W. W. i . 408)

(51))

RE VANDEN BERG AND GUIMOND

111

RE VAlfDENlERC AJm GUIMOND

(1 9 68) , 1 D. L.R. (3 d ) 573 (al s o repo rte d :

66

W. W. i . 408) Ma n i taba

Court

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Appe a l ,

Free dman .

Dickson J J .A • • 25 October 1968

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RE VANDENBERG AND GUlMOND

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At common. I,.. the ri,ht of the mother of an iIIeritimat.e child .. ~todJ' ......up~ Thi, ..... later modil'i~ by !.he equitable nil l!l&kinC the willa ... of the child ,..ra~nt.. Howe'I,r, before the CoIIII"t'. equitable jUri"'!;eti,n. all. bolo alled into .etlon the Court mlUlt be u*&.d that it wu not. merel, better for the child but _ntiel Or durt, rilht for th, child', "'ety or ..elfare in MIme nry IleriolU and ill'l.portaat rupeet tbt the mother'. rirhLt be .uperaeded. The Cl&iU Wall,,., Ad, R.S.lrI . 195., Co 54, bu not chanced U. common. law~it, position. Under L 110 of the Act the Coun eaD only .unidl! the right of guardlalUlhip and cual4d, ,lYen to the mother af an iIIecitimat.e child by the Act if the Collrt find, it "p",per 10 to do", Th, Court mllst ...k itself, "R.. tbe DlOth",. done an1tMnC to diatnt.it.le her to ruardianship!" And in aDJ:werinc thi. quntion the Court mu.t ap ply:.he tut for itll equiLlble jurisdiction: "Is it euential or clearly rieM for the weUare of the child in .ome nry KriolU and import.a.Dt raped that the mother', I'uardian.hip rirht be .uperseded!" Clearly a btlancine of financial eonalde .... tion. i. not a proper ~und for deter· miniDI' whether clUtody ill to be awarded to the natural ItIOther or to die putlltin father. Nor an! tha prospect of eonyent life for the n!liciolDl tra ining of a Roman Catholic child or the influence of life on a Rue,..,a. tion for an Indian child eonsideration. entitlinc a Court to taka from a Roman Catholic mother of Indian de~nt the custody of an ilIq;timate child born to ber. (E:.: 1'. K ..... (1804). 1 Bos. &. PuJ. (N.R.) u8, 127 E.R. 416 ; Ra Alder 09lS), 12 D.lJt. 492, 28 O.l...R. 419; Fro,! ... B.~It. (1943] 3 W .W .R. 337; R, Aldn-rtoo". A/tten..a ... 11. G'i ..n (1961). 32 D.L.R. (2d) 71.38 W.W.R. 1; R. t. (1955] 2 Q.B. 479; TIt,~ ... tr. Nu", Ra Cart,.. a ... I ... /a ..' (1883). 10 Q.B.D. 454: TIta Qvano •. Banullrda. JOft"', CUa, [1891J 1 Q.B. 194; atfd nil IUI'JIl.. BaMIGrda •. McHwi". [1891] A.C. 388: R. G.lru,o (1916),30 D.1..R. 595. 36 O.1..R. MO ; Wni •. Kore~" . [1942] O.W.N . 210 [atfd at p. 536); Wd,,, •. BII,...U. {19U] 01 D.1..R. 0139. [19401] O.R. 526: Marti.... d at tr. DuI_U. [1950] 01 D.L. R. 1, {1950] S.C.R. 737; Maa, aM MQ.neur in th. d.,.ion) thlt 1M de.lr. "r the nlolhu of In llIerltimate chdd .1 to h. CII,lod)' i. I",numl,. to i.e ~on.ider.d Of (OIlT'I, If it un be .h•• " Ihfll it would 1>1' .Jellllll,"I" to the intertlt of the child th, t It .hould be delive red to the cu.tody of the moth.r or of In, perao" In who. cUIlod)' .he d"il't'. It to be, th e Court, nuei.l"r ItII juri,_ didion, .1 it II ... ,,}'. doe _ In l uch • ('.... With. new 1.0 th, bt~ftt of the (hlld, would not Ittl bound to at«de to the wilhu of the mother.

The principles enuncia ted in Barllordo v. McHuah were followed in 1916, in Re Gell'ano, 30 D.L.R. 595, 36 O.L.R. 630, where Mel'edith, C.J.O., said , at p. 597: It il Mttled law that the dealre of the mothe r of an Uleritimate child u to III custody II prilnully t o be (onlldered and mUlt t.. liven effcel to, unital It would be prejudidal to the child'l Int.uel~ If it \
As has been indicated, at common law the right of the mother of an illegitimate child to custody was supreme. Th is,

(580)

RE VANDENBERG AND GUIMOND

725

however, was modified by the equitable rule making paramount the welfare of the child . What then of statute law in Manitoba ? The s tatute h\\\' supports the clllim of Miss Guimond . The Child !l'dfarc ti el, R .S. ?\1. 195-1, c. 35, .II pecifically places the chitdren of a so-called "common IlIw" relationship into a dif. fCl'e nt category Crom children of a legal marringe. Section lOlA [cnnctcd 1955, c. 6, s. 11] of the ChIld Wcl/01c Act conslit\lte~ her. :IS the unmarried mother of the childl'cn, "guardia" of the person" of the chi ldren "unless another pel'son i':l appointed guardian of the person, or of the estale and person, . . . by a COUI't of competent jurisdiction", Acco rding to s. 108 a guardian appointed under , or constituted by, the .\ct is entitled to the custody and control of the infant . Section 106 (l) pl'O\-ides that the guardians appointed under the Act :'Ire removable by the Court of Queen's Bench "for the same cause for which tru stees are removed, or for any propel' cause". If a guardian of the t)'pe referred to in s. lOlA can be considered to have been appointed, such guardian can only be removed in the manner indicated in s. 106(1) . If such guardian is cons idered as having been cons tituted by the Act and not appointed, the Act is silent as to the manner of her removal. Section 110, however, permits the Court of Queen's Bench, "upon application by a parent or an infa nt in the sole custody 01' cont rol of the other parent, or any other person with or without his or her authority, or of a guardian", to "make an order for the access of the applicant to the infant". The section further provides that the COllrt, if it "deems it prope r so to do, may make an order for the delivery of the infant int o the custody and control of the applicant, there to remain for such time and under such conditions as the court orders". Before the Court o\'el'l'ides the right of guardianship given to Miss Guimond and delivers custody to Mr. Vandenberg, the Cou rt must fmd it "proper so to do". What test is the Cou rt to apply? The mother is constituted sale guardian by the Act. Surel}' the Court must aRk itself: "Has t he mother done anything to disentitle her to guardinnship?" If the test in The Qll cell v. (;yngoll, supra, is applied, the Court must ask: "Js it 'essential' or 'clearly right' for the welfare of the children in some 'very serious and important' respect that the guardianship !'ight be superseded?" One must then ask: " In what very se rious and important respect is it 'essential' or 'clearly right' that Miss Guimond's primar)' right to custody be abrogated?"

726


(S81)

The Judge appears to have proceeded on the footin, that the natural mother and natural father have equal right. to the illegitimate children. While parents do have equal rights to their legitimate chi ldren, it is now too well established to be open to dispute that such is not the case for the parenta of illegitimate children. Hall, J., felt that the welfare of the children would be better served by placing t hem in the custody of the natural father . There is no legal pr ecedent for granting illegi timate children to the custody of their natural rather merely because he can provide the children with an upbringing which might be slightly better t ha n that which the natural mother would be likely to provide. In many cases the natural Cather has been awarded custody of the children but all of these which have come to ou r attention have involved serious neglect or abandonment by the mother or conduct detrimental to the best interes~ of the child. The law implies that in order for a father to gain custody of an i!legitimate child, the amount or degree of neglect by the mother must be greater than that which is required in the case of a legitimate child. It is not a mere balance scale with both parties starting equal, but r ather, the balance scale is tipped heavily in favour of the mother of illegitimate children. Given this s ituation this Court must look carefully at the evidence. Hall, J ., rested his disposition of the case upon two grounds. He said: It i, my di s tinct impreuion that he (i.•. , Mr. Vanden be rg] ia anxious, will ing and well able to provide a relatively good home an d eommunity environment lor the growth and duelo pment or the c hil dren, and that in all probability he will .ucceed. On the other hand. leavi ng financial conaiderations .. ide, it i, quite unlikely t ha t the mother has the capacity o r resou rces to meet her responsibilitiel.

Clearly a balancing of "financial cons iderations" is not a proper ground fo r determining whether custody is to be awarded to the natura l mother or to the putative father. In Th e Queen v. Gyngall, supra, Lord Esher, M.R., stated, p. 248. that no wise man wou ld entertain the suggestion that a "child ought to be taken away from its parent merely because its pecuniary position will be thereby better ed". Equally, a ch ild shou ld not be taken from its natural mother on the g round that its pecuniary position will be improved by giving custody to the putative father. It is difficult to determine from the evidence in what respect the Judge considered Miss Guimond lacked "capacity" to meet her responsibilities. For many years she discharged her r esponsibilities as homemaker and mother in a manner which rave Mr. Vandenberlf little. if any. caute for complaint.

(51l)

RB VANDENBERG AND GU IMOND

727

Wh"t kind of wornnn is Mills Guimond ? She hnl nul a blL ndoncd her chlldl'en nor neglected he r childre n It ill concedt'tl that she does not h:\\'e :lny problem with alcohol. She is not A crucl womnn . Mr, Vllnden!>frg contend s that the almo•• phere of the home due to the mothf'r'l fri ends lind fnmily rendera the home unhealthy for th e children. However. at the snme time Mr. V :\Ilcl~llbel' ~ admit!! thl' mother looked lifter the children "'nirly well" , The circumstances which neceuitnted sending h·!1' dau~htel' t empor nrily t o !Itny on the Fort Alex. nnder R( !'en'ntion wCl'e not 8uch liS to duogale f l'om her deht to custody. The J udge e"pn~lIsed ('oncern th'\l l\t i!ls GUimond lacked n''iource~ to meet he r responsibilities. Such concern could, it wou ld s~ em, be readily overcome by an appropri ate award of maintennnce to Miss Guimond for the benefit of t he children, The second ground upon which the Judge rested hi s decision was expressed by h im in these words: J ndffd it is probablf Ih nt tht'1of: ehildrfn will find thfmwlvu In _n "! ~I! tU lio n:l1 I'llI'i ronml'nl of :I "-mpor.:r.ry or permnnfnt nalure or under lhf ini1Ue'nCf: of liff on _ RUf:rvatr on.

With respect, we do not deem the prosped of convent life fOt, the religiotls train ing of a Roma n Catholic child or the influence of life on a Rese n 'at ion for a n Indian child to be cOI1'1iderations entitling a Court to take from a Roman Catholic mother of I ndian descent the custody of children born to her. We find nothing in either of t hese ci rcumstances detrimental to the inte rests of the children. We would only add that a furth er consideration which s hould not be ove rlooked in suppo rt of Miss Guimond's claim t o custody is the tender age of the two chi ld ren concerned, seven and three years, In the result we would allow th e appeal. In the course of the foregoing judgme nt se\'eral cases have been cited in which equitable principles have been applied in custody matters. Attention may be called to the observ:\tions of ;\t ontague, J.A ., in K . 11. K . (1956). 7 D.L .R. (2d) 16,20 W.W.R. 449, 6~ Mlln. R. 298, to the effect t hat since April 20, 193 1, the date upon which the Kiug'! B tllch A ct was assented to, the rules of equity relating to the custody and education of childre n ceased to be the law of ?!.Ianitoba. In the Inter case of R e Hollas ond Children 's A id Socipty o/lVin uiptg (1960), 26 D.L.R. (2d) 28 at p. 35-, 33 W.W.R. 507, Freedman , J .A., cons t r ued the said observati ons of Montague, J .A., as obiter dictn. and expressed the view that the quest ion was s till an open one. Ass uming that equitable principles do apply, the

n.


(583)

claim of Mr. Vandenberg must, in our oplnlOD. still fall. If equitable principles can nol be applied Mr. Vandenber.... position is even less favourable. This may be an appropriate occasion to declare our view that the jurisdiction of the Court. of Manitoba in custody matters is not restricted by the exclu~ sion of equitable principles therefrom, as Montague. J.A., suggested.

Guardianship and custody of the infant children Alice Alyda Guimond (also known as Vandenberg) and Lisa Valerina Guimond (also known as Vandenberg) shall remain with the respondent Mary Nellie Evelyn Guimond until further order of the Court. The applicant Henry Vandenberg shall have reasonable access to the said infant children, the terms of such access to be settled by the Court if the parties are unable to agree. There will be an order that the applicant pay to the respondent for the maintenance of the said two infant children the aggregate sum of $80 per month commencing November 1, 1968, until further order of the Court. The re· spondent will have her costs here and in the Court below. Appql alloicIed.