Kruger v. Booker

Kruger v. Booker
Collection
Supreme Court Judgments
Date
1961-01-24
Report
[1961] SCR 231
Judges
Hughes, Frank Joseph
On appeal from
Ontario
Subjects
Family law
Decision Content
Supreme Court of Canada
Kruger v. Booker, [1961] S.C.R. 231
Date: 1961-01-24
Vera Leona Kruger (Defendant) Appellant;
and
Ernest William Booker (Plaintiff) Respondent.
1960: November 14, 15; 1961: January 24.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Infants—Custody—Separation of parents—Action for divorce—Judgment nisi and order for custody—Undertaking to Court violated by mother—Subsequent agreement by parents as to custody—The Infants Act, R.S.O. 1950, c. 180, ss. 1, 2 and 3—The Matrimonial Causes Act, R.B.O. 1950, c. 226, s. 5.
The plaintiff and the defendant were married in 1943, and three children were born to them: a boy in 1945, and two girls in 1951 and 1953 respectively. In June 1956, the parties entered into a separation agreement, which provided that during their minorities the son would remain with his father and the two girls with their mother. In June 1957, the plaintiff commenced an action against his wife for the dissolution of the marriage on the ground of her adultery with Richard Kruger. A decree nisi was granted on March 5, 1958, and custody of the daughters was awarded to the defendant upon her undertaking to discontinue any associations by her with Kruger.
In September 1958, the plaintiff instructed his solicitor to apply for an order rescinding the custody order in the decree nisi and giving him the custody of all three children, on the ground that the defendant had failed to carry out her undertaking to the Court. This application was later withdrawn. On November 6, 1958, an agreement was arrived at whereby the two girls would remain with the defendant and the son with the plaintiff. The plaintiff agreed to apply for judgment absolute forthwith, consented to the marriage of the defendant and Kruger following judgment absolute and agreed that the defendant’s association with Kruger, following the judgment absolute, would not be raised by him as a ground for further application for custody of the children. The decree was made absolute on November 12, 1958. In the following month the defendant married Kruger and the plaintiff re-married.
On a further application by the plaintiff in May 1959 to vary the judgment of March 5, 1958, on the ground, inter alia, that the defendant had not adhered to her undertaking given at the trial, an order was made directing the trial of an issue as to who should have custody of the daughters. The trial judge directed that the custody of the two girls should be awarded to the plaintiff with rights of access to the defendant. The Court of Appeal, by a majority, dismissed an appeal from this order, and the defendant then appealed to this Court.
Held (Kerwin C.J. and Locke J. dissenting): The appeal should be allowed.
Per Cartwright, Abbott and Judson JJ.: The trial judge in dealing with the effect of the breach of the defendant’s undertaking to discontinue associating with Kruger failed to give due weight to the complete change in circumstances resulting from the marriage of the defendant and Kruger, and to the fact that with full knowledge of that breach the plaintiff had signed the agreement of November 6, 1958. That agreement was a proper one and in the best interest of the daughters. The express power given to parents of an infant who are not living together to enter into a written agreement as to which parent shall have the custody of the infant is not abrogated by the circumstance that an order of the Court dealing with the custody is in effect.
Proof of a very real change of circumstance would be required to warrant the Court disregarding the agreement of November 6, 1958. The evidence fell far short of shewing any such change in circumstances as would enable the Court to say that in the best interests of the daughters their custody should be taken from their mother.
It was not a question whether Kruger or the plaintiff should have custody of the girls, but rather whether they were to be brought up by their mother or their step-mother. The record was replete with evidence that the defendant was a good and affectionate mother well fitted to care for and bring up her daughters.
Per Kerwin C.J., dissenting: There was evidence that the mother breached her undertaking given to the Court and that the breach affected the welfare of the children to their detriment. The agreement of November 6, 1958, could not tie the hands of the Court in considering the position of the mother who, wilfully and flagrantly, violated her promise to the Court, and in considering what was best for the children. It was impossible to say that the mother, now married to the man responsible for the wrecking of a home and family, was a proper person to have custody of the two girls.
Per Kerwin C.J. and Locke J., dissenting: The agreement entered into by the parties on November 6, 1958, which ignored the interest of the children, was of no legal effect. While s. 2(2) of The Infants Act permits parents who are divorced to agree as to the custody of their children, this could not mean that they may do so when an order made in the divorce proceedings, whether before or after the decree absolute, is in effect. To construe it otherwise would be to say that, at the will of the parents, the jurisdiction of the Court could be ousted. The same principles applied to the exercise of the powers given by s. 5 of The Matrimonial Causes Act, under which the order for custody embodied in the decree nisi was made, as applied to the exercise of the powers given by s. 1 of The Infants Act.
It was unrealistic to suggest that in awarding custody to the mother the girls would not also be for all practical purposes in the custody of Kruger who, having married their mother, would stand in loco parentis to them. The Courts below were correct in finding that it was contrary to the interests of these children that they should be permitted to associate with Kruger.
The judges who decided this matter had rightly directed their attention to the paramount consideration in questions of custody (the welfare and happiness of the infant) to which all others yield. McKee v. McKee, [1951] A.C. 352, referred to. But if the matter were to be considered as merely a determination of the rights of the parents inter se without regard to this paramount consideration, the result would inevitably be the same. Section 1 of The Infants Act requires the courts in matters of custody to have regard, inter alia, to the conduct of the parents. Unless otherwise ordered by the court the parents are joint guardians and equally entitled to custody by virtue of s. 2. Section 3 requires that in questions relating to custody the rules of equity prevail.
There was no equitable principle which would justify an order to have these children taken from the home and custody of the father whose conduct was blameless throughout, so that they might be brought up by the defendant in the home maintained by the man whose adulterous conduct with her was the cause of the breaking up of the plaintiff’s home.
APPEAL from a judgment of the Court of Appeal for Ontario, dismissing an appeal from a judgment of Spence J. Appeal allowed, Kerwin C.J. and Locke J. dissenting.
W.B. Williston, Q.C., and R.D. Wilson, for the defendant, appellant.
Malcolm Robb, Q.C., for the plaintiff, respondent.
THE CHIEF JUSTICE (dissenting):—We had a very complete argument in this appeal at the conclusion of which I was satisfied that the trial judge and the majority of the Court of Appeal had come to the right conclusion. Further consideration has confirmed that view.
We are asked to make an order directly opposed to concurrent findings of fact. That places a heavy burden upon the appellant,—particularly in a case relating to the custody of children. However, I do not rest my judgment upon the failure of counsel for the appellant to satisfy me that both Courts below were wrong, but proceed affirmatively upon a review of all the evidence and of the reasons for judgment in the Courts below. Laidlaw J.A., who dissented in the Court of Appeal, considered that the trial judge did not give proper consideration, weight or effect to a certain agreement between the parents; that the trial judge ought to have found that there was no evidence whatsoever that the breach of an undertaking given by the mother to the Court at the trial before the Chief Justice of the High Court in any way affected the welfare of the children to their detriment; that the trial judge ought to have held that the father entered into an agreement in writing with the mother that the latter’s association with Kruger would not be raised by him as a ground for further application by him for custody of the children and that in the particular circumstances he was precluded from so doing; that the trial judge ought to have held that there is no evidence whatsoever of any circumstances subsequent to the order made by the Chief Justice whereby the custody of the two girls was awarded to the mother which in any way was detrimental to the welfare of the children or that would justify a reversal of the order made by the Chief Justice or that would support an order removing the children from the custody of their mother.
With respect I disagree with the learned Justice of Appeal. There was evidence that the mother breached her undertaking given to the Chief Justice of the High Court and that breach did and does affect the welfare of the children to their detriment. Any agreement entered into by the father was to avoid publicity, if possible. In any event such an agreement cannot tie the hands of the Court in considering the position of the mother who, so wilfully and flagrantly, violated her promise to the Court, and in considering what is best for the children. My brother Locke deals with all the circumstances in the case and I entirely agree with his reasons which I have had the opportunity of reading. I find it impossible to say that the mother, who is now married to the man responsible for the wrecking of a home and family, is a proper person to have custody of the two girls.
The appeal should be dismissed with costs.
LOCKE J. (dissenting):—This is an appeal from a judgment of the Court of Appeal for Ontario dismissing the appeal of the present appellant from an order made by Spence J. on October 22, 1959, which awarded the custody of the two younger infant children of the parties to the respondent. Laidlaw J.A. dissented and would have allowed the appeal.
The parties were married at the city of Toronto on July 16, 1943, and three children were born to them: a boy on October 21, 1945, a girl on October 27, 1951 and a girl on November 3, 1953.
On July 5, 1957, the respondent commenced an action against his wife for the dissolution of the marriage on the ground of her adultery with one Richard Kruger. The acts of adultery alleged were said to have been committed during the years 1951, 1952, 1954, 1955 and 1956, variously at the city of Toronto, at Cove Island in the District of Muskoka, and at the city of Miami, Florida. The said Kruger to whom the appellant has been married since December 1958 was named as the co-respondent. Both parties entered defences to the action.
A decree nisi was granted by McRuer C.J. on March 5, 1958, directing that the marriage be dissolved by reason of the adultery of the defendant with Kruger, unless sufficient cause be shown to the court within three months as to why the judgment should not be made absolute. A term of the formal judgment which is of importance in considering the question of custody of the two female children read:
AND THIS COURT DOTH FURTHER ORDER AND ADJUDGE that the defendant, Vera Leona Booker, upon her undertaking to this Court to discontinue any associations by her with the defendant, Richard Kruger, be and she is awarded the sole custody and control of the infants Susan Clair Booker, born on the 27th day of October, 1951 and Jennifer Lynn Booker, born on the 3rd day of November, 1953, subject however to the right of the Plaintiff, Ernest William Booker, to have access to the said infants on Saturday of each week from 9.00 A.M. to 6.00 P.M. and for three days during Easter vacation and for three weeks during summer school-vacation in each and every year.
On November 12th this decree was made absolute by a judgment delivered by Aylen J. In the following month the appellant married Kruger and the respondent married Ulrike Ehlers.
By a notice of motion dated May 8, 1959, the respondent gave notice of an application to be made before the Chief Justice of the High Court for an order varying the judgment of March 5, 1958, so as to provide that Booker should have custody of all three of the children, or alternatively for an order directing the trial of an issue as to the custody of the two younger children on the grounds that the present appellant had not adhered to the undertakings given by her at the trial, upon which she was awarded custody of the two young girls, that she had shown herself unfit to have the custody of these children and that it was not in their interest that she should have their custody and that, for all practical purposes, access to the children could not be obtained by Booker.
By order made on May 14, 1959, the Chief Justice directed that there should be a trial of an issue as to who should have the custody of the two girls, that pleadings be delivered upon this issue and that it be set down for trial before the Chief Justice during the week commencing June 15, 1959.
By a further order dated June 15, 1959, it was directed that the issue should be tried on September 8, 1959, and that the present respondent should have interim custody of the two young girls until that date, subject to any order that the judgment at the trial might make. The order contained provision for access by the mother. These children have remained since then in the custody of their father.
There was a lengthy hearing before Spence J. at which the appellant and the respondent gave evidence at length. Kruger was called by counsel for the present appellant, it was said for the purpose of submitting him to cross-examination and gave no evidence in chief. In a most carefully considered and exhaustive judgment Spence J. directed that the custody of the two girls should be awarded to the present respondent.
Section 1(1) of The Infants Act, R.S.O. 1950, c. 180, provides that the Supreme Court may on the application of the father or mother of an infant make such order as the court sees fit regarding its custody 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 and of the father. This section has been considered several times in this Court and was relevant to the issue to be determined in McKee v. McKee[1], where Lord Simonds, delivering the judgment of the Judicial Committee, said in part (p. 365):
It is the law of Ontario (as it is the law of England) that the welfare and happiness of the infant is the paramount consideration in questions of custody… To this paramount consideration all others yield.
The evidence taken at the proceedings for divorce before the Chief Justice of the High Court, and also the exhibits, were made part of the record in the trial of the issue by Spence J. by consent. In view of the fact that it is the moral as well as the physical welfare of the infants which must be considered, a thorough examination was made of the relations between the then Mrs. Booker and Kruger during the years preceding the divorce. This is not the ordinary case where a wife has been found guilty of adultery with another on a single occasion and where, after divorce, she has married some other person than the adulterer. Rather is this a case of a wife, confessedly an adulteress, marrying the adulterer who has been responsible for the breaking-up of the home.
I have read with care the lengthy record of both of these hearings and, having done so, I am in complete agreement with the conclusion of Spence J. as well as with the opinion expressed at the trial of the divorce proceedings by the Chief Justice of the High Court as to the undesirability of permitting these young girls to associate with the man who was the co‑respondent.
While the fact that there had been adultery committed by the appellant and Kruger had been established to the satisfaction of the Chief Justice, the investigation at the hearing of the issue before Spence J. properly extended to matters that had occurred in the years preceding the adultery which was admittedly committed in Florida in March of 1956.
Kruger is the son of a German father and a Russian mother and was born in Russia and brought to Canada when he was four months old. When he was about 16 years of age, he and Booker became friends and the latter, who is some 8 years older, interested himself in the boy’s welfare, lending him substantial sums of money on various occasions for the purpose of assisting him to become established in life. Over the period of years between 1951 and the spring of 1956, the evidence shows that Kruger was constantly associating himself with the respondent and his wife in their home and, until the events to be hereafter referred to, Booker regarded Kruger as a trustworthy friend of both of them and treated him as such.
During the year 1947 Booker left for Venezuela as the representative of a Canadian life insurance company and his wife lived there with him but came to Canada when each child was born. Booker returned to Toronto to live in the year 1953. As pointed out by the Chief Justice in his oral reasons for judgment, Booker devoted himself to his business and his wife appears to have felt neglected, a situation which appears to have been favourable for Kruger’s plans. On Booker’s return from Venezuela he and his wife and children lived for a while with Kruger in the latter’s home at 28 Ashley Park. In December 1954 Booker bought a house, 5 Darlingwood Crescent, and moved his family there. Relations between husband and wife became strained in the year 1955, Booker complaining of his wife being frequently out late at night and it would appear that, at least towards the end of that year, he became suspicious of his wife’s association with Kruger. Booker says that he and his wife ceased to live as man and wife in October 1955.
In January 1956 the appellant, taking the two young girls with her, moved from their home to that of her mother claiming that her nerves were very bad. They remained away until the month of March and the husband, in June 1956, received an account from the Doctors’ Hospital in Toronto for services rendered to his wife on March 14th and 15th. According to the hospital account, the diagnosis taken from the records was a threatened abortion. The wife had not told her husband that she was pregnant and he knew nothing of the matter until he received the account and, when he demanded an explanation, she refused to give it. It was while Mrs. Booker was staying with her mother that the first dispute arose between Booker and Kruger as to the latter’s association with Mrs. Booker. During the month of March 1956 Booker had telephoned one evening to the house where his wife was staying with her mother, wishing to speak to her, and was told by the mother that Mrs. Booker was going to bed early. Being suspicious, he went to the house and found that this was untrue and that his wife was out. He waited there and she returned at 2 o’clock in the morning with Kruger. A violent scene ensued, Booker assaulting Kruger. He then accused his wife of adultery with Kruger, which she denied.
Booker then decided, in an endeavour to prevent the break-up of his marriage, that it would be advisable if he and his wife and the children had a holiday together in Florida and took them there. In April 1956 Kruger also went to Florida and after a few days Booker returned to his business in Toronto. It was during the time that the wife was in Florida with the children that she admittedly committed adultery on various occasions with Kruger. The latter had been in Florida on one occasion but, unknown to Booker, made a second trip there.
In June of 1956 Booker received information to the effect that in the year 1952, when he was living in Venezuela and had come with his wife to Toronto on business, leaving her there, after he had returned she had gone on a motor trip for three weeks with Kruger, leaving the children with her mother. Believing this information which, apparently, confirmed his suspicions of his wife and Kruger, he rented a fiat and moved his wife’s belongings there, informing her by telephone to Florida that they were to live separate from each other thereafter. On the return of the wife to Toronto, a separation agreement was drawn which bears date simply June 1956 which provided, inter alia, that the boy John should remain with his father and the two girls with their mother during their respective minorities, the husband agreeing to pay a monthly amount for their maintenance. The agreement further provided that both parties should have reasonable access to the children.
In July 1956, at a time when Booker was at Cove Island with his son, he found several letters written to his wife by Kruger when she was in Florida which made it perfectly clear that while in Florida and prior to that time the two had been carrying on an adulterous relationship. Mrs. Booker was on the island when these letters, which are referred to in some detail in the judgment delivered by the Chief Justice in the divorce action, were found, and when Booker left the island taking them with him he was pursued by her in the company of Kruger, his wife using vile and abusive language to her husband in the presence of the little boy and demanding the return of the letters. Booker, however, retained possession of them and delivered them to his solicitor for safe-keeping. The wife thereafter went to the solicitor’s office while her husband was there and again used abusive language of the same nature without result. Thereafter admittedly she, accompanied by Kruger, broke into her husband’s house causing material damage in doing so, in an endeavour to recover the letters. The nature of the letters justified her perturbation.
For about a month after her return from Florida the appellant, together with the two younger children, lived in the flat which had been rented for her by her husband. After the separation agreement was made, the appellant and these children went to Kruger’s place on Cove Island and spent the summer there, and it was during this time that the letters had been found.
The respondent issued a writ for the dissolution of the marriage on August 23, 1956, but this action was later discontinued and the action of July 5, 1957, commenced.
The respondent had been advised after the making of the separation agreement of June 1956 that he could not object to the action of his wife in living in Kruger’s properties and was a consenting party to her going with the younger children to Cove Island. I disagree with the opinion upon which the respondent relied. The respondent took the precaution, however, of employing a man and wife to go to Cove Island and to live in the cottage to be occupied by the appellant but, shortly after their arrival there, they were moved out and during the summer Kruger occupied a room in the cottage with the appellant and the children on the frequent occasions that he was there.
The finding of the letters altered the situation. When the appellant and the children left Cove Island they, contrary to the wishes of the respondent, moved into Kruger’s house at 28 Ashley Park and lived there until the trial of the divorce action in March of 1958. The respondent was paying to his wife under the terms of the separation agreement an ample monthly allowance for the maintenance of herself and the two younger children, and the appellant claimed that he was paying Kruger a rent of $100 a month for the house. This was shown to be mere pretence, Kruger having given her the money with which to pay it. Kruger took roofs elsewhere when the appellant and the children moved into his house and, from the Fall of 1956 until the trial of the divorce action, the respondent, either alone or in the company of a witness, observed that Kruger constantly came to 28 Ashley Park in the evening, frequently leaving there in the early hours of the morning and that on many occasions the lights of the house were turned out. On January 9, 1958, for example, he arrived at 6 o’clock in the evening and stayed until after 3 o’clock the following morning. This was just two months before the trial of the divorce action.
At the time of the trial before the Chief Justice, Booker expressed his willingness to have the interim custody of the two younger children awarded to his wife, he having no facilities then to properly care for them, and it was on that footing that the Chief Justice made the order referred to. He, however, expressed his opinion as to the necessity of ensuring that the children were not permitted to associate with Kruger. In the reasons for judgment delivered orally at the conclusion of the trial, dealing with this aspect of the matter the learned Chief Justice said in part:
Unfortunately early in their married life Mr. Booker made the acquaintance of Mr. Kruger, the Co-defendant, and he made a friend of him, taking him to his house and treating him as a friend for many years. Mr. Kruger appeared to respond to this friendship but all the while was developing an affection for Mrs. Booker, and that situation developed to the extent that it is quite clear to me that he, Kruger, was seeking to get rid of Mr. Booker so that he could marry Mrs. Booker. That becomes evident in some letters that I shall refer to in due course.
And after quoting some passages from the letters indicating an adulterous relationship it was said:
In addition, Kruger had been acting as a companion, a very close companion, of Mrs. Booker for years. She was a guest at his cottage at Cove Island, where she would stay for periods of time. Mr. Booker foolishly concurred in this. He went there himself. The whole thing is a tangled mess and in some circumstances perhaps wouldn’t raise too much suspicion but in the circumstances we have here it seems to me to be perfectly clear that there was a very definite affinity between Mrs. Booker and Kruger and that Kruger was ingeniously conniving to appear to be a friend of Mr. Booker while at the same time having the sort of relationship with Mrs. Booker that these letters indicate. These letters are not the scribblings of an adolescent child; they are the writings of a mature man. The words were written contemporaneously with the events as they were developing and as they ultimately did develop, to the extent of the frequent visits to the house during the late hours. I cannot conceive that a man who desired the body of a woman as Kruger clearly showed he desired the body of Mrs. Booker could remain in the house with her night after night during these later hours for any other purpose than having sexual intercourse with her.
I think on the whole course of conduct the inference to be drawn is irresistible and I draw the inference that adultery has been proved. I hope that Kruger will realize that he has been a party to destroying a home with all the incidents that will flow from it and the handicaps these little children will have as a result of his selfish sexual desires.
Dealing with the custody of the two young girls, the learned Chief Justice said:
Now as to the custody of the children, Mrs. Booker has given an undertaking to the Court which is recorded in the evidence, and I will not make any attempt to repeat it because it was specific, and I incorporate it in my judgment as it was given; I will ask the Reporter to do so:
HIS LORDSHIP: If the custody of these two little girls is awarded to you, are you willing to undertake that any associations that have been carried on between you and your co-defendant Kruger will be discontinued:
MRS. BOOKER: Yes, sir, I do.
HIS LORDSHIP: The little girls won’t come under his influence at all?
MRS. BOOKER: No, sir.
HIS LORDSHIP: You will undertake that?
MRS. BOOKER: Yes, sir, I do.
I trust and hope that Mrs. Booker has learned by now that there are more valuable things in life than the affections of a deceitful man, a man that would steal the wife of another man. His affections are of no value to any woman, and I am anxious that these children will not come under his influence.
The reasons for judgment pointed out to both of the parties that the order for custody was not final and that if there was a change of circumstances the order might be changed. The order made permitted the parents access to the children not in their custody at defined times.
On March 10, 1958, following the granting of the decree nisi, the respondent arranged for a lease of a suitable house property for the appellant and the two girls but she refused to sign the lease or to live there.
Despite the undertaking given to the Chief Justice by her and the terms of the custody order, the appellant promptly resumed her association with Kruger and, shortly afterwards with $5,000 lent to her by him, made the first payment on the purchase of a house property in Oakville. At the trial before Spence J. the appellant admitted that she was aware that this conduct jeopardized her right to custody under the terms of the order.
On June 13, 1958, Kruger filed a notice of intervention in the divorce action. This document which did not bear the name of any solicitor said that Kruger could show cause why the judgment in the action should not be made absolute, the causes of the intervention being, inter alia, that Booker had committed perjury at the trial and that collusion existed between the plaintiff and the defendants. An affidavit made by Kruger was filed in support of the intervention, the document bearing no solicitor’s name, stating certain facts intended to indicate that the obtaining of the decree nisi had been collusive and containing also the grave charge that, to Kruger’s knowledge, Booker had been having illicit relations with Ulrika Ehlers, a woman whom he intended to marry. No attempt was ever made to support this statement. The appellant knew that this notice of intervention was to be filed and said that she informed Booker of the fact.
According to the appellant, however, Kruger had told her that he had been advised by counsel that after filing the notice of intervention it was unobjectionable for them to associate with each other. Kruger who gave evidence before Spence J. did not support this statement and Spence J. did not believe it. It appears to me to be inconceivable that any such advice had been given.
According to the respondent, he became aware of the filing of the notice of intervention in July 1958 some weeks after it had been filed. The judgment of the Chief Justice had granted temporary custody of the two girls to the wife on the conditions above mentioned and, save in this respect, the separation agreement of June 1956 remained unchanged. The respondent was aware that his wife had resumed her association with Kruger, in disregard of the order of the Court, and instructed his solicitor to apply to the Chief Justice for an order rescinding the custody order in the decree nisi and giving him the custody of all three of the children. The motion was made returnable on September 5, 1958, and was supported by two affidavits of the respondent showing that the appellant had promptly resumed her association with Kruger and in premises where the two young girls were in her custody under the judgment. This was followed by negotiations between the solicitors for the parties and a solicitor on Kruger’s behalf. It is clear from the evidence that the respondent was most unwilling to agree to his wife having custody of the two girls, knowing that she intended to marry Kruger. According to his evidence, however, being advised that his chances of obtaining an order for custody of these two children were very slight and acting on that advice, he authorized his solicitor to agree that the appellant should have the custody of the two girls. I do not agree with the opinion upon which the respondent relied. A memorandum to this effect was signed by the respondent and his solicitor and a formal agreement was drawn, though it was not signed. This was done without reference to the Chief Justice, the solicitors, apparently overlooking the fact that once the court had assumed jurisdiction over the children and had made an order for temporary custody, the provision could not be changed without its approval. The solicitor acting for the appellant, however, in advance of the application for the decree nisi informed the Chief Justice of what had been done.
By the terms of the separation agreement made in June 1956 it was agreed that the respondent should have the custody of the boy, the eldest of the children, and the appellant that of the two girls during their respective minorities. The agreement provided in general terms that both parties should have reasonable access at all times to each of the children and, with the approval of one another, to take any of the children for week-ends or holidays on giving reasonable notice to the other. This was before the discovery of the Kruger letters and the commencement of the first divorce action. Difficulties arose thereafter in the arrangements for access. On one occasion, the date of which is not made clear in the evidence, the respondent had arranged with his wife to take the two girls for the week-end but, when he arrived at Kruger’s place where the appellant was then living, he found that his wife and Kruger had taken them away for the week-end. On their return, apparently a violent scene ensued between the respondent and Kruger, the respondent threatening him with violence, as a result of which Kruger laid a charge in the police court and the respondent was bound over to keep the peace.
In the summer of 1957 when the appellant and the two girls were at Cove Island, the respondent was having great difficulty in obtaining access and accordingly applied in chambers to Treleaven J. on July 24, 1957, the latter directing that the respondent should have access for defined periods during the months of July and August 1957, and thereafter on Saturday and Sunday of each week between the hours of 9.00 a.m. and 6.00 p.m. The appellant had taken the position that the respondent had no right to see the young girls at all and, when the order was made, the respondent sent a telegram informing the appellant of the making of the order and that he proposed to call for the children, and it was shown that this telegram was received by the appellant. However, when the respondent arrived at Cove Island to take the children away, the appellant informed the respondent that no judge could tell her whether she could have her children or not.
In September 1958, after the decree nisi when the two girls were living with their mother at the house at Oakville and, at or about the time when the above mentioned application was launched, the respondent went there to take the two younger children with him when the appellant, in the presence of the little boy, attacked her husband using foul language and damaging the respondent’s car to the extent of about $300. The two younger children were in the house at the time of this occurrence.
The decree absolute for divorce contained no provision for custody.
After the remarriage of both parties there was further trouble in carrying out the arrangements for custody. The respondent, who had evidently changed his mind as to the wisdom of having authorized his solicitor to make the agreement above mentioned, advised the appellants solicitors that he did not propose to be bound by it. At the end of the year 1958 the appellant, having married Kruger, went with him for a holiday to the West Indies, leaving the two young children in the custody of some friend at Oakville, without informing the respondent of her intention to do so or of the whereabouts, of the children. For several days he was unable to exercise his right to custody since he did not know where the children were. He was, however, able to locate them and take them to his home. In April 1959 the respondent called at Kruger’s place at Oakville for the purpose of taking the two young girls into his temporary custody, having wired to the appellant saying he wished to do so and asking her to wire if she disagreed with the proposal. The respondent drove his car, in which his son was a passenger, and stopped at the front door of the place and, shortly afterwards, Kruger drove his car into the driveway blocking the exit and informing the respondent that he was going to leave his car there as long as was necessary and that he would call the police. The young girls were in the house at the time watching this. As they were not given into the respondent’s custody and as there was no other means of exit from Kruger’s property, the respondent drove his car across the lawn to enable him to leave the property. Kruger then prosecuted him in the police court for doing wilful damage to his property. The charge was dismissed.
The evidence of the respondent is that as the Easter holidays were approaching the situation in regard to the custody of the children was wholly intolerable and he thought that it was in their best interests that he should stay away altogether rather than to expose them to these recurring scenes. Having done this, he consulted another solicitor and the motion above mentioned was launched on May 8, 1959.
The trial of the issue before Spence J. lasted seven days during which there was a most extensive examination of the behaviour of the appellant and respondent during the years of their married life.
The evidence was most carefully and exhaustively examined by Mr. Justice Spence in his considered reasons for judgment. After having referred to what had been said by Roach J.A. in Bell v. Bell[2], as to the desirability of small girls being entrusted to the custody of their mother, the learned trial judge said:
It is, therefore, the unpleasant duty of the Court to find whether in its opinion the present Mrs. Kruger is or is not an improper party to have the custody of these two little girls. That investigation must be carried on in light of the fact that I have already found that Mr. Booker is an excellent character and that his present wife, although only 24 years of age, is a calm, serene, capable young woman.
Spence J. did not believe the evidence of the appellant who had said that the only occasions on which she had committed adultery with Kruger was during her stay in Florida in the early summer of 1956. It was made quite clear by the letters written by Kruger to the appellant in 1956 that the affair between them was one of long standing. Referring to the occasion in 1952 when, in the absence of her husband, the appellant had driven with Kruger to Boston and New York, the learned judge said that he did not believe her explanation and did not believe her when she said that the trip was taken with her husband’s knowledge. Cross-examined as to this, she said that she and Kruger had driven to Boston and thence on to New York and returned by air. Later she said, in answer to a question asked by the learned trial judge, that she had been away four or five days. She said she could not remember what hotel she had stayed at in New York. The information obtained by her husband was that it had been of some three weeks’ duration, during which time she had left the children with her mother. The learned trial