Supreme Court of Canada
Retzer v. Retzer, [1975] 2 S.C.R. 881
Date: 1974-12-19
Helmut Ludwig Retzer Appellant;
and
Esther Retzer Respondent.
1974: December 9; 1974: December 19.
Present: Laskin C.J. and Martland, Judson, Ritchie and Dickson JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Divorce—Cruelty—Twelve years of tranquil marriage during which wife shared husband’s religion—Wife returning to former religion and inculcating children with its tenets despite husband’s objection—Ensuing domestic discord—Trial judge granting decree nisi and custody of children to husband and dismissing wife’s cross-petition—Appellate Division reversing judgment at trial without recorded reasons—Trial judge’s conclusions not made in disregard of evidence or based on wrongful evaluation of conflicts in evidence—Judgment at trial restored.
APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division, reversing and varying a decision of Cavanagh J. in a divorce matter. Appeal allowed and judgment at trial restored.
J.V. Decore, for the appellant.
B. Karrel, for the respondent.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—This appeal arises out of cross-petitions for divorce, each grounded on cruelty under s. 3(d) of the Divorce Act, R.S.C. 1970, c. D-8, and out of a contest between the spouses for custody of their four children. The trial judge, Cavanagh J., in considered reasons, granted a decree nisi to the petitioning husband, granted him custody of the children and dismissed the cross-petition of the respondent wife. On appeal by the wife, the Alberta Appellate Division in a majority judgment of Prowse and Moir JJ.A., McDermid J.A. dissenting,
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allowed her appeal in respect of the issue of divorce, vacated the decree nisi in favour of the husband and granted a decree nisi of divorce to the wife on the grounds of physical and mental cruelty. The Court was unanimous in also allowing the wife’s appeal against the custody order in favour of the husband, and the majority of the Court directed that the question of custody and maintenance for the wife and children be referred back to the Trial Division for determination.
I take these dispositions by the Appellate Division from the formal judgment of that Court. No reasons for judgment were delivered, nothing of even an oral nature having been recorded. I think this is unfortunate, especially in a matter which turned so largely on questions of fact. The carefully reasoned judgment at trial was reversed without any indication of the reasons which led to that decision. The result is that on the appeal to this Court we do not have the benefit of knowing why the Appellate Division concluded that the judgment at trial was in error.
The trial judge made findings of fact on the contested issues which, in my opinion, are amply supported by the evidence. In a case such as this, involving domestic discord brought about by a sudden reversion of the wife to the religion of her youth after twelve years of tranquil marriage during which the wife shared her husband’s religion and during which children were born who were being reared in that religion. There is considerable advantage in being able to observe the demeanour of the spouses in the witness-box as well as to hear their evidence. The parties were married in a church of the husband’s faith, the wife having ceased to practise her religion prior to her marriage. The discord ensued when the wife returned to her former religion with uncompromising zeal. She made it a matter of principle to inculcate her children with its tenets, despite the objection of
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her husband who thought that the children should have some choice. In the result, there were unfortunate incidents of ugly name-calling and physical confrontations involving four instances where the husband slapped or shook his wife and one instance where she scratched his face. The children’s attitude towards their father was adversely affected by the wife’s insistence on the dominance of her religious beliefs.
The issues between the parties, involving also contentions by the wife that the husband was tyrannical and niggardly towards her in respect of money for the household, required careful assessment which a trial judge was in the best position to make. I am unable to say that his conclusions showed disregard of the evidence or were based on a clearly wrongful evaluation of the conflicts in the evidence which the record of the case exhibits. Regrettable as matrimonial disputes are, especially those that embroil young children, an appeal to the law for their resolution may not leave room for settlement by reconciliation. So it is here.
I would allow the appeal, set aside the judgment of the Alberta Appellate Division and restore the judgment at trial. The trial judge made no order as to costs and I would allow this. prescription both in respect of the judgment of the Appellate Division and the judgment of this Court.
Appeal allowed.
Solicitors for the appellant: Decore, Decore & Decore, Edmonton.
Solicitors for the respondent: Lyons & Karrel, Edmonton.