‑child relationship to the detriment of both the non‑custodial parent and the child.
Historically, courts of equity have been willing to grant equitable relief supplementing statutory relief for a statutory wrong. The clear and compelling statutory language necessary to oust equity's broad inherent jurisdiction to give equitable relief in appropriate circumstances does not exist in any of the legislation applicable to this case. The cause of action for breach of fiduciary duty is not founded "directly upon breach of a statute" but rather is one existing independently of the statute founded "by reference to the policies reflected in the statute and standards fixed in the statute".
The remedies normally awarded for breach of fiduciary duty are the imposition of a constructive trust and the accounting of profits: neither is applicable here. Equitable compensation, however, is also available and would allow the appellant to recover not only his out‑of‑pocket expenses incurred throughout the campaign to destroy his relationship with his children but also a realistic sum for his pain and suffering which, in this case, would include compensation for the severe depression he suffered as a result of the respondents' conduct.
Cases Cited
By La Forest J.
Applied: Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; referred to: Schrenk v. Schrenk (1982), 36 O.R. (2d) 480, affirming (1981), 32 O.R. (2d) 122; Kungl v. Schiefer, [1962] S.C.R. 443; Gottlieb v. Gleiser, [1957] 3 All E.R. 715; Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; O'Byrne v. Koresec (1986), 2 R.F.L. (3d) 104.
By Wilson J. (dissenting)
Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Moore Dry Kiln Co. of Canada Ltd. v. Green Cedar Lumber Co. (1982), 37 O.R. (2d) 300; Dominion Bank v. Jacobs, [1951] O.W.N. 421; Kungl v. Schiefer, [1962] S.C.R. 443; Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452; Mogul Steamship Co. v. McGregor, Gow, and Co. (1889), 23 Q.B.D. 598; Mulcahy v. The Queen (1868), L.R. 3 H.L. 306; Wilkinson v. Downton, [1897] 2 Q.B.D. 57; Guay v. Sun Publishing Co., [1953] 2 S.C.R. 216; Radovskis v. Tomm (1957), 21 W.W.R. 658; Lumley v. Gye (1853), 2 El. & Bl. 216, 118 E.R. 749; Rookes v. Barnard, [1964] A.C. 1129; Ratcliffe v. Evans, [1892] 2 Q.B. 524; R. v. Greenhill (1836), 4 Ad. & E. 624, 111 E.R. 922; M v. M (child: access), [1973] 2 All E.R. 81; Guerin v. The Queen, [1984] 2 S.C.R. 335; International Corona Resources Ltd. v. Lac Minerals Ltd. (1986), 53 O.R. (2d) 737; Standard Investments Ltd. v. Canadian Imperial Bank of Commerce (1985), 52 O.R. (2d) 473; English v. Dedham Vale Properties Ltd., [1978] 1 All E.R. 382; Tufton v. Sperni, [1952] 2 T.L.R. 516; Varga v. F. H. Deacon & Co., [1975s <) 1 S.C.R. 39, affirming sub nom. R. H. Deacon & Co. v. Varga (1972), 30 D.L.R. (3d) 653; Reading v. Attorney‑General, [1951] A.C. 507; Attorney‑General v. Goddard (1929), 98 L.J. (K.B.) 743; Jirna Ltd. v. Mister Donut of Canada Ltd., [1975] 1 S.C.R. 2, affirming (1971), 22 D.L.R. (3d) 639; Hospital Products Ltd. v. United States Surgical Corp. (1984), 55 A.L.R. 417; H. L. Misener and Son Ltd. v. Misener (1977), 77 D.L.R. (3d) 428; Wright v. Wright (1973), 1 O.R. (2d) 337; Woodburn v. Woodburn (1975), 11 N.S.R. (2d) 528, 21 R.F.L. 179; Jones v. Jones (1970), 1 R.F.L. 295; Currie v. Currie (1975), 18 R.F.L. 47; Donald v. Donald (1973), 6 N.B.R. (2d) 665; Nayar v. Nayar (1981), 24 R.F.L. (2d) 400; Fast v. Fast (1983), 33 R.F.L. (2d) 337; Racine v. Woods, [1983] 2 S.C.R. 173; Canadian Aero Service Ltd. v. O'Malley, [1974] S.C.R. 592; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; Attorney‑General v. Sharp, [1931] 1 Ch. 121; Attorney‑General v. Premier Line, Ltd., [1932] 1 Ch. 303; Seager v. Copydex Ltd., [1967] 1 W.L.R. 923; Dawson and Mason Ltd. v. Potter, [1986] 2 All E.R. 418; Nocton v. Lord Ashburton, [1914] A.C. 932; U.S. Surgical Corp. v. Hospital Products International Pty. Ltd., [1982] 2 N.S.W.L.R. 766; Zik v. High (1981), 35 O.R. (2d) 226; Seager v. Copydex Ltd. (No. 2), [1969] 1 W.L.R. 809.
Statutes and Regulations Cited
Children's Law Reform Act, R.S.O. 1980, c. 68, ss. 19(a), (d), 24, 35, 36, 37(1), (2), (5), 38, 39, 40.
Children's Law Reform Amendment Act, 1982, S.O. 1982, c. 20, s. 1.
Custody of Infants Act 1839 (Talfourd's Act), 2 & 3 Vict., c. 54 (U.K.)
Divorce Act, 1985, S.C. 1986, c. 4., s. 16(10).
Family Law Reform Act, R.S.O. 1980, c. 152, ss. 60, 69(4).
Guardianship of Infants Act, 1886, 49 & 50 Vict., c. 27 (U.K.)
Guardianship of Minors Act, S.O. 1887, c. 21.
Judicature Act, R.S.O. 1980, c. 223, s. 25, rep. & sub. by Courts of Justice Act, 1984, S.O. 1984, c. 11, s. 109.L <E Ontario Human Rights Code, R.S.O. 1970, c. 318, as am.
Ontario Rules of Practice, r. 126.
Supreme Court of Judicature Act, 1873, 36 & 37 Vict., c. 66 (U.K.)
Authors Cited
Austin, R. P. "The Corporate Fiduciary: Standard Investments Ltd. v. Canadian Imperial Bank of Commerce" (1986‑87), 12 Can. Bus. L.J. 96.
Brown, Harold. "Franchising‑‑A Fiduciary Relationship" (1971), 49 Texas Law Rev. 650.
Burns, Peter. "Civil Conspiracy: An Unwieldy Vessel Rides a Judicial Tempest" (1982), 16 U.B.C. L. Rev. 229.
Davidson, Ian E. "The Equitable Remedy of Compensation" (1982), 13 Melbourne Univ. Law Rev. 349.
Finn, P. D. Fiduciary Obligations. Sydney: Law Book Co., 1977.
Fleming, John G. The Law of Torts, 6th ed. Sydney: Law Book Co., 1983.
Goff, Robert and Gareth Jones. The Law of Restitution, 2nd ed. London: Sweet & Maxwell, 1978.
Halsbury's Laws of England, vol. 16, 4th ed., paragraph 1215. London: Butterworths, 1976.
Heffey, Peter G. "The Survival of Civil Conspiracy: A Question of Magic or Logic" (1975), 1 Monash Univ. Law Rev. 136.
Jones, Gareth. "Unjust Enrichment and the Fiduciary's Duty of Loyalty" (1968), 84 L.Q.R. 472.
Keeton, George Williams and L. A. Sheridan. Equity. London: Sir Isaac Pitman & Sons, 1969.
Maidment, Susan. Child Custody and Divorce: The Law in Social Context. London: Croom Helm, 1984.
Mason, Sir Anthony. "Themes and Prospects" in P. Finn, ed., Essays in Equity. Sydney: Law Book Co., 1985.
McLeod, James G. "Annotation" to O'Byrne v. Koresec (1986), 2 R.F.L. (3d) 104.
Milner, Alan. "Injuries to Consortium in Modern Anglo‑
American Law" (1958), 7 Int. & Comp. Law Q. 417.
Mosberg, Clay A. Note, "A Parent's Cause of Action for the Alienation of a Child's Affection" (1973‑74), 22 Kan. L. Rev. 684.
Ontario. Law Reform Commission. Report on Family Law. Toronto: Ontario Law Reform Commission, 1969.
Restatement of the Law of Torts. As adopted and promulgated by the American Law Institute, at Washington, D.C. St. Paul: American Law Institute Publishers, 1938.
Shepherd, J. C. The Law of Fiduciaries. Toronto: Carswells, 1981.
Solomon, Robert M., Bruce P. Feldthusen and Stephen J. Mills. Cases and Materials on the Law of Torts, 2nd ed. Toronto: Carswells, 1986.
Vinter, E. A Treatise on the History and Law of Fiduciary Relationships and Resulting Trusts, 3rd ed., 1955.
Weinrib, Ernest J. "The Fiduciary Obligation" (1975), 25 U.T.L.J. 1.
Williams, Glanville. "The Foundations of Tortious Liability" (1939), 7 Cambridge Law J. 111.
APPEAL from a judgment of the Ontario Court of Appeal dismissing an appeal from a judgment of Boland J. granting an order to strike for want of a reasonable cause of action. Appeal dismissed, Wilson J. dissenting.
Stephen B. Smart, for the appellant.
Gregory Frink, for the respondents.
The judgment of Dickson C.J. and Beetz, McIntyre, Lamer and La Forest JJ. was delivered by
1. La Forest J.‑‑The issue in this case is whether the appellant has a right of action against his former spouse and her present husband for interfering with his access to his children.
Background
2. This appeal arises out of a motion to strike out a statement of claim on the ground that it discloses no cause of action. That being the case, it must be assumed, for the purposes of the motion, that the facts pleaded are true. The most salient of these are as follows.
3. Richard Frame and Eleanor Smith were formerly husband and wife and had three children, now aged 24, 19 and 18. The couple separated in 1970, and in 1971 a Manitoba court granted the wife custody of the children, with generous visiting privileges to her husband. Later orders of access were issued in Ontario in 1974 and 1975. According to the husband, however, his former wife has done everything in her power to frustrate his access to the children. She has moved between Winnipeg, Toronto, Denver and Ottawa, making access and visitation, in his words, impossible. She changed the children's surname and religion, told them that the appellant was not their father, forbade telephone conversation with him, and intercepted his letters to them. The husband alleges that as a result of his former wife's conduct he has undergone considerable expense and has suffered severe emotional and psychic distress. He claims that she and her present husband are liable for any damages flowing from their wrongful interference with the legal relationship he had with his children. Accordingly, he seeks recovery not only of his out‑of‑pocket expenses (estimated at $25,000), but of general and punitive damages in the sum of $1,000,000 and $500,000 respectively. The endorsement on the writ of summons reads as follows:
The Plaintiff's claim is for damages as a result of the defendants' failure to permit the plaintiff to exercise the right to access to his children or alternatively, damages relating to the defendants' wilful denial or refusal to permit the plaintiff from exercising his lawful right to access to his children or alternatively, damages arising from the defendants' conspiracy to commit acts in order to prevent the plaintiff from exercising his legal rights and for damages related to the plaintiff's loss of opportunity to develop a meaningful human relationship and have social companionship and contact with his children and to provide and give to the said children proper parental love, care and guidance.
4. The defendants moved for an order to have the action struck out under Rule 126 of the Ontario Rules of Practice. Considering herself bound by the similar case of Schrenk v. Schrenk (1981), 32 O.R. (2d) 122 (Ont. H.C.), aff'd (1982), 36 O.R. (2d) 480 (C.A.), Boland J. made the order. On appeal to the Ontario Court of Appeal, that court, too, considered itself bound by its earlier decision in Schrenk and dismissed the appeal.
5. The appellant then sought and was granted leave to appeal to this Court.
Possible Tort Liability
6. Despite their deep human and social importance, the interest of parents in the love and companionship of their children and the reciprocal interest of children in the love and companionship of their parents were not, at common law, accorded specific protection. The Restatement of the Law of Torts (1938), s. 699, puts the parent's common law position in these words: "One who, without more, alienates from its parents the affection of a child, whether a minor or of full age, is not liable to the child's parent." There were the old actions of enticement, harbouring, or seduction or loss of services that gave some protection to a father's interest in his children, but these actions had a distinctly pecuniary flavour. In any event, they have now been abolished in Ontario by the Family Law Reform Act, R.S.O. 1980, c. 152, s. 69(4).
7. In the United States, a separate tort of "alienation of affections" was developed to protect the reciprocal interest of spouses in one another's companionship, but from the mid‑1930's onward, it began to fall into disfavour and, along with the traditional actions already mentioned, was abolished in many of the states. It simply did not sit well in an age of "rapidly shifting husbands and wives and ever‑increasing family catastrophes"; for an account, see Alan Milner, "Injuries to Consortium in Modern Anglo‑American Law" (1958), 7 Int. & Comp. Law Q. 417, especially at pp. 435‑36. The extension of the tort in a few state courts to allow parents to sue for the loss of affection of their children received anything but universal approval; see Milner, ibid.; Clay A. Mosberg, Note, "A Parent's Cause of Action for the Alienation of a Child's Affection" (1973‑74), 22 Kan. L. Rev. 684. Opening the gates to a multiplicity of actions within the family circle and against close family friends was not viewed as an undiluted good. Indeed, in Michigan, one of the few states where this extension was made, the State legislature went out of its way to abolish it; see Mosberg, ibid., at pp. 689‑90. In Canada, this Court, in Kungl v. Schiefer, [1962] S.C.R. 443, rejected an action by a husband to recover damages for the alienation of the affection of his wife, holding that no such tort existed in Canada. In this, it followed the lead of the English courts where, in Gottlieb v. Gleiser, [1957] 3 All E.R. 715, Denning L.J. made it clear that such domestic matters lie outside the realm of the law altogether.
8. The husband in the present case also sought to rely on the tort of conspiracy but as my colleague Justice Wilson explains in her judgment, there are grave disadvantages associated with applying this tort to circumstances like the present. Further, as she notes, this Court has made it clear that it does not look kindly upon the extension of this tort, which it regards as an anomaly, see, Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452, at p. 473, per Estey J. Wilson J., in her judgment, has also adequately disposed of the possibility of other existing torts applying to the circumstances of this case. It is also doubtful, as she observes, that a parent had at common law a right of access, as opposed to custody, upon which an action could be grounded. There is no pecuniary interest here, and, in any event, any possible interest seems to be very much akin to that which would have been protected by the rejected tort of alienation of affections.
9. It would, of course, be possible for the courts to devise a new tort to meet the situation. And the temptation to do so is clearly present, for one cannot help but feel sympathy for the appellant and others in like situations. But there are formidable arguments against the creation of such a remedy. I have already mentioned the undesirability of provoking suits within the family circle. The spectacle of parents not only suing their former spouses but also the grandparents, and aunts and uncles of their children, to say nothing of close family friends, for interfering with rights of access is one that invites one to pause. The disruption of the familial and social environment so important to a child's welfare may well have been considered reason enough for the law's inaction, though there are others.
10. There are also serious difficulties in defining such a tort. At what stage and for what actions should one be able to claim interference with access? Is advice or encouragement to a child sufficient? It is notorious that free, and not always disinterested and wise advice abounds in a family setting. There are degrees of interference, of course, and some interference is malicious and some is not, but where the line is to be drawn defies specification. It seems to me that there is no clear boundary between ordinary interruptions to access and sustained, putatively actionable interference, and where the point is reached where permissible advice intended for the child's benefit stops and malicious obstruction begins is virtually impossible to divine. This is especially so because, as Alan Milner, ibid., at p. 429, has pointed out, "when there is dislike, a desire to injure is never far behind." Besides, the awarding of damages will do little to bring back love and companionship, but it may, in some cases, well deprive a child of the support he or she might otherwise obtain from a custodial parent and relatives. If, on the other hand, the action is generally limited to the recovery of expenses, it will be of little use to most parents given the costs, in time and money, of court actions. These and other practical considerations are sufficient to raise serious doubts about whether an action at law is the appropriate way to deal with this type of situation. This probably explains the reticence of the courts in finding a remedy at common law.
11. But what really determines the matter, in my view, is that any possible judicial initiative has been overtaken by legislative action. In all the provinces (and at the federal level for that matter), legislation has been enacted to deal with the modern phenomenon of frequent family breakdowns and, in particular, to provide for custody of, and access to children. In Ontario, the Children's Law Reform Act, R.S.O. 1980, c. 68, as amended by the Children's Law Reform Amendment Act, 1982, S.O. 1982, c. 20, now deals with the matter in a comprehensive manner. In particular, the courts are given the role of ensuring that issues involving custody of, and access to children are determined on the basis of the best interests of the children (see ss. 19(a), 24(1)). Numerous remedies are provided for the enforcement of orders granting custody or access. The court can give such directions as it considers appropriate for the supervision of those having custody of, or access to the children (s. 35). It may, on application, make an order restraining any person from molesting, annoying or harassing the applicant or a child in the applicant's custody (s. 36). It may also empower the applicant or someone on his or her behalf to apprehend a child to give effect to the applicant's entitlement to custody or access (s. 37(1)). In certain circumstances, it may direct the sheriff or the police to do so (s. 37(2)), and empower them to enter and search any place where they have reasonable and probable grounds for believing the child may be, and to use such assistance or force as may be reasonable in the circumstances (s. 37(5)). The court may also take steps to prevent a child from being removed from the province (s. 38). In addition to its powers in respect of contempt, the court is empowered to impose a fine or imprisonment for wilful contempt of, or resistance to its process or orders in respect of custody or access (s. 39).
12. It seems obvious to me that the Legislature intended to devise a comprehensive scheme for dealing with these issues. If it had contemplated additional support by civil action, it would have made provision for this, especially given the rudimentary state of the common law. Indeed, as we saw, the Legislature in a separate statute (the Family Law Reform Act) went out of its way to abolish all the relevant, if inadequate, remedies then existing at common law. Gray J. in Schrenk, supra, assumed that an action like the present fell within the ambit of these abolished common law remedies, and I agree that the statute shows a clear disposition not to permit recourse to the courts for civil actions of this nature. There is more here than the usual presumption that the Legislature must be taken to have known the pre‑existing law. It had acted on the basis of a Report on Family Law (1969) prepared by the Ontario Law Reform Commission.
13. In adopting this position, I am merely following the approach taken by this Court in a number of recent cases. In Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, the Court had to deal with the issue whether the repeated denial of employment on the ground of racial discrimination gave rise to a common law tort. As is the case here, a comprehensive statute, The Ontario Human Rights Code, R.S.O. 1970, c. 318, had been enacted to deal with the problem in the face of rudimentary common law development. As here too, the substance of the right was defined by the statute and an array of remedies had been devised to enforce it. Laskin C.J., speaking for the Court, at p. 189, made it clear that there was no room "to create by judicial fiat an obligation ... to confer ... [a] benefit upon certain persons ... solely on the basis of a breach of a statute which itself provides comprehensively for remedies for its breach". The present case, in my view, affords a complete parallel to that situation.
14. More generally, what the present action appears to contemplate is the enforcement of a statutory duty, or what amounts to the same thing, an order made by virtue of a statutory discretion, by means of a civil action rather than by means of the remedies provided by the Act. This Court had occasion to deal with that issue in The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. There the Canadian Wheat Board sought to recover damages against the Pool for having delivered infested grain out of its terminal elevators contrary to a statutory provision; no negligence was pleaded. The action failed. The Court flatly rejected the notion of a nominate tort of statutory breach; if the legislature wished to provide for a civil action, it held, it could do so. Any other course would simply allow the courts to choose, in no predictable fashion, to grant a civil remedy for a statutory breach whenever they thought fit. The tenor of the Court's approach may be gleaned from the following passage of the judgment of the present Chief Justice, then Dickson J., at pp. 215‑16:
The pretence of seeking what has been called a "will o' the wisp", a non‑existent intention of Parliament to create a civil cause of action, has been harshly criticized. It is capricious and arbitrary, "judicial legislation" at its very worst.
...
It is a "bare faced fiction" at odds with accepted canons of statutory interpretation: "the legislature's silence on the question of civil liability rather points to the conclusion that it either did not have it in mind or deliberately omitted to provide for it" (Fleming, The Law of Torts, 5th ed., 1977, at p. 123). Glanville Williams is now of the opinion that the "irresolute course" of the judicial decisions "reflect no credit on our jurisprudence" and, with respect, I agree. He writes:
The failure of the judges to develop a governing attitude means that it is almost impossible to predict, outside the decided authorities, when the courts will regard a civil duty as impliedly created. In effect the judge can do what he likes, and then select one of the conflicting principles stated by his predecessors in order to justify his decision.
15. There is no need today to supplement legislative action in this way. Indeed, to do so may well do violence to the comprehensive statutory scheme provided by the Legislature; see St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, per Estey J., especially at p. 721. I shall have more to say about this later. As well, when it is subsequently desired to make changes to a legislative scheme, common law accretions are difficult to deal with adequately.
16. In my view, therefore, the appellant husband has not established a proper basis for an action in tort.
Possible Fiduciary Obligation
17. Much of what I have already stated seems to me, with respect, to apply with equal force to the possibility, about which this Court invited counsel to make additional submissions, that the appellant may have an action for a breach of a fiduciary obligation arising out of the court order granting him access to the child. All the reasons for not permitting a tort action apply equally to an action for the breach of such an obligation. The Legislature created the rights of custody and access and, as we saw, provided a whole array of remedies for enforcing them, from directions for supervising access, to restraining orders against interference, to apprehending the child, if necessary by permitting entries into premises and searches by the police or the sheriff, to fines and imprisonment. Why the legislature should be thought to have intended enforcement by an action for breach of a fiduciary obligation when there is a failure to comply with an access order, when an intention to permit a tortious action will not be implied, I fail to understand. All the more so when the Legislature has taken pains to abolish all non‑statutory actions that had any obvious relevance to the matter. Indeed there are in my view stronger reasons to doubt that the Legislature would have contemplated recourse to this action. It is extremely ill‑defined and it would scarcely be one that would immediately leap to mind.
18. There is no greater clarity as to when an action for a breach of fiduciary obligation would arise than is the case respecting possible tortious action for interference with access. Even if one assumes that not every breach of the right of access can give rise to an action, at what point precisely does an action arise? As I noted in discussing a possible tort action, precision is virtually impossible in this area. The fact that the court may have some discretion in awarding damages does not alter the fact that there may be a wide area of conduct that might be thought by litigants to warrant suit. These are but a few of the uncertainties that surround this amorphous remedy. These uncertainties have the potential to generate pyrrhic, excessive and often needless litigation.
19. Permitting such an action may well be violative of the express direction of the Act that custody of, and access to children should, in situations like these, be accorded solely on the basis of the children's best interests. The Legislature may well have thought that allowing a civil action would have this effect. I might mention here that the courts will not permit violence to be done indirectly to a legislative scheme. In other contexts, not only have they refused to allow a tort action, but they have gone further and not permitted what had traditionally been permissible contractual actions; see, for example, St. Anne Nackawic, supra.
20. In sum, it is by no means certain that permitting civil actions against the custodial parents can be said to be in the best interests of the child, whether this be by creating a tort or recognizing a fiduciary relationship arising out of a court order. Resort even to fines and imprisonment, which is permitted by the Act, has been described as not "entirely appropriate"; see James G. McLeod, "Annotation" to O'Byrne v. Koresec (1986), 2 R.F.L. (3d) 104, at p. 105. That is because these may encroach on the resources of the custodial parent and because the child may suffer from the knowledge that one parent has taken such drastic action against the other. This applies, and in some respects with greater force to a legal action. Damages can impose a far greater financial burden than the fine of up to $1,000 which may be imposed under the Act (s. 39(1)). Furthermore, though the imprisonment of one parent at the behest of the other may be damaging to the child, litigation by one against the other over a protracted period may well be even more damaging.
21. For these reasons, I cannot accept that a breach of the statutorily authorized order in the present case gives rise to a fiduciary relationship on which a cause of action can be grounded.
Conclusion
22. No possible basis for a cause of action having been presented, I would dismiss the appeal with costs.
The following are the reasons delivered by
23. Wilson J. (dissenting)‑‑The central issue in this case is whether the courts should recognize a common law parental right of access to children or, alternatively, a right to recover damages for interference with an order for access made by a court pursuant to statutory authority. The issue arises in the context of an application to strike out the plaintiff's statement of claim as disclosing no reasonable cause of action. Because this is the context there is no evidence in the record to support the allegations made in the statement of claim but, in accordance with well‑established principles, the facts as pleaded must for this limited purpose be taken as proved.
1. The Facts
24. In September 1962, the appellant (plaintiff) and the respondent Eleanor Smith were married in Winnipeg. In the ensuing years they had three children. The eldest, Richard, was born in 1963; Kathleen was born in 1967 and the youngest, Diane, was born in 1969. In November 1970 Eleanor Smith left the appellant to live with another man. She subsequently returned to the matrimonial home in Montréal for a brief period of time. However, she left again, ostensibly to stay with her parents in Winnipeg and to seek counselling. She took the children with her. Once in Winnipeg she instituted proceedings for their custody. At some stage‑‑it is not clear from the pleadings precisely when‑‑the appellant took similar steps in Manitoba. On August 12, 1971 a judge of the Family Court in Winnipeg awarded Eleanor Smith custody of the three children. The appellant was awarded "generous visiting privileges".
25. Some time around Februa