Frame v. Smith and Smith, (1987) 78 N.R. 40 (SCC)

• Judge: Dickson, C.J., Beetz, McIntyre, Chouinard, Lamer, Wilson and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 20, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1987), 78 N.R. 40 (SCC);42 DLR (4th) 81;[1987] ACS no 49;9 RFL (3d) 225;[1987] SCJ No 49 (QL);[1988] 1 CNLR 152;42 CCLT 1;78 NR 40;6 ACWS (3d) 263;[1987] CarswellOnt 347;[1987] 2 SCR 99;1987 CanLII 74 (SCC);JE 87-1003;AZ-87111056;23 OAC 84;42 CCLI 1

Frame v. Smith (1987), 78 N.R. 40 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Richard Hugh Frame v. Eleanor Margaret Smith and Johnston Smith

(No. 18164)

Indexed As: Frame v. Smith and Smith

Supreme Court of Canada

Dickson, C.J., Beetz, McIntyre, Chouinard, Lamer, Wilson and La Forest, JJ.

September 17, 1987.

Summary:

A husband and wife separated in 1970 after eight years of marriage. There were three children of the marriage ages seven years, three years and one year at the time of separation. In 1971 a Manitoba Family Court judge awarded the wife custody of the children with "generous visiting privileges" to the husband. The wife subsequently left Manitoba without telling the husband where she was going. The husband found the children in Ontario but the wife still denied him access. In 1974 the Ontario Supreme Court ordered the wife to provide specified access to the husband. The wife subsequently moved the children to Colorado remaining there until the husband located them, at which time she returned to Toronto. The wife limited or prevented telephone contact between the husband and the children, diverted gifts and letters, changed the children's last name and their religion. The husband brought an action against the wife for damages for interference with his access rights. The husband claimed general damages of $1,000,000.00, punitive damages of $500,000.00 and special damages of $25,000.00. The wife applied to strike out the statement of claim on the ground that it disclosed no reasonable cause of action.

The Ontario Supreme Court allowed the wife's application. The husband appealed.

The Ontario Court of Appeal, in an endorsement on the record, dismissed the appeal. The husband appealed.

The Supreme Court of Canada, Wilson, J., dissenting, dismissed the appeal. The court held that the provisions of the Ontario Family Law Reform Act provided a scheme for custody and access orders and their enforcement. The court stated that it would not be in the best interests of the children to allow a civil action for a statutory breach or an action for breach of fiduciary duties in custody and access cases.

Wilson, J., dissenting, would have allowed the husband's action based on breach of fiduciary duties where there would be no injury to the children. Wilson, J., opined that the concept of breach of fiduciary duties could be extended to the area of custody and access, where the action is found to be in the best interests of the children and would not impair child support or affect the children's loyalties.

Equity - Topic 3602

Fiduciary or confidential relationships - General - Elements of a fiduciary relationship - A judge of the Supreme Court of Canada stated that "fiduciary duties are frequently imposed on those who are capable of affecting not only the legal interests of the beneficiary but also the beneficiary's vital non-legal or practical interests" - See paragraph 62.

Equity - Topic 3606

Fiduciary or confidential relationships - General principles - Fiduciary relationship - What constitutes - A husband was denied access to his children by the custodial parent - The husband brought an action against the wife for damages for breach of fiduciary duties - The Supreme Court of Canada upheld the dismissal of the husband's action - The court stated that the legislation (the Ontario Family Law Reform Act) provided a comprehensive scheme for determining custody and access rights and their enforcement - The court stated that a breach of a statutory authorized order does not give rise to a fiduciary relationship on which a cause of action can be grounded - See paragraphs 17 to 21.

Equity - Topic 3645

Fiduciary or confidential relationships - Breach of fiduciary relationship - By custodial parent - A husband was denied access to his children by the custodial parent - The husband brought an action against the wife for damages for, inter alia, breach of fiduciary duties - The Supreme Court of Canada upheld the dismissal of the husband's action - Wilson, J., in a dissenting judgment discussed the availability of an action for breach of fiduciary duties - The judge stated that the concept of breach of fiduciary duties should be extended to the situation where the custodial parent denies the noncustodial parent access in defiance of a court order - The judge stated further that the action should only be allowed where there is no risk to the support of the children and no risk of a harmful conflict of loyalties arising in the children - See paragraphs 56 to 78.

Equity - Topic 3655

Fiduciary or confidential relationships - Breach of fiduciary relationship - Damages - A judge of the Supreme Court of Canada in a dissenting judgment stated that where the normal remedies of imposition of a constructive trust and the accounting of profits is not appropriate for a breach of fiduciary duties, the court can order equitable compensation - The judge stated that the purpose of equitable compensation is to "restore to the plaintiff what has been lost through the defendant's breach or the value of what has been lost" - See paragraph 79.

Family Law - Topic 1808

Custody and access - Children - General - At common law - The Supreme Court of Canada stated that "the interest of parents in the love and companionship of their children and the reciprocal interest of children in the love and companionship of their parents were not, at common law, accorded specific protection" - See paragraph 6.

Family Law - Topic 1808

Custody and access - Children - General - At common law - Common law actions - The Supreme Court of Canada stated that the old actions of enticement, harbouring or seduction or loss of services that protected a parent's interest in his children have been abolished by the provisions of the Family Law Reform Act - See paragraph 6.

Family Law - Topic 1808

Custody and access - Children - General - At common law - In a dissenting judgment, a judge of the Supreme Court of Canada stated that at common law, there was no right of access to children - The right of access therefore does not exist independently of statute - See paragraph 51.

Family Law - Topic 2168

Custody and access - Children - Enforcement of orders - Procedure - General - A husband was denied access to his children by the custodial parent - The husband brought a civil action against the wife for damages for interference with his access rights and for breach of fiduciary duty - The Supreme Court of Canada upheld the dismissal of the husband's action - The court stated that the legislation (the Ontario Family Law Reform Act), provided a comprehensive scheme for custody and access rights and their enforcement - The court stated that "the courts will not permit violence to be done indirectly to a legislative scheme" - See paragraph 19.

Family Law - Topic 2171

Custody and access - Children - Enforcement of orders - Civil action - A husband was denied access to his children by the custodial parent - The husband brought an action against the wife for damages for interference with his access rights - The Supreme Court of Canada upheld the dismissal of the husband's action - The court stated that the Ontario Family Law Reform Act provided a comprehensive scheme for dealing with custody and access and their enforcement, thereby abolishing any other civil actions to enforce an order under the Act - See paragraphs 6 to 16; 50 to 55.

Family Law - Topic 2176

Custody and access - Children - Enforcement of orders - Withholding maintenance - A husband was denied access to his children by the custodial parent - In discussing the possible recourses the noncustodial parent had against the custodial parent, a judge of the Supreme Court of Canada stated that "the option of refusing payment of child maintenance in order to secure a right of access is not available to the noncustodial spouse" - See paragraph 66.

Practice - Topic 2200

Pleadings - Striking out pleadings - General principles - A judge of the Supreme Court of Canada in a dissenting judgment stated that "the power to strike a pleading is to be exercised sparingly and only when there is no doubt that no cause of action exists. It is also well established that a pleading should not be struck unless it is incurable by a proposed amendment" - See paragraph 36.

Torts - Topic 5706

Conspiracy - What constitutes - A husband was denied access to his children by the actions of his former wife and her husband - The husband brought an action against the wife for damages for interference with his right of access including damages for the tort of conspiracy - The Supreme Court of Canada upheld the dismissal of the husband's action - Wilson, J., in a dissenting judgment discussed the tort of conspiracy - The judge opined that the tort of conspiracy should not be extended to custody and access situations - See paragraphs 8 and 39 to 44.

Torts - Topic 8701

Duty of care - Particular relationships - Claims for nervous shock - General - A husband was denied access to his children by the custodial parent - The husband brought an action against his wife for, inter alia, damages for intentional infliction of nervous shock - The Supreme Court of Canada upheld the dismissal of the husband's action - Wilson, J., in a dissenting judgment discussed the tort of intentional infliction of nervous shock - The judge refused to extend the tort to custody and access situations - See paragraphs 45 to 49.

Cases Noticed:

Schrenk v. Schrenk (1981), 32 O.R.(2d) 122 (Ont. H.C.), affd. (1982), 36 O.R.(2d) 480 (C.A.), consd. [paras. 4, 29].

Kungl v. Schiefer, [1962] S.C.R. 443, refd to. [paras. 7, 38].

Gottlieb v. Gleiser, [1957] 3 All E.R. 715, refd to. [para. 7].

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191, refd to. [paras. 8, 39].

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455; 124 D.L.R.(3d) 193, refd to. [paras. 13, 74].

Saskatchewan Wheat Pool v. Government of Canada, [1983] 1 S.C.R. 205; 45 N.R. 425; 143 D.L.R.(3d) 9; 43 C.C.C.(2d) 119, appld. [para. 14].

St. Anne-Nackawic Pulp and Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; 68 N.R. 112; 73 N.B.R.(2d) 236; 184 A.P.R. 236, refd to. [paras. 15, 19].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 36].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Attorney General of Canada, [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 36].

Moore Dry Kiln Co. of Canada Ltd. v. Green Cedar Lumber Co. (1982), 37 O.R.(2d) 300 (H.C.), refd to. [para. 36].

Dominion Bank v. Jacobs, [1951] O.W.N. 421, refd to. [para. 36].

Mogul Steamship Co. v. McGregor, Gow and Co. (1889), 23 Q.B.D. 598 (C.A.), refd to. [para. 41].

Mulcahy v. The Queen (1868), L.R. 3 H.L. 306, refd to. [para. 43].

Wilkinson v. Downton, [1897] 2 Q.B.D. 57, refd to. [para. 45].

Guay v. Sun Publishing Co. Ltd., [1953] 2 S.C.R. 216, refd to. [para. 46].

Radovskis v. Tomm (1957), 21 W.W.R.(N.S.) 658 (Man. Q.B.), refd to. [para. 46].

Lumley v. Gye (1853), 2 El. & Bl. 216; 118 E.R. 749, refd to. [para. 48].

Rookes v. Barnard, [1964] A.C. 1129 (H.L.), refd to. [para. 48].

Ratcliffe v. Evans, [1892] 2 Q.B. 524, refd to. [para. 48].

R. v. Greenhill (1836), 4 Ad. & E. 624; 111 E.R. 922, refd to. [para. 51].

M v. M (child: access), [1973] 2 All E.R. 81, refd to. [para. 53].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 57].

International Corona Resources Ltd. v. Lac Minerals Ltd. (1986), 53 O.R.(2d) 737 (H.C.), refd to. [para. 57].

Standard Investments Ltd. v. Canadian Imperial Bank of Commerce (1985), 52 O.R.(2d) 473, refd to. [para. 57].

English v. Dedham Vale Properties Ltd., [1978] 1 All E.R. 382, refd to. [para. 57].

Tufton v. Sperni, [1952] 2 T.L.R. 516, refd to. [para. 57].

R.H. Deacon and Co. v. Varga (1972), 30 D.L.R.(3d) 653 (Ont. C.A.), affd. [1975] 1 S.C.R. 39, refd to. [para. 61].

Reading v. Attorney General, [1951] A.C. 507 (H.L.), refd to. [para. 62].

Attorney General v. Goddard (1929), 98 L.J. (K.B.) 743, refd to. [para. 62].

Jirna Ltd. v. Mister Donut of Canada Ltd. (1971), 22 D.L.R.(3d) 639 (Ont. C.A.), affd. [1975] 1 S.C.R. 2, refd to. [para. 63].

Hospital Products Ltd. v. United States Surgical Corp. (1984), 55 A.L.R. 417, refd to. [para. 64].

H.L. Misener and Son Ltd. v. Misener (1977), 21 N.S.R.(2d) 92; 28 A.P.R. 92; 77 D.L.R.(3d) 428 (N.S.C.A.), refd to. [para. 64].

Wright v. Wright (1973), 1 O.R.(2d) 337 (C.A.), refd to. [para. 66].

Woodburn v. Woodburn (1975), 11 N.S.R.(2d) 528; 5 A.P.R. 528; 21 R.F.L. 179 (S.C.), refd to. [para. 67].

Jones v. Jones (1970), 1 R.F.L. 295 (Ont. C.A.), refd to. [para. 67].

Currie v. Currie (1975), 18 R.F.L. 47 (Alta. S.C.), refd to. [para. 67].

Donald v. Donald (1973), 6 N.B.R.(2d) 665, refd to. [para. 67].

Nayar v. Nayar (1981), 24 R.F.L.(2d) 400 (B.C.C.A.), refd to. [para. 67].

Fast v. Fast (1983), 23 Sask.R. 96; 33 R.F.L.(2d) 337 (Sask. C.A.), refd to. [para. 67].

Woods v. Racine and Racine, [1983] 2 S.C.R. 173; 48 N.R. 362; 24 Man.R.(2d) 314, refd to. [para. 67].

Canadian Aero Service Ltd. v. O'Malley, [1974] S.C.R. 592, refd to. [para. 68].

Attorney General v. Sharp, [1931] 1 Ch. 121 (C.A.), refd to. [para. 75].

Attorney General v. Premier Line, Ltd., [1932] 1 Ch. 303, refd to. [para. 75].

Seager v. Copydex Ltd., [1967] 1 W.L.R. 923 (C.A.), refd to. [para. 79].

Dawson and Mason Ltd. v. Potter, [1986] 2 All E.R. 418 (C.A.), refd to. [para. 79].

Nocton v. Lord Ashburton, [1914] A.C. 932 (H.L.), refd to. [para. 79].

U.S. Surgical Corp. v. Hospital Products International Pty. Ltd., [1982] 2 N.S.W.L.R. 766 (S.C., Eq. Div.), refd to. [para. 79].

Zik v. High (1981), 35 O.R.(2d) 226 (H.C.), refd to. [para. 82].

Seager v. Copydex Ltd. (No. 2), [1969] 1 W.L.R. 809, refd to. [para. 83].

Statutes Noticed:

Children's Law Reform Act, S.O. 1982, c. 20, sect. 19(a) [paras. 11, 55]; sect. 19(d) [para. 55]; sect. 24(1) [paras. 11, 53]; sect. 35 [paras. 11, 53]; sect. 36 [para. 11]; sect. 37(1) [paras. 11, 55, 66]; sect. 37(2), sect. 37(5) [para. 11]; sect. 38 [paras. 11, 55]; sect. 39 [paras. 11, 55, 66]; sect. 40 [para. 55]; sect. 60 [para. 82].

Divorce Act, 1985, S.C. 1986, c. 4, sect. 16(10) [para. 65].

Family Law Reform Act, R.S.O. 1980, c. 152, sect. 69(4) [paras. 6, 31, 38].

Rules of Practice (Ont.), rule 126 [paras. 4, 29].

Authors and Works Noticed:

Austin, R.P., The Corporate Fiduciary: Standard Investments Ltd. v. Canadian Imperial Bank of Commerce (1986-87), 12 Can. Bus. L.J. 96, pp. 96-97 [para. 58].

Brown, Harold, Franchising -- A Fiduciary Relationship (1971), 49 Texas Law Rev. 650, p. 664 [para. 64].

Burns, Peter, Civil Conspiracy: An Unwieldy Vessel Rides a Judicial Tempest (1982), 16 U.B.C.L. Rev. 229, p. 254 [para. 41].

Davidson, Ian E., The Equitable Remedy of Compensation (1982), 13 Melbourne Univ. Law Rev. 349, p. 352 [para. 82].

Finn, P.D., Fiduciary Obligations (1977) [para. 58].

Fleming, John G., The Law of Torts (6th Ed. 1983), p. 32 [para. 46].

Goff, Robert and Gareth Jones, The Law of Restitution (2nd Ed. 1978), p. 490 [para. 57].

Halsbury's Laws of England (4th Ed. 1976), vol. 16, p. 815, para. 1215 [para. 75].

Heffey, Peter G., The Survival of Civil Conspiracy: A Question of Magic or Logic (1975), 1 Monash Univ. Law Rev. 136, generally [para. 41].

Jones, Gareth, Unjust Enrichment and the Fiduciary's Duty of Loyalty (1968), 84 L.Q.R. 472, generally [para. 59].

Keeton, George Williams and L.A. Seridan, Equity (1969), pp. 336-352 [para. 59].

Maidment, Susan, Child Custody and Divorce: The Law in Social Context (1984), pp. 93-95 [para. 51].

Mason, Sir Anthony, Themes and Prospects, in P. Finn, ed., Essays in Equity (1985), p. 246 [para. 58].

McLeod, James G., Annotation to O'Byrne v. Koresec (1986), 2 R.F.L. (3d) 104, p. 105 [paras. 20, 66].

Milner, Alan, Injuries to Consortium in Modern Anglo-American Law (1958), 7 Int. & Comp. Law Q. 417, pp. 429 [para. 10]; 435-436 [para. 7].

Mosberg, Clay A., A Parent's Cause of Action for the Alienation of a Child's Affection (1973-74), 22 Kansas Law Rev. 684, pp. 689-690 [para. 7].

Ontario Law Reform Commission, Report on Family Law (1969), generally [para. 12].

Restatement of the Law of Torts (1938), p. 699 [para. 6].

Shepherd, J.C., The Law of Fiduciaries (1981), pp. 4-8 [para. 58]; 94 [para. 59].

Solomon, Robert M., Bruce P. Feldthusen and Stephen J. Mills, Cases and Materials on the Law of Torts (2nd Ed. 1986), p. 6 [para. 32].

Vinter, E., A Treatise on the History and Law of Fiduciary Relationships and Resulting Trusts (3rd Ed. 1955), generally [para. 59].

Weinrib, Ernest J., The Fiduciary Obligation (1975), 25 U.T.L.J. 1, generally [para. 59].

Williams, Glanville, The Foundations of Tortious Liability (1939), 7 Cambridge Law J. 111, p. 131 [para. 33].

Counsel:

Stephen B. Smart, for the appellant;

Gregory Frink, for the respondents.

Solicitors of Record:

Osler, Hoskin, Harcourt, Toronto, Ontario, for the appellant;

Gregory Frink, Ottawa, Ontario, for the respondents.

This appeal was heard on March 20, 1986, before Dickson, C.J., Beetz, McIntyre, Chouinard, Lamer, Wilson and La Forest, JJ., of the Supreme Court of Canada. The decision of the Supreme Court of Canada was delivered on September 17, 1987, in both official languages, when the following opinions were filed:

La Forest, J. (Dickson, C.J., Beetz, McIntyre and Lamer, J., concurring) - see paragraphs 1 to 22;

Wilson, J., dissenting - see paragraphs 23 to 85.

Chouinard, J., took no part in the judgment.