Knoll v. Knoll
[1970] 2 O.R. 169
ONTARIO [COURT OF APPEAL]
SCHROEDER, KELLY and LASKIN, JJ.A.
JANUARY 12, 1970.
Divorce — Cruelty — Allegations of pushing and shoving while husband drunk — No injuries or medical attention or intentional blows despite provocation — Whether standard of Russell v. Russell to continue to govern — Whether conduct must be “aimed at” petitioner or intentionally injure her
— Divorce Act(Can.), s. 3(d).
Divorce — Marriage breakdown — Husband long grossly addicted to alcohol — Daily subjecting wife to coarse, rude, disrespectful conduct and language — Whether sufficient to establish permanent marriage breakdone.
In enacting the Divorce Act, 1967-68 (Can.), c. 24, Parliament has expressed the public will to soften the rigours of the marriage bond and, in redefining cruelty in s. 3(d), must be taken to have excluded from the necessary standard the qualifications laid down in Russell v. Russell, [1897] A.C. 395, and the many cases following it.
The Courts must be careful, when exercising their new jurisdiction not to rely upon trivial acts. The whole of the matrimonial relationship must be considered, with due regard to the physical and mental condition of the parties, their characters and their attitudes toward marriage. It is, however, no longer necessary to show that the offensive conduct was “aimed at” the complaining spouse, or committed with an intention of injuring, nor that it did in fact injure her physically or mentally.
In any event, where the evidence is that for a period of not less than three years immediately preceding the presentation of the petition the respondent had subjected the wife almost daily to coarse, rude, disrespectful conduct and language, being grossly addicted to alcohol with no reasonable expectation of rehabilitation in the foreseeable future, the Court may find the wife’s separation justified by the unendurable conditions in the matrimonial home and grant a divorce on the ground of permanent breakdown of the marriage under s. 4(1)(b) of the Act. [Zalesky v. Zalesky (1968), 1 D.L.R. (3d) 471, 67 W.W.R. 104; Paskiewich v. Paskiewich (1968), 2 D.L.R. (3d) 622; Bonin v. Bonin (1969), 5 D.L.R. (3d) 533; Hawthorne v. Hawthorne (1969), 1 N.B.R. (2d) 803; Maund v. Maund (1969), 1 N.B.R. (2d) 547; Chouinard v. Chouinard (1969), 1 N.B.R. (2d) 582; Bustin v. Bustin (1969), 1 N.B.R. (2d) 496; Gollins v. Gollins, [1963] 2 All E.R. 966; Lauder v. Lauder, [1949] P. 277; Dalgleish v. Dalgleish (1955), 93 C.L.R. 595, apld; Russel v. Russell, [1897] A.C. 395; Bagshaw v. Bagshaw (1920), 48 O.L.R. 52, 54 D.L.R. 634; Delaney v. Delaney (1968), 1 D.L.R. (3d) 303, 66 W.W.R. 275; Kaslefsky v. Kaslefsky, [1950] 2 All E.R. 398, distd]
APPEAL from a judgment of Moorhouse, J., [1969] 2 O.R. 580, 6
D.L.R. (3d) 201, dismissing a petition for divorce.
P.J. Brunner, for petitioner, appellant.
E.J. Dube, for respondent.
The judgment of the Court was delivered by
SCHROEDER, J.A.: — The petitioner appeals from the judgment of Moorhouse, J., pronounced on April 11, 1969, whereby the petition was dismissed without costs. The learned Judge’s reasons have been reported in [1969] 2 O.R. 580, 6 D.L.R. (3d) 201.
The petition was presented on two grounds:
(a) That the respondent husband had treated the petitioner with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses, within the terms of s. 3(d) of the Divorce Act, 1967-68 (Can.), c. 24.
(b) That the respondent had for a period of not less than three years immediately preceding the presentation of the petition been grossly addicted to alcohol, and there was no reasonable expectation of his rehabilitation within a reasonably foreseeable period, within the terms of s. 4(1)
(b) of the Divorce Act.
The parties were married at Kitchener, Ontario, on July 29, 1950, the wife, a widow, being then approximately 33 years of age and the husband, a bachelor, approximately 33 years of age. They took up residence at Belle River, Ontario, where they lived until 1960. The course of the marriage did not run smoothly, due, it was alleged by the appellant, to the husband’s heavy indulgence in the use of alcohol. Both parties had gainful employment and the wife states that generally she returned to the home after her day’s work only to find her husband drinking and in an inebriated state. When he was in that condition he treated her very coarsely, rudely, and disrepectfully, applying the vilest epithets to her which would not bear repetition here. On one occasion prior to 1960 he went to her place of employment and accused her before many customers of having stolen his wallet. He later discovered it behind cushions on the chesterfield where it had fallen from his pocket.
Apparently, the respondent could not afford the luxury of satisfying his appetite for spirituous beverages purchased through the legally authorized outlets, for he installed a still in the basement of the home and distilled whiskey on his own premises. He also made copious quantities of wine and, according to his wife, drank both products to excess.
In 1960, the appellant found life with the respondent unendurable and left him. The house in Belle River was sold and the proceeds divided equally between the parties. After a year’s separation the husband communicated with the wife, promised to mend his ways and she agreed, as she said, to give him “a second chance”. They at first occupied an apartment together, but after a brief period they purchased a house on Greendale Ave. in Windsor and moved thier belongings into it. There they cohabited until July, 1968, when the appellant, again finding conditions intolerable, left the matrimonial home and went to reside in the home of her married daughter, a child of her previous marriage.
From the wife’s account it would appear that the husband did not reform his drinking habits, but on the contrary, he indulged himself more freely than he had done prior to 1960. She does not charge him with acts of great physical violence but states that he did assault her on a number of occasions on one of which he shoved her forcibly against a chimney and caused her some physical injury. This evidence was corroborated by the appellant’s daughter. She referred to an occasion when, being completely disgusted with the respondent’s overindulgence which was the cause of so much unhappiness in their household, she poured 80 gals. of his home-made wine “down the drain”. Her reason for doing so was that the husband was always drunk when she came home from work. While this act infuriated him, he did no more than to raise his hand and threaten that he was going to “fix her”, but he abstained from any act of violence on that occasion. The wife alleges that the husband took bottles of whiskey to bed with him “by the quart”; that he would uncork bottles throughout the night and prevent her from getting needed rest. She took the whiskey away from him, and on one occasion found it necessary to call on her neighbours for assistance. The appellant’s evidence as to her husband’s drinking habits was corroborated by her daughter, Mrs. Judy Tilson, who had lived with her mother and stepfather for a period of nine years. After the daughter married and acquired a home of her own she ceased to visit at her mother’s home because, as she stated, “when you went over there he was drinking and you would be on edge, just scared to death, that you thought he was going to explode”.
Mrs. Tilson stated that when the respondent was drinking heavily he became very abusive towards his wife. She referred to an incident when the respondent “was so drunk that he did not know what he was doing”; that he pushed the petitioner to the floor, held one arm around her neck and grabbed a floorlamp with which to hit her. The witness stated that when she ran her nails down his back he released his hold on the appellant, and Mrs. Tilson then ran out of the house and called upon a neighbour for help. The daughter was not cross-examined by counsel upon her evidence as to the respondent’s conduct. After 1961 the husband frequently absented himself from work due to his heavy drinking. The appellant stated that “he was always drinking and lying in bed drunk”. There is no doubt that the respondent provided the petitioner with food and shelter, but he failed to contribute anything to the cost of her clothing and to her other personal needs. She did not take exception to this, but mentioned it as pointing up his meanness to her in other respects as, e.g., when he objected to her enjoying the television because he was paying the hydroelectric account.
The couple occupied separate bedrooms for a substantial period of their married life for the reason, as stated by the wife, “that his meanness and drinking turned me against him”.
Dr, G. Henkel, a physician who had attended both parties since 1958, testified that the respondent exhibited typical symptoms of chronic alcoholish. He stated “from the physical evidence I have I can honestly say that he is a chronic alcoholic”. Asked if there was any reasonable expectation, in his opinion, of the respondent’s rehabilitation in the near future, he replied “in my opinion I would say not. All the possibilities have been more or less exhausted”.
The doctor made little satisfactory progress in his treatment of the respondent and found it necessary to refer him to a specialist who caused him to be confined to the I.O.D.E. Hospital, a treatment centre for alcoholics.
The doctor expressed the opinion that it would not be possible for the petitioner to live with the respondent without putting her health in jeopardy. He prescribed various tranquillizers, sedatives, hematrinsics and tonics for her use. He stated that her physical condition rendered her sleepless at night, that she was extremely nervous and tense, had lost weight, and suffered from a lack of appetite. In his opinion there was a “connection between her condition as he described it, and her complaints with respect to the husband and his condition of chronic alcoholism”.
On cross-examination the doctor was asked to define chronic alcoholism. He stated:
Well, I can describe that as a condition where a person is a habitual alcoholic. That is, where he consumes practically every day rather big amounts of alcohol, more than what is tolerable to him and something which interferes with his judgment and normal well-being.
Asked for the basis of his opinion as to the respondent being a chronic alcoholic, he stated:
Well, I have seen him on several occasions in my office where he was definitely under the influence of alcohol. He had difficulties to walk straight and couldn’t keep his balance properly, and his speech was slurry, and he presented him with too many symptoms of alcoholism. That is, he had a very upset stomach and tolerance for food and I think this was evidence enough to say that he was a chronic alcoholic.
Asked if he was basing his opinion in part on the complaints made to him by Mrs. Knoll he replied:
Well, I could form my own judgment by having seen him on several occasions when he was under the influence of alcohol, but the opinion has been also formed by information obtained by the relatives and by Mrs. Knoll for the past three years.
I pause to observe that Dr. Henkel’s evidence is subject to certain frailties in that he relies mainly upon hearsay evidence to support his conclusion that the respondent was a “chronic alcoholic”, his difinition of which is also open to question. Then, too, he had no direct contact with the respondent for a period of three years preceding presentation of the petition herein. It is to be noted that s. 4(1)(b) does not use the term “chronic alcoholic” but refers to a respondent’s gross “addiction to alcohol”. Had Dr. Henkel’s evidence stood alone it would have been of doubtful value as a basis for affording relief to the petitioner on the second ground upon which she relies. Nevertheless, it affords substantial corroboration of the uncontradicted testimony of the petitioner and her daughter upon this phase of the case and is highly significant for that reason.
In her evidence Mrs. Tilson stated that her mother “was scared to death to go home and she had gotten so bad in February of 1969 that I took her to a doctor”. Describing her condition prior to consulting Dr. Henkel in February, 1969, the appellant stated that her husband’s chronic over-consumption of alcohol, the assaults and frequent arguments had ruined her nerves completely, and she consulted Dr. Henkel. It was found that she had high blood pressure and was completely run-down, had lost 19 lbs. and she was required to take the medication prescribed by the doctor to which reference has been made.
It should be observed that after the appellant’s daughter, Mrs. Judy Tilson, had completed her testimony counsel for the respondent made the following statement to the Court: MR. DUBE: My Lord, after talking with my client, he is willing to withdraw his defence with respect to the question of divorce.
I still have not been able to resolve the question of alimony with my learned friend. It may be, if we are given time here to talk, we may be able to resolve that question also.
This was followed by a colloquy between Judge and counsel as follows:
MR. KAMIN (Counsel for the petitioner): But I believe it ought to be explained clearly to his lordship that you have spoken to Dr. Henkel.
Mr. DUBE: Yes, I have spoken to Dr. Henkel and I am satisfied.
MR. KAMIN: Unless your lordship . . .?
HIS LORDSHIP: Well, we still have the problem of a divorce.
MR. KAMIN: Yes, I better call Dr. Henkel.
HIS LORDSHIP: It cannot be by consent, you know.
MR. KAMIN: No, I thought my friend might make a certain admission as a result of it.
The respondent was the only witness who testified for the defence. His evidence was very brief and related principally to his income and financial status. He did not contradict the evidence of the plaintiff, her daughter, or of Dr. Henkel. It should be stated, however, that on cross-examination by counsel for the petitioner he indicated that his weekly expense for beer and liquor did not exceed $5; yet he gave no evidence-in- chief on this branch of the case.
Commenting upon the evidence of the plaintiff and her daughter the learned trial Judge stated in his reasons [[1969] 2 O.R. at p. 583, 6 D.L.R. (3d) at p. 204]:
Many of the complaints of both the petitioner and Mrs. Tilson were in the form of words put into their mouths by counsel and were not words of their own choice.
A careful perusal of the transcript does not bear out this criticism of their testimony. I can discern nothing in their language which is indicative of a response to the most causal type of coaching, if that is what the learned trial Judge intended to intimate. If it be true that the appellant exhibited a tendency to exaggerate or colour her evidence, it is rather singular that her testimony and that of her daughter as to the respondent’s conduct towards her was not challenged by him and stands uncontradicted. Furthermore, it was corroborated in a substantial degree by Dr. Henkel whose evidence was unexceptionable.
If the issue determined by the learned trial Judge involved purely a question of fact and his determination therefore was not affected by error in law, an appellate Court should hesitate to interfere with his findings, since in seeing and hearing the witnesses he possessed an advantage which enabled him to decide the facts better than they could be decided by a Court to which those advantages were denied. I approach the task confronting us with that thought uppermost in my mind, and I have examined the learned Judge’s reasons with care and with a view to ascertaining to what extent, if at all, his conclusions were induced by error in law. With deference to the learned Judge’s opinion I am convinced by his reasoning that he misdirected himself in law on more than one aspect of the case as I shall endeavour to demonstrate. It is quite apparent that he put the two grounds upon which the petitioner’s claim for relief was founded in separate compartments and dealt separately with each ground. It seems clear, however, that he failed to take into account the question most vital for consideration in these circumstances, namely, the condition which the husband’s addiction to alcohol produced as manifested by his censurable treatment of his wife during his all too frequent (almost daily) bouts of drinking, which caused so much distress and unhappiness to his wife that she finally reached the breaking point and could no longer endure it.
It is evident that the learned Judge held and gave effect to the view that cruelty within the meaning of s. 3(d) of the Divorce Act was legal cruelty as defined in Russell v. Russell, [1897] A.C. 395 at p. 467, and in Ontario in Bagshaw v. Bagshaw (1920), 48 O.L.R. 52, 54 D.L.R. 634, and in many English and Canadian cases in which the principle there enunciated has been consistently followed and applied, a rule which required proof of conduct of such a character as to acuse danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger. He must have concluded that the concept of cruelty as laid down in those cases was unaffected by the provisions of s. 3 of the Divorce Act, the material portion of which reads:
3. Subject to section 5, a petition for divorce may be presented to a court by a husband or wife, on the ground that the respondent, since the celebration of the marriage,
(d) has treated the petitioner with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
It is interesting to note that Sir William Merdith, C.J.O., who concurred in the judgment of the Court in Bagshaw v. Bagshaw, supra, did so reluctantly, and expressed his disapproval of the harsh principle to which the Court felt bound to give effect. He stated at pp. 60-1 O.L.R., p. 641 D.L.R.:
I reluctantly agree with the disposition of this appeal which is proposed by my brother Ferguson. I agree with him that we are bound by the authorities to hold that the respondent has not made a case entitling her to alimony; that the law should be as he states it to be, is, in my opinion, to be deplored, and it is not, in my judgment, in accordance with modern views as to the relations between husband and wife. To withhold alimony, unless the conduct of the husband is such as to lead to the conclusion that it has impaired, or that it will impair, the physical health or the mentality of the wife, is to say that a husband may subject his wife daily, and even hourly, to such treatment as makes her life a veritable hell upon earth and she is without remedy if she is robust enough to suffer it all without impairment of her physical health or her mentality.
In enacting the Divorce Act of 1968, Parliament has expressed the public will to soften the rigours of the marriage bond as recognized in English canon law and founded upon the thesis that the general happiness of married life was secured by the indissolubility of the marriage bond, even though in individual cases its principles operated with great severity. Unhappy spouses were required to sleep in their beds as they had made them except in those extreme cases as outlined in Lord Stowell’s judgment in Evans v. Evans (1790), 1 Hag. Con. 35, 161 E.R. 466.
Over the years the Courts have steadfastly refrained from attempting to formulate a general definition of cruelty. As used in ordinary parlance “cruelty” signifies a disposition to inflict suffering; to delight in or exhibit indifference to the pain or misery of others; mercilessness or hard-heartedness as exhibited in action. If in the marriage relationship one spouse by his conduct causes wanton, malicious or unnecessary infliction of pain or suffering upon the body, the feelings or emotions of the other, his conduct may well constitute cruelty which will entitle a petitioner to dissolution of the marriage if in the Court’s opinion, it amounts to physical or mental cruelty “of such a kind as to render intolerable the continued cohabitation of the spouses”. That is the standard which the Courts are to apply, and in the context of s. 3(d) of the Act that standard is expressed in language which must be taken to exclude the qualifications laid down in Russell v. Russell, supra, and in the numerous other cases which have followed and applied the ancient ecclesiastical rule in matrimonial disputes. This is in accordance with the view taken in Zalesky v. Zalesky (1968), 1 D.L.R. (3d) 471, 67 W.W.R. 104; Paskiewich v. Paskiewich (1968), 2 D.L.R. (3d) 622, and Bonin v. Bonin (1969], 5 D.L.R. (3d) 533. The only decision contra is that of Tyrwhitt-Drake, Co. Ct. J., sitting as Local Judge in Delaney v. Delaney (1968), 1 D.L.R. (3d) 303, 66 W.W.R. 275. Reference may also be made upon this point to four recent decisions in the New Brunswick Courts: Hawthorne v. Hawthorne (1969), 1 N.B.R. (2d) 803; Maund v. Maund (1969), 1 N.B.R. (2d) 547; Chouinard v. Chouinard (1969), 1 N.B.R. (2d) 582, and Bustin v. Bustin (1969), 1 N.B.R. (2d) 496. Care must be exercised in applying the standard set forth in s. 3(d) that conduct relied upon to establish cruelty is not a trivial act, but one of a “grave and weighty” nature, and not merely conduct which can be characterized as little more than a manifestation of incompatibility of temperament between the spouses. The whole matrimonial relations must be considered, especially if the cruelty consists of reproaches, complaints, accusations, or constant carping criticism. A question most relevant for consideration is the effect of the conduct complained of upon the mind of the affected spouse. The determination of what constitutes cruelty in a given case must, in the final analysis, depend upon the circumstances of the particular case having due regard to the physical and mental condition of the parties, their character and their attitude towards the marriage relationship.
In the present case it is the cumulative effect of the acts of the defendant upon the petitioner which must be considered and given proper weight. The wife’s return to her home after a day’s work only to find her husband in an inebriated state, given to quarrelsomeness and abuse, heaping insult upon insult and indignity upon indignity, was clearly conduct amounting to mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. I cannot be convinced that our community standards require a wife to tolerate such an intolerable situation. It is true that she endeavoured to make the best of the difficult straits in which she found herself and endured it for a number of years. She was questioned upon that point, and I can best present her explanation for having put up with it for so long a period by quoting from her own testimony.
Q. Why were you afraid to go home?
A. I was afraid to go home because he was home drunk. He was so violent. He always raised his fist at me and I did not have anything to do with him, I just did not want him to abuse me and when I came home I went silently into my room just to be out of his way. He kicked the door in
— kicked a hole right through the door. Knocked my pictures off the walls. All these things he probably does not remember because he was too drunk.
Q. What I cannot understand, for some 20 years you were going home?
A. I was going home, yes, but it was not a happy place to go to.
Q. Why, at the end, did you say you were afraid to go home?
A. Because it got so bad it was impossible. It was impossible to remain any longer. I am no longer a young woman. The learned Judge laid emphasis upon the fact that he could find no intent on the part of the defendant to injure his wife, relying upon the authority of Kaslefsky
v. Kaslefsky, [1950] 2 All E.R. 398, for the proposition that such intent must be shown. He was not advised by counsel that the judgment in that case was expressly overruled by the House of Lords in Gollins v. Gollins, [1963] 2 All E.R. 966, as regards the necessity for proving intention to injure if cruelty is to be established. It was there laid down that whether cruelty, as a matrimonial offence, has been established is a question of fact and degree, which should be determined by taking into account the particular individuals concerned and the particular circumstances of the case, rather than by any objective standards; that accordingly, in cases where the two spouses were of normal physical and mental health, and the conduct of the respondent spouse, so considered, was so bad that the other should not be called upon to endure it, cruelty was established, and then it did not matter what was the respondent’s state of mind, e.g., it was immaterial whether the defendant’s conduct was “aimed at” the other spouse or due to unwarranted indifference, attributable, perhaps, to selfishness. It has been held that malevolent intention, while not essential to cruelty, is a most important element where it exists. In the present case the respondent received repeated warnings from his wife that she would leave him unless he mended his ways, and it must have been obvious to him that his conduct, persisted in despite such warnings, was causing great unhappiness and much pain and suffering to his wife and that if he continued in that course he would eventually break her spirit and impose a strain upon her which went beyond the point of endurance.
The petitioner’s second ground for the relief claimed herein
is based on s. 4(1) (b) of the Divorce Act which reads:
4(1) In addition to the grounds specified in section 3, and subject to section 5, a petition for divorce may be presented to a court by a husband or wife where the husband and wife are living separate and apart, on the ground that there has been a permanent breakdown of their marriage by reason of one or more of the following circumstances as specified in the petition, namely:
(b) the respondent has, for a period of not less than three years immediately preceeding the presentation of the petition, been grossly addicted to alcohol . . . and there is no reasonable expectation of the respondent’s rehabilitation within a reasonably foreseeable period;
Section 4(2) is also material and provides:
(2) On any petition presented under this section, where the existence of any of the circumstances described in subsection
(1) has been established, a permanent breakdown of the marriage by reason of those circumstances shall be deemed to have been established.
The question of intent was also present in the mind of the learned Judge when he dealt with this branch of the case, for he stated [at p. 585 O.R., p. 206 D.L.R.]:
There is no evidence that he drank for the purpose of aggravating her. The reason does not appear. I do not think I should make any assumption of the cause.
He then posed the following question to himself without answering it [p. 586 O.R., p. 207 D.L.R.]: “Must the effect be upon the petitioner only or is it the effect upon any reasonably minded spouse?” Clearly the test must be what effect it had upon the petitioner with due regard to her own particular temperament, sensibilities and state of health. In Lauder v. Lauder, [1949] P. 277 at p. 308, Pearce, J., stated:
Cruelty cases, more than any other class of case, depend particularly on a careful estimate of the witnesses. For in a cruelty case the question is whether this conduct by this man to this woman or vice versa is cruelty. How far a spouse has to depart from the normal standards of kindness and self- control that are the basis of married life and how great an effect that departure has to have on the other spouse before it consititues cruelty is always a question of degree, depending largely on the temperament, circumstances, and health of each party.
In the course of his reasons the learned Judge stated: “The respondent here admits consumption of alcohol but says it is excessive.” I can find no evidence in the record to support this finding. I note, however, that the respondent pleaded in his answer, para. 4: “The respondent admits the consumption of alcohol but not excessively.” It is, perhaps, significant that the learned Judge adopted substantially the language of the pleading. The learned Judge would also appear to have overlooked the fact that the respondent had, through his counsel, expressed a desire to withdraw his defence after conferring with Dr. Henkel, and that when he did take the witness stand his evidence-in-chief was confined to a statement as to his earnings and assets.
Great importance was attached by the learned Judge to a quotation from the judgment of Cairns, J., in the Probate, Divorce and Admiralty Court quoted in the judgment of the Court of Appeal in Hall v. Hall, [1962] 3 All E.R. 518 at p. 521, although the judgment from which that quotation was taken was reversed by the Court of Appeal as the report clearly indicates. It should be added that there is no legislation in England comparable to s. 4(1) (b) of our Divorce Act. The Australian case referred to by the learned Judge, Sullivan v. Sullivan, [1954] 1 V.L.R. 67, was considered by the High Court of Australia in Dalgleish v. Dalgleish (1955), 93 C.L.R. 595. I extract from the reasons for judgment of the High Court in that case the following passage which appears at pp. 601-2:
It is of course as unnecessary as it is fruitless to attempt to define drunkenness or to say what constitutes an habitual drunkard. The task has been discussed if not
attempted on a number of occasions and SHOLL J. has made a survey of a number of cases in Sullivan v. Sullivan (1954) 1 V.L.R. 67. It suffices in this case to say that the vital question for consideration when the allegation is made that a man is an habitual drunkard is the condition which his addiction to drink produces and not necessarily or solely the extent to which he partakes of liquor. There is nothing in the evidence called on behalf of the respondent to suggest that his drinking habits resulted habitually in drunkenness over the necessary period; on the contrary, it rather suggests that his heavy drinking habits did not habitually produce such a departure from normal standards of conduct as could fairly be classified as drunkenness. Accordingly there is nothing to support the suggestion that upon this evidence the appellant was entitled to a decree. It should be added that this contention does not appear to have been raised upon the hearing. We were informed upon the hearing of this appeal that neither counsel addressed the learned trial judge and, apparently, they treated the suit as one which merely raised a disputed question of fact for determination.
The uncontradicted evidence of the petitioner, corroborated as it was by her daughter and Dr. Henkel, provides overwhelming proof that the respondent for a period of not less than three years immediately preceding the presentation of the petition had been grossly addicted to alcohol and that there was no reasonable expectation of his rehabilitation within a reasonably foreseeable period. The learned Judge’s rejection of that ground for the relief sought herein was contrary to the weight of the evidence and cannot be supported.
I cannot avoid the conclusion that if the relevant authorities which I have discussed had been presented to the learned Judge by counsel at trial he might well have come to a decision favourable to the plaintiff on the first if not on both grounds upon which the petition was presented. The appeal should be allowed with costs, the judgment in appeal set aside, and it should be directed that instead thereof judgment should issue in favour of the petitioner for a decree nisi dissolving the marriage herein with costs of the proceedings below. The petitioner is also entitled to an order for maintenance, but in view of the sparseness of the evidence on the record relevant to that issue, and the learned trial Judge not having adjudicated upon that phase of the claim, there should be a reference to the Master to fix and determine the amount of maintenance to which the petitioner is entitled. She shall also have the taxable costs of the reference.
Appeal allowed.