Levick v. Levick, (1969) 3 N.S.R. 1965-69 146 (CA)

• Judge: McKinnon, C.J.N.S., Coffin and Cooper, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 07, 1969
• Jurisdiction: Nova Scotia
• Citations: (1969), 3 N.S.R. 1965-69 146 (CA)

Levick v. Levick (1969), 3 N.S.R. 1965-69 146 (CA)

MLB headnote

Levick v. Levick

Indexed As: Levick v. Levick

Nova Scotia Supreme Court

Appeal Division

McKinnon, C.J.N.S., Coffin and Cooper, JJ.A.

January 7, 1969.

Summary:

This appeal arose out of the petition of a husband for divorce from his wife on the ground of adultery. The husband discovered that his wife had an adulterous relationship with another man. The wife promised not to see the man again and the husband continued to reside with his wife, but on bad terms. Subsequently, the wife refused to have sexual relations with her husband and again met the other man alone on two occasions. As a result, the marital relationship deteriorated further and the husband left the matrimonial home. The husband brought a petition for divorce. In an unreported judgment Bissett, J., of the Nova Scotia Court for Divorce and Matrimonial Causes found that the wife committed adultery, that the adultery was condoned by the husband, but that the adultery was revived by the subsequent conduct of the wife. Bissett, J., granted a decree nisi. The Nova Scotia Court of Appeal dismissed the wife's appeal.

The Court of Appeal affirmed the finding of the trial court that the wife committed adultery and that the adultery was condoned by the husband.

The Court of Appeal held that the conduct of the wife after the condonation of her adultery revived the adultery and enabled the husband to base his petition upon it. The Court of Appeal stated that condonation is forgiveness with an implied condition that the injury shall not be repeated and that the condoning party shall be treated with "conjugal kindness". The Court of Appeal stated that a condoned marital offence can be revived by wrongful conduct which is not itself sufficient grounds for divorce. The Court of Appeal held that the conduct of the wife in continuing to meet the other man and refusing sexual relations with her husband did not constitute treatment of the husband with "conjugal kindness".

Family Law - Topic 3867

Divorce - Circumstances when decree refused - Condonation - Revival of offence - Husband condoned adultery of wife - Wife continued to meet other man and refused to have sexual relations with husband - The Nova Scotia Court of Appeal held that the conduct of the wife revived the previously condoned adultery - The Court of Appeal granted husband's petition for divorce.

Cases Noticed:

Herbert v. Herbert, [1936] 3 D.L.R. 141; [1936] O.R. 432, folld.

Henderson v. Henderson and Crellin, [1944] A.C. 43, folld.

Carson v. Carson and Stoyek, [1964] 1 W.L.R. 511, refd to.

Beard v. Beard, [1946] P. 8; 114 L.J.P. 33; [1945] 2 All E.R. 306; 61 T.L.R. 555, appld.

Higgins v. Higgins and Bannister, [1943] P. 58; [1943] 2 All E.R. 86; 112 L.J.P. 55; 169 L.T. 45, folld.

Ainley v. Ainley, [1945] P. 27; [1945] 1 All E.R. 265; 172 L.T. 185, not folld.

Durant v. Durant (1825), 1 Hag. Ecc. 733, folld.

Beale v. Beale, [1951] P. 48, appld.

Richardson v. Richardson, [1950] P. 16, appld.

Cundy v. Cundy, Smith and Finch, [1956] 1 All. E.R. 245, appld.

Stevenson v. Stevenson (1958), 26 W.W.R. 211, refd to.

Heath v. Heath (1959), 22 D.L.R.(2d) 269; 31 W.W.R. 508, refd to.

Winscom v. Winscom and Plowden (1863), 3 Sw. & Tr. 380; 33 L.J. Mat. 45; 164 E.R. 1322, refd to.

Chambers v. Chambers (1955), 15 W.W.R. 35; [1955] 2 D.L.R. 716, refd to.

Dackow v. Dackow and Rozdeba, [1948] 2 W.W.R. 310, folld.

McMaster v. McMaster et al. (1968), 69 D.L.R.(2d) 404, refd to.

Statutes Noticed:

Divorce Act, S.C. 1967-68, c. 24, sect. 25(2)(a).

Counsel:

R.A. Kanigsberg, Q.C., for the respondent;

D.A. Kerr, Q.C., for the appellant.