Maddock v. Maddock, [1958] O.R. 810-833

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  • Date: 2018

Maddock v. Maddock

[1958] O.R. 810-833

ONTARIO [COURT OF APPEAL]

LAIDLAW, LeBEL and SCHROEDER, JJ.A.

4th DECEMBER 1958.

 

 

Divorce — Connivance — Corrupt intention — Acquiescence — Inference from facts.

 

The essence of connivance is that the spouse charged therewith should have consented or wilfully contributed to the adultery or promoted it so that it would appear that he or she had a corrupt intention. There is a presumption against connivance and it therefore must be strictly proved. Where, therefore, a wife told her husband that the co-defendant had asked her to go away with him and that she intended to do so if she could not get along with the husband and shortly after the husband was persuaded to enter into a separation agreement, a finding of connivance was not justified simply on evidence that when the husband was in the act of moving out of the matrimonial home he met the co-defendant moving in, and he made no protest or attempt to prevent him.

Per LeBel, J.A., dissenting, the evidence clearly showed acquiescence, and the trial Judge was justified in finding connivance.

THIS was an appeal by the plaintiff from the dismissal of his action after a trial by King, J., 13th May 1958.  The action was an action for divorce and the trial Judge found that adultery had been proved but dismissed the action on the ground of connivance.

The facts taken from the judgment of Schroeder, J.A., showed that the plaintiff and the defendant wife were married 10th August 1940, and resided at all times thereafter in a rented house on Gore St. in Forest. The plaintiff and the co- defendant were both bread drivers for the Canada Bread and had known each other for two years prior to the events out of which this action arose.  These men and their respective wives associated together during this period going together to dances, picnics, theatres and other social activities. At some time not specified the plaintiff’s wife suddenly told the plaintiff that the co-defendant had asked her to go away with him and that she intended to do so if she could not get along with him.   Thereafter matrimonial relations deteriorated and while they continued to live together, marital intercourse ceased.         The wife asked the plaintiff for a separation and he finally agreed and on 10th October a separation agreement was executed and while that agreement was silent as to who should remain in occupation of the matrimonial home apparently it was agreed that the husband should move out.     He remained in the house until the following day, 11th October, when he moved with the few belongings to which he was entitled under the agreement. As he was moving out he met the co-defendant going into the house with his clothes. The plaintiff denied any knowledge of the co-defendant’s intention to move in or any arrangement between him and the co-defendant that he should do so.

The trial Judge on these facts found connivance.   In his reasons for judgment he said:– Now, this would appear to me to be more than a coincidence. It seems to me to lead to the almost inescapable conclusion that there must have been some understanding between the plaintiff and the male defendant.

It would be hard otherwise to believe that a male defendant, apart from some understanding with the husband, would have the temerity to move in his belongings while the husband was removing his from the matrimonial home.

In the present case — if I understood the evidence correctly, and I believe I did, — the plaintiff and the male defendant were actually brushing past each other as one was taking his things from the house and the other was bringing his things into the house.

The inference, it seems to me, is clear that the understanding between the plaintiff and the male defendant was that the plaintiff would move out of his home and that the male defendant would move in.

Certainly, it appeared to me that the plaintiff recklessly permitted the adultery, which he has alleged, to take place between his wife and the male defendant; and, indeed, that he facilitated the commission of such adultery.

 

The plaintiff appealed.

 

H.D. Garrett, for the plaintiff, appellant.  The trial judge must have found that the plaintiff had been guilty of connivance although he made no specific finding in those very words. If the facts at hand amount to connivance then should a husband go away on a business trip of two weeks and leave his wife unchaperoned and she commits adultery during his absence, then his action in leaving must constitute connivance.           That is the logical extension of this argument since once the plaintiff left his former home he could not have prevented the co- respondent from returning at a time when he was not there.

Here the circumstances were such that the plaintiff might reasonably infer from the fact that his wife was prepared to go away with another man that adultery had already taken place between her and the co-respondent.    [LEBEL, J.A.:                          But he should have said to her that this has gone too far. I, as a good husband, will prevent you from doing this.]   It is not necessary that he do anything.      If a husband suspects that adultery has been committed he may permit its continuance, but not encourage its inception, to obtain evidence and no bar to divorce is created:  Kawala v. Kawala, [1951] O.W.N. 244, at p. 246.  [LAIDLAW, J.A.:  The separation agreement was made a very short time after the conversation where his wife said she was going away with the other man and this agreement was prepared by the same solicitor who prepared the separation agreement for the co-defendant and his wife.    Indeed, both agreements are dated the same day.  This looks very curious.]            The same lawyer drew the agreements because he had an office in Forest at which he attended one day a week and he was the only solicitor there who engaged in a practice of this type.      In addition both defaulting spouses made their announcement of leaving their respective matrimonial partners about the same time so that the agreements would naturally be entered into promptly thereafter. The fact that the co-defendant came up to the house at the same time that the plaintiff was leaving is the only possible evidence of connivance and there is clearly no consent. [LEBEL, J.A.:  This case shrieks with connivance! SCHROEDER, J.A.: Mere suspicion of connivance is not enough.        LAIDLAW, J.A.:        The question is whether the tacit permission of Maddock to allow the co-defendant to enter the house amounts to connivance at adultery.]     This cannot be connivance since the association had been earlier formed and a woman does not decide to go away with another man, state her intentions and reject her legal husband unless things have already reached a pretty advanced stage.     Legally, since his suspicions were present, he was entitled even to go so far as to create an opportunity for it to happen:       Douglas v. Douglas, [1951] P. 85, at p. 98, Lemaich v. Lemaich, [1955] O.R. 35.          [LAIDLAW, J.A.: I suppose there is this to be considered, the trial Judge has not expressly disbelieved Maddock’s evidence that he was unaware that the co-defendant was coming. If the co-defendant was in fact coming to live with Mrs. Maddock on her invitation only, what act or omission on Maddock’s part constituted connivance? Up until Maddock had left the house he had nothing to connive at and the only evidence of connivance was that he was leaving the home, another man was moving in and there was no evidence whatever to indicate that Maddock knew in advance that the co- defendant was coming or that Maddock in fact consented to him coming. LEBEL, J.A.:  He could have told him to go away, and he didn’t even do that. LAIDLAW, J.A.: After the separation agreement had been signed in which Maddock agreed to leave the matrimonial home, if he then expressly invited the co-defendant to move in, would that be connivance?] Yes! [LAIDLAW, J.A.: Then if by his actions he invited the co- defendant to move in, would that amount to connivance?] If he reasonably suspected that adultery had taken place in the past, it would not.  But here his action did not go that far since he was merely complying with his agreement to leave and for all practical purposes Maddock could not have prevented the co-defendant from returning after he had gone.  Indeed it is quite possible that Maddock had no right to prevent the co- defendant from then going where he had a legal right to go. [LAIDLAW, J.A.: One might reasonably anticipate that Maddock knew what was going to happen.  However, Mudge v. Mudge, [1950] 1 All E.R. 607, indicated that Pearl v. Pearl, [1943] O.R. 720, was wrongfully decided.   Still the question is, does mere acquiescence amount to connivance?                            At present, I cannot attribute any wrongdoing to Maddock.]

No one contra.

Cur. adv. vult.

SCHROEDER, J.A., after stating the facts:– I think it is clear from the learned trial Judge’s reasons that he attached the most vital significance to the fact that the co-respondent was moving his personal belongings into the Gore St. house at the same time as the plaintiff was moving out, and despite the latter’s emphatic denial, he refused to believe that this was a purely coincidental occurrence.

The learned trial Judge’s finding is not one based upon the credibility of a witness or witnesses but is rather based upon a conclusion from the evidence and what inferences should be drawn from the conduct of the parties.                    It is well settled that in such a case an appellate Court is in as good a position as the trial Judge and has not only a right but a duty to form its own opinion upon the facts.    Vide Union Marine & Gen. Ins. Co. v. Bodnorchuk, [1958] S.C.R. 399 in which the rule laid down in Jones v. Hough (1879), 5 Ex. D. 115, and in N.B. & Mercantile Ins. Co. v. Tourville (1895), 25 S.C.R. 177, at p. 197, was applied.

With the greatest deference to the opinion of the learned trial Judge, I am unable to place a construction upon the evidence which would support his conclusion that the plaintiff was guilty of connivance which precluded his right to a decree dissolving the marriage.

It is of the very essence of connivance that the person complaining of the misconduct should have consented or wilfully contributed to the commission of the adultery or have promoted it in some other way, so that it would appear that he had what has been frequently described in the authorities as “a corrupt intention”.   Connivance is, of course, an absolute bar to an action based upon adultery, since obviously the plaintiff is not entitled to obtain relief for an offence to which he or she has been accessory or which he or she has tacitly permitted with an evil motive. It has been pointed out that this principle bears an analogy to the common law doctrine of volenti non fit injuria and the maxim “that he who comes to equity must come with clean hands”.         An authority which has profoundly affected legal thinking on the subject of connivance in matrimonial causes is the judgment of Lord Merriman in the Court of Appeal in England in the case of Churchman v. Churchman, [1945] P. 44, and I refer particularly to the reasons for judgment, at p. 52, from which I quote:–

Much of the difficulty in dealing with the question of connivance arises from the fact that in the past judges have gone beyond the facts of the particular case in an attempt to lay down general principles of wider application.                                      In our opinion it is of the utmost importance to bear in mind that the issue is whether, on the facts of the particular case, the husband was or was not guilty of the corrupt intention of promoting or encouraging either the initiation or the continuance of the wife’s adultery; and that the court should not allow its judgment to be affected by importing, as principles of universal application, pronouncements made with regard to wholly different circumstances, and so be led to a conclusion contrary to the justice of the case.

It is well recognized, of course, that a petitioner may connive at adultery otherwise than by giving an express consent.  If, with a corrupt intention, he stands by and permits the act to take place he may be guilty of connivance by acquiescence.  This question was considered and discussed by Sir John Nicholl in Rogers v. Rogers (1830), 3 Hag. Ecc. 57, at p. 59, from which I quote the following passage:–

In these cases it was held, not to be necessary that any active steps should be taken on the part of the husband to corrupt the wife; to induce and encourage her to commit the criminal act. Passive acquiescence would be sufficient to bar the husband, provided it appeared to be done with the intention and in the expectation that she would be guilty of the crime; but on the other hand it has always been held that there must be a consent.             The injury must be volenti, it must be something more than mere negligence; than mere inattention; than over-confidence; than dullness of apprehension; than mere indifference; it must be intentional concurrence in order to amount to a bar.  Thus in Walker v. Walker, Lord Stowell, after stating that the adultery was fully proved; that the intercourse was for a long time carried on with considerable secrecy, proceeded: ‘The defence is not a denial of the fact, but that which, if established, is said to be equivalent in law.  It is said, that the husband connived; but they do not impute active means, but a passive consent.  I take the position laid down by Dr. Arnold, to be the true doctrine — that passive consent is sufficient; but there must be a consent, an acquiescence of his will; not mere negligence; not too high a confidence, or a misplaced confidence: — there must be evidence that he was passively concurrent; that he saw the train laid for the corruption of his wife; that he saw it with pleasure, and gave a degree of passive concurrence to it.’

In most cases a plaintiff’s guilty concurrence in a spouse’s adulterous conduct can only be established by circumstantial evidence and it is of prime importance to keep in mind that there is a presumption of law against connivance. In Churchman v. Churchman, supra, Lord Merriman stated at p. 51:–

Connivance implies that the husband has been accessory to the very offence on which his petition is founded, or at the least has corruptly acquiesced in its commission, and the presumption of law has always been against connivance.

Having regard to this presumption, which applies with equal force under our law, it is essential that the whole of the plaintiff’s conduct must be taken into consideration, and the danger involved in laying too much emphasis upon isolated words or acts which point to a suspicion of connivance in one aspect of the matter is plainly evident.

On the evidence the plaintiff’s first suspicion that there might have been some improper relationship or association between his wife and the co-respondent was aroused when she divulged to him the startling information that the co- respondent desired her to go away with him. There is nothing to suggest that prior to that time he had entertained any doubts about his wife’s fidelity or that he remotely suspected that there was anything in the nature of an intrigue between her and the co-respondent. From all that appears in the evidence it may be assumed that the plaintiff entertained the hope that his wife would continue to live with him, but when her attitude towards him changed, as described in his testimony, culminating in her suggestion that they should arrange a formal separation, he must have realized then that he had lost his wife’s affection.  It is not astonishing then, that he decided that they could not continue to live together and that he eventually agreed to comply with her suggestion.

It may be that the plaintiff was too easily prevailed upon to yield to his wife’s desire for a separation, and perhaps his failure to protest when he saw the defendant moving into the home as he was leaving it, is open to criticism.       It must be borne in mind, however, that he had entered into a formal separation agreement with his wife and that he was bound, by the covenant to which he had subscribed, to live separate and apart from her.  Even if he had taken steps on that occasion to prevent the co-respondnet from moving into his late home, what would have prevented this man from returning to it as soon as the plaintiff’s back was turned?      The circumstance which gave rise to the suspicion in the learned trial Judge’s mind must be weighed against the positive statements of the plaintiff that he did not know that the co-respondent had arranged to move into this house.                 It is evident, however, that the defendant wife knew and that she acted with complete independence and in arrant and shameless disregard of her husband’s wishes or his sensibilities. I should think that if there had been a guilty arrangement entered into between the plaintiff and the co- respondent as the learned Judge suggests, the plaintiff would have taken great pains to avoid even the slightest appearance of evil, and the fact that the co-respondent’s act of moving into the premises coincided in point of time with the plaintiff’s moving out is equally, if not more, suggestive of his innocence in the matter.  It is also noteworthy that he made no attempt to conceal this fact when testifying, although the action was unopposed.

Connivance is about the most serious counter-charge that can be made against a married person, especially against a husband. It amounts to no less than an allegation that the misconduct (adultery) of the other party to the marriage has been actually compassed or brought about, or, at least, has been knowingly and wilfully permitted by the petitioner.  The strictest proof is required of so extremely grave a charge and it should be founded only on cogent and convincing testimony, rather than on mere suspicion or surmise.  The evidence in this case falls far short of establishing to my satisfaction that the plaintiff was an accessory to his wife’s adulterous conduct with the co-respondent on which this action is based, or that he corruptly acquiesced in its commission. It would therefore direct that this appeal be allowed without costs and that a judgment nisi be entered dissolving the marriage between the plaintiff and the defendant spouse, with costs of the trial to be paid by the co-respondent to the plaintiff.

LAIDLAW, J.A.:– The action was not defended and the evidence adduced in support of the plaintiff’s case showed plainly that the defendant and the co-respondent lived together as man and wife on and after 11th October 1957.                                Nevertheless, the action was dismissed on findings made by the learned Judge and for reasons which appear in the following passages therefrom:–

The inference, it seems to me, is clear that the understanding between the plaintiff and the male defendant was that the plaintiff would move out of his home and that the male defendant would move in. Certainly, it appeared to me that the plaintiff recklessly permitted the adultery, which he has alleged, to take place between his wife and the male defendant; and, indeed, that he facilitated the commission of such adultery.

It will be convenient and helpful to state certain propositions or principles of law respecting connivance, and which I extract from the following and other cases:– Rogers v. Rogers (1830), 3 Hag. Ecc. 57, at p. 59, Gipps v. Gipps (1864), 11 H.L. Cas. 1, Lloyd v. Lloyd, [1938] P. 174, Churchman v. Churchman, [1945] P. 44, Woodbury v. Woodbury, [1948] 2 All E.R. 684, Mudge v. Mudge, [1950] 1 All E.R. 607.

1.  Connivance may consist of any act done with corrupt intention of a husband or wife to promote or encourage either the initiation or the continuance of adultery of his or her spouse, or it may consist of passive acquiescence in such adultery.

2.  Corrupt intention of the husband or wife seeking a divorce is an essential ingredient of connivance, and the conduct of the husband or wife seeking the divorce must show that he or she, as the case may be, willingly consented to the adultery of the other spouse.

3.  The issue is whether on the facts of the particular case, the husband or wife seeking the divorce was or was not guilty of the corrupt intention of promoting or encouraging either the initiation or the continuance of the adultery of the other spouse.

4.  Acts done by a husband or wife seeking a divorce or by any person employed by him or her, as the case may be, to keep watch on the other spouse to see whether or not his or her suspicions of adultery are well-founded or unfounded, do not necessarily constitute connivance and, likewise, if one spouse does nothing without lulling into a sense of security, the other spouse about whom he or she, as the case may be, is suspicious, but merely watches her, he is not necessarily guilty of passive acquiescence amounting to connivance.

5.  “The Court should not allow its judgment to be affected by importing, as principles of universal application, pronouncements made with regard to wholly different circumstances and be led to a conclusion contrary to the justice of the case”:  Churchman v. Churchman, [1945] P. 44, at p. 52.

6.  There is a presumption of law against the existence of connivance and the Court should not find a spouse guilty of connivance unless the evidence shows clearly that all the essential ingredients thereof exist in the particular facts under consideration. I shall proceed to consider certain cases which were the subject of discussion during the hearing of the appeal.

In Pearl v. Pearl, [1943] O.R. 720, the reasons for judgment given by me show that I had in mind clearly the essential ingredients of connivance.        I was satisfied that in the particular circumstances of that case there was a corrupt intention of the husband to encourage or promote the wife’s adultery on which the action was founded, and that his conduct showed a consent to the commission of such adultery.         He had lived separately from his wife for a period of almost a year and, although he had engaged the services of a man to keep the conduct of his wife under observation, it does not appear that he had any reason to believe that she had committed adultery with her co-respondent or with any other man before the particular occasion under consideration. On that occasion he had reason to believe that she was about to commit adultery and he waited in expectation, and I have no doubt in hopeful and pleasurable expectation, that she would do so. He watched her commit the offence when he had full opportunity, and in my opinion, a duty whether it be called a legal, moral, social or matrimonial duty, to prevent her doing so.  I applied the relevant principles of law to the particular facts of the case and found from the evidence that the plaintiff was “inseparably associated with and implicated in the wrongdoing of his wife.” I continue to think that finding was right in the particular circumstances of the case.                      There was no new principle of law enunciated by me and the finding and decision in that case is of little or no assistance in reaching a decision in another case where the evidence and circumstances are not the same.

In Mudge v. Mudge, supra, no new principle of law was stated or applied to the particular facts of the case.  The learned Judge accepted and applied the principles stated clearly and with great authority by Lord Merriman, P., in Churchman v. Churchman, supra.  His reference to Pearl v. Pearl, supra, was incidental and obiter.

In Lemaich v. Lemaich, [1955] O.R. 35, Spence, J., considered and discussed at some length, the decision in Pearl v. Pearl, supra, and Mudge v. Mudge, supra. He expressed the view, at p. 40, that:–

This decision of Hodson, J., in Mudge v. Mudge cannot be reconciled with the decision of Laidlaw, J.A., in Pearl v. Pearl, except upon the possible basis . … that the husband suspected that his wife was living in adultery, i.e. that there was a pre-existing adulterous association between the defendant wife and the named adulterer.

He expressed the opinion that under the judgment of the Court of Appeal for Ontario in Kawala v. Kawala, [1951] O.W.N. 244, Mudge v. Mudge cannot be accepted as law in Ontario.

Again I emphasize that the finding and decision in Kawala v. Kawala, supra, depended upon the particular facts in that case. That is apparent from the statement made by Hogg, J.A., that There is nothing in evidence which could establish that the appellant had done anything to bring about the illicit association between her husband the co-defendant and no proof whatever of a ‘corrupt intention’ on the part of the appellant.

I cannot discover any conflict in law between my decision in Pearl v. Pearl, supra, and the decision in Mudge v. Mudge, supra.  There was no new principle of law enunciated in either of these cases and each decision was reached by applying settled principles of law to the particular facts under consideration.  With much respect I suggest that the learned Judge created for himself the difficulty pointed out by Lord Merriman, P., in Churchman v. Churchman, supra, at p. 52, in these words:–

Much of the difficulty in dealing with the question of connivance arises from the fact that in the past, judges have gone beyond the facts of the particular case in attempt to lay down general principles of wider application.

I emphasize also the words of Somervell, L.J., in Douglas v. Douglas, [1950] 2 All E.R. 748, at p. 752, as follows:–

It is, I think, dangerous, particularly in this area where the state of mind is all important, to argue from the facts of one case in deciding another.

I refer also to Woodbury v. Woodbury, supra, at p. 689, where Somervell, L.J., quotes the language of Lord Merriman, P., in Churchman v. Churchman, supra.

My brother Schroeder, J.A., has given me the privilege of perusing the reasons for judgment prepared by him and I may say at once that I concur in them and in the order of this Court as proposed by him.    I desire to add a brief statement of my views.

The learned trial Judge based his conclusion on an inference that there was an understanding between the plaintiff and the male defendant that the plaintiff would move out of his home and that the male defendant would move in.       It is well settled that an appellate Court is in as good a position to evaluate the evidence as the trial Judge and should form its own independent opinion where there is no question of credibility of witnesses:              Benmax v. Austin Motor Co. Ltd., [1955] 1 All E.R. 326. The finding made by the learned Judge does not rest on the credibility of the plaintiff and in my opinion, the inference drawn by the learned Judge from the evidence is not right.   I can find nothing in the evidence to support that inference.    There is no evidence of any communication of any kind between the plaintiff and the male defendant at any time after the plaintiff and his wife agreed to live apart from one another.      On the contrary, there is positive evidence given by the plaintiff that there was no arrangement or agreement whereby the plaintiff would move out of his home and permit the defendant to move in.       There is positive evidence that the plaintiff did not know the male defendant was moving into the home.       Moreover, it appears to me altogether improbable that if there was such an understanding between the plaintiff and the male defendant or between the plaintiff and his wife, his move out of the house and the move in by the male defendant would not be made in broad daylight in the open view of the public and without any attempt whatever to conceal their wrong-doing. It is more probable, in my opinion, that the arrangement that the male defendant would move into the house occupied by the plaintiff’s wife, was made between those two wrongdoers in secret without the plaintiff’s knowledge thereof.  All wrongful association and intrigue between them prior to the sudden and unexpected announcement by his wife that she was going away with the male defendant was kept completely secret from the plaintiff and it is reasonable to conclude that the willingness and determination of the two defendants to live together resulted in a secret arrangemnt between them under which the male defendant was to move into her home. The fact that he chose to do so at the very time when her husband was moving out was a mere coincidence.

The learned Judge said that it appeared to him:–

that the plaintiff recklessly permitted the adultery which he has alleged, to take place between his wife and the male defendant; and, indeed, that he facilitated the commission of such adultery.

Again there is no evidence to support that finding.  The fact that the plaintiff moved out of his home does not show that he facilitated the commission of his wife’s adultery.                                         He had agreed with her that he would move out and live apart from her and he was simply doing what he had promised and agreed to do. The fact that he was proceeding to keep his promise and to carry out this agreement between him and his wife at the moment

when her co-respondent was moving into her home with her apparent consent does not show that he “recklessly permitted” her to commit adultery and it does not show that he facilitated the commission of adultery of his wife. In my opinion those facts do not support a finding that there was a “corrupt intention” of the plaintiff to encourage or promote the adultery committed by his wife and upon which the action is founded. Therefore he cannot be found guilty of connivance.

It was suggested in the course of argument that it was the duty of the plaintiff to protect his wife against the obvious danger to her and to have resisted or prevented the male defendant from moving into her home. Again the particular facts must be borne in mind.       She had determined “to go away” with the male defendant and undoubtedly was ready and willing to commit adultery with him.                         She had forsaken her husband and denied him matrimonial rights.    She had signed a separation agreement under which she was to live apart from him.              On the other hand, the male defendant had planned and undoubtedly was determined to live with the plaintiff’s wife.     What could the plaintiff do in such circumstances to prevent his wife from committing adultery with the male defendant?      It was too late for reason or argument and if he had used physical force to prevent the male defendant moving into the house at the time when their paths crossed it would have been an easy matter indeed for the male defendant to simply postpone his moving in until the plaintiff was off guard.                       I cannot find from the evidence that it was within the power of the plaintiff to prevent the adultery of his wife on which the action is founded.

I am satisfied that in the particular circumstances of this case the plaintiff’s conduct does not show that he had a “corrupt intention” to encourage or promote the adultery of his wife and therefore he was not guilty of connivance barring his right to a decree of divorce.

LEBEL, J.A. (dissenting):–  This appeal should be dismissed in my opinion.      With respect for the contrary view expressed by my brothers, I think the inferences of collusion and passive connivance drawn by the learned trial Judge were the right ones and I am in complete accord with them.

At the conclusion of the case, which was uncontested, the learned trial Judge referred to that part of the plaintiff’s testimony wherein he stated that he had moved out of the matrimonial home on 11th October 1957, just as the co- respondent was moving in — obviously to take up residence with the plaintiff’s wife.  The restrained words of the learned Judge concerning that extraordinary state of affairs were: “That seems to be going a little too far.”  When extending his reasons for dismissing the plaintiff’s action he added:–

In the present case — if I understood the evidence correctly, and I believe I did, — the plaintiff and the male defendant were actually brushing past each other as one was taking his things from the house and the other was bringing his things into the house.

The inference, it seems to me, is clear that the understanding between the plaintiff and the male defendant was that the plaintiff would move out of his home and that the male defendant would move in.

Certainly, it appeared to me that the plaintiff recklessly permitted the adultery, which he has alleged, to take place between his wife and the male defendant; and, indeed, that he facilitated the commission of such adultery.

Even if the co-respondent’s moving in at the precise time of the plaintiff’s moving out was a pure coincidence and had not been planned beforehand, which the learned Judge refused to credit, I think he drew the only possible inference in the circumstances which he concluded that the plaintiff connived at the adultery which he must be taken to have known would afterwards result.

It is well settled that connivance is an absolute bar in an action for divorce, separate and distinct from collusion, even though the circumstances in a particular case often overlap and justify the conclusion that a plaintiff has been guilty of both. This in my opinion, is one of those cases, but whether there was this prior understanding between the two men in fact, the important matter for consideration from the standpoint of connivance is the plaintiff’s conduct at the time he saw the co-respondent moving in.  Was his intention then corrupt or innocent?

What is a corrupt, as distinct from an innocent, intention or frame of mind?  It seems necessary to say in reply that a corrupt intention is no more than an intention to do a corrupt thing, as was pointed out by Somervell, L.J., in the Court of Appeal in England in Douglas v. Douglas, [1951] P. 85, where, at p. 92, he first quoted the following passage from the judgment of Lord Merriman P. in Churchman v. Churchman, [1945] P. 44, at p. 52:–

In our opinion it is of the utmost importance to bear in mind that the issue is whether, on the facts of the particular case, the husband was or was not guilty of the corrupt intention of promoting or encouraging either the initiation or the continuance of the wife’s adultery.

and immediately added:–

There was some discussion before us as to the meaning of the word ‘corrupt’.                          It may be difficult to envisage an intention to encourage adultery which is not ‘corrupt’.                        It certainly emphasizes what is also stated to be ‘all important’, namely the petitioner’s ‘state of mind’.

Speaking for myself, I should think it is not only difficult but impossible.            What an innocent intention is, of course, needs no explanation, but it is also necessary to say, I think, that a mere passive standing by was at one time thought to amount to incontrovertible evidence of a corrupt intention, but such conduct has more recently been viewed differently.            In Mudge v. Mudge, supra, where the plaintiff with certain private detectives had concealed themselves and witnessed the wife in the act of adultery, it was decided that there had been no connivance.            That pronouncement was approved in the Court of Appeal in England in Douglas v. Douglas, supra, and by this Court in Kawala v. Kawala, supra, which, in turn, expressly approved the Douglas case on the point.  In the latter decision Somervell, L.J., at pp. 93-4 said this:–

In the present case, as it seems to me, the husband was not intending to encourage or promote an adulterous association, but seeking proof of what, from Christmas, he rightly believed to exist.    In every case in which a husband who believes his wife is committing adultery has her watched, it can be said that if he warned her she was going to be watched, no act of adultery would have taken place on that occasion.    It would be absurd to suggest that this in itself amounted to connivance:           see Mudge v. Mudge.

In the present case there was no standing by to watch for proof of adultery, but the question of the husband’s having created the opportunity for its commission was indeed present, and that, in my opinion, is the weightier badge of connivance.

However, it has been held that neither the standing by nor the creation of the opportunity, or both, is decisive of the presence of a corrupt intention.   What is of prime importance the recent cases show, is whether a spouse honestly believed on reasonable grounds that the other committed adultery prior to the time of the watching and/or the creation of the opportunity, and I adopt what was said by Denning, L.J., in the Douglas case, about the latter, at p. 98:–

This case goes one step further than watching, because the husband deliberately left the house so as to let the guilty pair believe they were alone, and then had them watched. By so doing he not merely acquiesced in the adultery, he created an opportunity for it.      Does this added element make him guilty of connivance where mere watching would not?            I think not.           This court is not concerned with the ethics of the matter.                           The question is, which is the greater evil?               To allow the adultery to continue undetected and unproved? or to allow the husband to obtain his proof by creating an opportunity for it?  My answer is that, if the husband honestly believes that adultery has already taken place, it is very necessary that his suspicions should either be confirmed or disproved.                   (Emphasis added).

If a plaintiff suspects that a spouse has committed adultery

— that is honestly suspects for good, or what appeared to him at the time to be good, reason — he does not have to afterwards prove that his suspicions were based upon such evidence as would have entitled him to decree nisi.   The point was admirably made by Denning, L.J., in the Douglas case where he discussed the difference between a belief founded on reasonable grounds and an alleged belief based upon unreasonable grounds, i.e. I apprehend — mere suspicion. He said, at p. 99:–

His guilt or innocence cannot depend, however, on the view which a court may ultimately take of the evidence before it, which may be different from that which the husband had before him. It must depend on the husband’s state of mind at the time.       That has always been laid down, right from Phillips v. Phillips (1844), 1 Rob. Eccl. 144, to Churchman v. Churchman, [1945] P. 44, 50.   And, when considering his state of mind, it must be remembered that he is presumed to be innocent of connivance.  He may quite reasonably believe that his wife is indulging in an adulterous intrigue on evidence which would be quite insufficient to establish it in a court of law.                   When there are reasonable grounds for his belief, his conduct in testing his belief is not evidence of connivance:        because he must, in fairness, be given the credit of believing it and of seeking only for the necessary proof.         But if there are no reasonable grounds for his belief, a suspicion of connivance arises, because it may be inferred that he did not in fact believe it.         If he then promotes and encourages an act of adultery, by throwing the pair together, he may be called on to explain it; because at the end of the case the court must be satisfied, on the balance of probabilities, that there was no connivance: Emanuel v. Emanuel, (1946) P. 115, 118.  (Emphasis added.)

What is an equally vital principle is the date of the inception of the adultery, for to establish connivance it is necessary to show that it anteceded the adultery.                               This, I think, has never been doubted.             In Churchman v. Churchman, supra, at p. 50, Lord Merriman stated that:–

… it is of the essence of connivance that it precedes the event and, generally speaking, the material event is the inception of the adultery and not its repetition, although the facts may be such that connivance at the continuance of an adulterous association shows that the husband must be taken to have connived at it from the first.

If these two principles are in accord with our law, as I think they are, the question in this case is:  Did the plaintiff honestly believe on reasonable grounds that his wife had already committed adultery with the co-respondent before he walked out of his house on 11th October?    If that was his honest belief at that time, I must say at once that he neither swore that it was, nor even that he then suspected that his wife had been guilty of adultery with the co-respondent.

As a result of the judgment in Pearl v. Pearl, supra, a question has arisen as to whether our law is different from that of England upon the importance of the plaintiff’s state of mind. See what was said to this effect by Spence, J., in Lemaich v. Lemaich, supra, at p. 42, referred to in Power, Divorce, 4th supp., p. 12.         The judgment in the Pearl case was delivered after trial in the High Court, not in this Court, as the learned author of Power states.           (His mistake is understandable because the report of the Pearl decision does not make the fact clear).           In the Pearl case there was no finding by the trial Judge that the plaintiff had, or did not have, a corrupt intention when he stood by and permitted the adultery to take place in his presence, and the judgment was not approved in Mudge v. Mudge, apparently for that reason.  At all events, the matter of the importance of the plaintiff’s state of mind was settled by this Court in Kawala v. Kawala, supra, where the Pearl case is not mentioned, presumably for the same reason.       In the Kawala case the trial Judge found that the wife had gone to a hotel room with her brother-in-law and had there discovered a state of affairs which plainly justified an inference of adultery by her husband, but he dismissed her action because in his opinion she had “carefully delayed” (the visit to the hotel) “in order not to prevent the adultery, but to let the adultery occur and then to discover it.”     It was upon that finding of fact that he was reversed, this Court holding, at pp. 246-7, per Hogg, J.A., that:–

There was nothing in evidence which could establish that the appellant had done anything to bring about the illicit association between her husband and the co-defendant, and no proof whatsoever of a ‘corrupt intention’ on the part of the appellant.

And the decision in the Douglas case on the point was there expressly approved.    Thus, the law of this Province is as it was declared to be by this Court in the Kawala case.

There is no doubt, as my brothers have said, that the onus of proving the existence of collusion or connivance is not upon a plaintiff in these cases.     However, to understand that proposition it is necessary to amplify it. As will have been observed, Denning, L.J., said in the Douglas case that the Court is to be satisfied on the balance of probabilities.       He had also opined in Emanuel v. Emanuel, [1945] 2 All E.R. 494, at p. 497, that a matrimonial offence such as collusion and connivance does not require to be proved beyond a reasonable doubt.        It would be a curious result indeed if it were otherwise in Ontario in view of this Court’s decision in Boykowych v. Boykowych, [1953] O.R. 827 (affirmed on the point in the Supreme Court of Canada, [1955] S.C.R. 151), that the standard of proof of the adultery itself is the same in any other civil action.        In the Emanuel case Denning, L.J., exposed convincingly the nature of the presumption of innocence, at pp. 496-7.   It is a provisional presumption (like the presumption of testamentary capacity or the presumption of negligence in cases of res ipsa loquitur) [which] must be distinguished from a compelling presumption (like the presumption of legitimacy or the presumption in favour of the holder of a bill).

And, he went on at p. 496:–

The presumption of innocence in divorce cases is not a compelling presumption which puts on the other side the burden of proving collusion.  If circumstances appear which, whilst not proving collusion, lead to a reasonable suspicion of it, they may counter-balance the provisional presumption (just as a suspicion of incapacity or an explanation consistent with due care respectively may counter-balance the provisional presumptions to which I have referred) and thus may shift the provisional burden back again.      These provisional burdens which arise during the case and may shift within an issue must be distinguished from the legal burden of proving the fact in issue which never shifts.                      Provisional presumptions and burdens are not so much propositions of law as propositions of ordinary good sense, as was pointed out by a strong Court of Common Pleas which included Willes, J., in Sutton v. Sadler (1857), 3 C.B.N.S. 87 at p. 96; by Brett, L.J., in Pickup v. Thames Ins. Co. (1878), 3 Q.B.D. 594 at p. 602; and by Du Parcq, L.J., in Easson v. L.N.E.R., [1944] 1 K.B. 421, at p. 425.

Then he concluded at p. 497 as follows:–

In undefended cases where the King’s Proctor does not intervene, the court is under the same duty to inquire whether there has been collusion or connivance, but there is no one to allege or to prove it either by pleading, calling witnesses, producing documents, or by cross-examining the petitioner.  At most in these cases there appears a suspicion of collusion or connivance, and then only when counsel for the petitioner in duty bound discloses it, or when a chance question by the judge discovers it. In the present case, particularly where there was no expression of an innocent intention on the part of the plaintiff, there was in my opinion the strongest kind of suspicion of collusion or connivance, anteceding the inception of the adultery.

I turn now to the facts.  The spouses were married in August 1940.              The plaintiff swore that he and the co-respondent had been friends for about two years.    They were driver-salesmen for the same bread company, and both with their wives had gone out socially together on many occasions for about a year.        The plaintiff and his wife lived amicably until a few days prior to 11th October when a conversation took place between them. As everything that has been said on the plaintiff’s behalf about his suspicion of his wife’s prior adultery stems from that conversation, I think what the plaintiff said about it should be stated in his own words. This is his testimony, and all his testimony, on the subject:–

 

Q. And after this situation (the reference is to the association between the two couples) had lasted for about a year what happened then, Mr. Maddock?                               A. I come home from work one day and she said that Mr. Beer wanted her to go away with him, and I said, ‘wants you to go away with him?’                               I said, “What’s wrong with you?’                     She said, “If I can’t get along with you I’m going’.

Thereafter, on 10th October, the parties entered into a separation agreement.  Who actually initiated the separation was left vague.   The plaintiff was asked,

Q. Who was the instigator of the separation agreement, you or your wife? A. I guess it was her, really, to tell the truth.

What he understood the instigator to mean was not made plain, and from this hesitant answer the plaintiff may well have meant that she was the instigator because of what she had told him.

He did not testify that it was she who first consulted the lawyer who drew the agreement or that she first suggested that there should be a separation. And while he said she would have nothing to do with him during the two or three days that followed, he did not say that he had demanded and been refused his marital rights.   On the day following the signing of the document the incident occurred which raised the learned Judge’s suspicion.            Here, again, from the transcript of the plaintiff’s testimony:–

Q. Now, after you left the home you were running on Gore Street, do you know where (the co-respondent) went to live?

A. Yes, he went into the place that I had with her.  Q. He moved into the place you had; and how long after he moved out

— after you moved out — did he move in? A. He was moving his clothes in when I was moving out.    Q. He was moving his

clothes in when you were moving out?  A. Yes.

It is true that the plaintiff also swore his wife wanted him out of the house.        But why?  During their conversation of a few days before what she said was simply that she intended to go away with the co-respondent if she couldn’t get along with the plaintiff. Thus, her words implied not only a threat but a plea for more consideration from him in future.              What would she think from his subsequent conduct other than that his hurt pride meant more to him than she did?      In any case, if she had been a party to an understanding, that he would go away so that the co-respondent might move in (the plaintiff denied that there was any such understanding) that would not make the plaintiff innocent of collusion or connivance. And it is significant that he did not swear that she had ever made any move to go away with the co-respondent as he said she had threatened to do, or that she had done or said anything following the conversation to arouse his suspicions of her prior adultery. When he was asked whether he considered that he had any indication of any previous adultery this was his emphatic answer:–

Q. And did you have any indication prior to that time? [The time referred to the conversation between the plaintiff and his wife following their association socially with the co-respondent and his wife for about a year.]  A. I sure never.

It is true that the plaintiff maintained that he had not let the co-respondent move in as he himself was moving out, but he did not testify that he had raised even so much as a finger or voiced the slightest objection over what he witnessed with his own eyes.   Nor did he say that he was in fear of the co- respondent for any reason.           In these circumstances, I am at a loss to understand how it can be found as a fact that he did not acquiesce in what he must have known would be the sordid result, and that his intention, therefore, was anything less than corrupt.

The co-respondent’s wife testified at the trial that her husband was in love with the plaintiff’s wife and that he had wanted her.  That was not evidence, of course, against the plaintiff’s wife. At the very most from what she actually said, she might have meant that she had formed an attachment for the co-respondent, possibly to the point of an infatuation, but in my respectful opinion, her statement did not, and could not, amount to a confession of prior adultery.                        The plaintiff’s duty to his wife if he suspected an infatuation — he did not so say

— was as clear in law as it was from the moral or ethical standpoint: that duty was to do and to say all he could to persuade her of the danger involved for her personally and for their marriage. The law favours reconciliation.

While, as I have said, the plaintiff did not say what he thought when his wife threatened to go away with the correspondent, his counsel urged us to find that his client’s belief was that she had already committed adultery with the co- respondent.             But counsel cannot be allowed to supply vital evidence in that way.            How would we infer prior adultery when the plaintiff, who had lived with this woman more than seven years, did not swear that he was of that belief himself following the conversation or any other time?            Undoubtedly, he thought that her subsequent adultery entitled him to a decree nisi.

Nothing justifies the subsequent conduct on the part of the wife in this case, but her feelings following his speedy exhibition of indifference for her may be understandable.        It is one thing for a woman seriously to misconduct herself after she has been cast aside by her husband, but quite another to be guilty of such conduct as would justify his casting her aside even in her own eyes.       Undoubtedly, the plaintiff’s wife also thought that after she had commenced to live with the co- respondent her husband was entitled to divorce her, and it

may be taken that she did not care then, but nothing in the plaintiff’s pleading, or said to her at the time of her examination for discovery — the transcript of which was put in evidence as part of the plaintiff’s case — served as notice to her that her husband would assert at the trial that she had committed adultery with the co-respondent before the plaintiff left her.   This case might not have gone uncontested if that had been alleged.           And there is this much to his credit so far as the record goes, he never said that she had, or that he so much as thought that she had.

The facts in other cases are not as a general rule of much, if any, help in deciding the case in hand, but if one needs, for some compelling reason, to ascertain the circumstances under which the Courts of England have been asked to find reasonable grounds for a petitioner’s belief in a spouse’s prior adultery he should look at those other cases. (The question has been considered more frequently in recent years by reason of the extension of the grounds for divorce there;

— the honest and reasonable belief in a wife’s prior adultery being a defence to her action founded on desertion.) I shall not delve into the unsavoury facts in those other cases but shall content myself with saying that in no one of them has it been suggested that anything like the equivocal statement made by the wife in this case could afford reasonable grounds for believing that she had been guilty of adultery.                        I refer for their facts particularly to Douglas v. Douglas, supra, Lloyd v. Lloyd, [1938] P. 174, and Glenister v. Glenister, [1945] P. 30. I think it may be said with confidence that the Courts in England will not conclude that a person is justified in believing that a woman has been guilty of adultery

— particularly when, as here, her good name is unblemished by antecedent conduct — unless that person can show that his belief was based upon circumstances which point unequivocally to adultery. It would be most regrettable if the law were otherwise in Ontario — and I know of no authority for the view that it is otherwise here.

That brings me to what, I think, is the only point remaining. It cannot be doubted that an appellate Court may in the discharge of its duty draw an inference different from that drawn by a trial Judge, but as Lord Summer in SS. Hontestroom v. SS. Sagaporack, [1927] A.C. 37, at pp. 47-8, said:–

If his estimate of the man [the witness] forms any substantial part of his reasons for judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone. …  We should require evidence that would be overpowering in its effect upon our judgment.

An appellate Court may, nonetheless, act upon its own contrary inference where it considers that the trial Judge has failed to use the advantage afforded to him of seeing the witnesses and observing their demeanour. The law on these basic points was reviewed by two very recent judgments of the Supreme Court of Canada:   Union Marine & Gen. Ins. Co. v. Bodnorchuk, [1958] S.C.R. 399 and Little v. Little, [1958] S.C.R. 566.  It is clear from the record in the present case the learned trial Judge was as doubtful of the plaintiff’s honesty in the witness box as the trial Judge had been of the honesty of certain of the plaintiff’s witnesses in the Little case.              The only witness on the question of collusion or connivance in this case was the plaintiff himself.            His testimony raised the Court’s suspicion, and the learned Judge refused to believe him when he said there was no prior arrangement and when he left it to be inferred by the Court that the conduct of the men was purely coincidental. There is, in my opinion, no formula to be followed by a trial Judge when he considers his evaluation of certain testimony. Where it is material for him as part of his reasons to say he credits or discredits a witness, or a part of his testimony, he should say so expressly as the trial Judge did in the Little case where there was a material conflict between witnesses. But where, as here, the conclusion a trial Judge reaches must necessarily be based upon his rejection of the only material testimony on the point in question, he does not have to say he believes or disbelieves the witness who supplied it. If the learned trial Judge in this case had believed the plaintiff on the material point, he would most certainly have granted the decree nisi, for the proof of the wife’s subsequent adultery was clear.          It was because he refused to credit him that he refused to grant the decree.         And there being nothing here to even suggest that the learned Judge did not take advantage of his opportunity to watch the plaintiff and consider his demeanour, it is, I think with respect, our plain duty to leave his finding             alonealong.            The present case is not a case like the Hontestroom case, supra, where there was conflict in the evidence and where the Privy Council considered all the evidence in the case (including cogent evidence supporting its own contrary inference) and concluded, at p. 48:– that the trial Judge (contrary to what is the fact here) did not proceed at all on the manner or demeanour, but proceeded on inferences, which the Court of Appeal could draw as well as he could. …

In the Little case, which expressly approved the Hontestroom case, the Supreme Court reversed the Court of Appeal for British Columbia because it had disturbed the trial Judge’s refusal to credit the testimony of certain witnesses as to the commission of adultery, there being nothing to show that he had failed to be guided in his conclusion by the appearance and demeanour of those witnesses.                    And it is important to note that there was a minority judgment there, per Judson, J., at p. 68, which was based upon the premise

because the evidence that was left after rejection of the impugned evidence led irresistibly to an inference of adultery.

In the present case there is nothing other than the impugned evidence. Divorce cases, whether they be contested or uncontested are no different from the standpoint of an appellate Court than any other civil case, and in my opinion, to depart from the long established rule formulated by appellate Courts for their guidance is to create great difficulties from the standpoint of both litigants and their counsel.

In Glenister v. Glenister, supra, there was much other evidence from which the trial Judge could have inferred adultery; he refused to do so.  This is how Lord Merriman, at p. 33, dealt with the rule regardless of that other evidence:–

… when the magistrate says that he accepted the wife’s story that she had not committed adultery, and accepted her explanation of the presence of these men on that occasion, I do not feel, sitting here on appeal, and with nothing but the written note to go on, that I am entitled to say that the magistrate ought necessarily to have drawn the inference that adultery was committed on that occasion, and so reverse his finding of fact. I feel bound to deal with this case on the assumption that the learned magistrate had material (the demeanour of the witnesses, and so forth) from which he could take the more lenient view.

For these reasons I am of the opinion that this appeal should be dismissed.

 

Appeal allowed.

 

LeBel, J.A., dissenting.

Solicitors for the plaintiff:  Donohue & Garrett, Sarnia. [Argument reported by W.H. GILES, Barrister-at-law.]