Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 SCR 99

Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 SCR 99

Richard Hugh Frame Appellant

v.

Eleanor Margaret Smith and Johnston Smith Respondents

indexed as: frame v. smith

File No.: 18164.

1986: March 20; 1987: September 17.

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

*Chouinard J. took no part in the judgment.

on appeal from the court of appeal for ontario

Practice ‑‑ Motion to strike ‑‑ Family law ‑‑ Appellant (a non‑custodial parent) deliberately denied access to children notwithstanding court orders specifying access ‑‑ Respondents' conduct resulting in appellant's incurring considerable expense and undergoing severe emotional and psychic stress ‑‑ Whether or not appellant has a right of action based on respondents' interference with his legal right of access to his children ‑‑ Family Law Reform Act, R.S.O. 1980, c. 152, s. 69(4) ‑‑ Children's Law Reform Act, R.S.O. 1980, c. 68 (as am.), ss. 19(a), (d), 24, 35, 36, 37(1), (2), (5), 38, 39, 40 ‑‑ Ontario Rules of Practice, Rule 126.

Family law ‑‑ Custody and access ‑‑ Non‑custodial parent deliberately denied access to children notwithstanding court orders specifying access ‑‑ Denial of access resulting in appellant's incurring considerable expense and undergoing severe emotional and psychic stress ‑‑ Whether or not appellant has a right of action based on respondents' interference with his legal right of access to his children.

Richard Frame and Eleanor Smith had three children during their marriage. After their separation, the wife was granted custody, with generous visiting privileges to the husband, and more specific orders of access were later issued. The husband maintains that his former wife did everything in her power to frustrate his access to the children: she moved to distant cities without notification, changed the children's surname and religion, told them that the appellant was not their father, forbade telephone conversation with him, and intercepted his letters to them. The husband alleges he has undergone considerable expense and has suffered severe emotional and psychic distress because of this conduct and claims damages from respondents flowing from their wrongful interference with the legal relationship he had with his children.

An application to strike was granted, and was upheld on appeal. At issue here is whether the appellant has a right of action against his former spouse and her present husband for interfering with his access to his children.

Held (Wilson J. dissenting): The appeal should be dismissed.

Per Dickson C.J. and Beetz, McIntyre, Lamer and La Forest JJ.: No tort action exists. The old actions of enticement, harbouring, seduction or loss of services that gave some protection to a father's interest in his children, and which all had a distinctly pecuniary flavour, have now been abolished in Ontario by the Family Law Reform Act. This Court found the tort of alienation of affection of a spouse did not exist in Canada; such domestic matters lie outside the realm of the law altogether. Applying the tort of conspiracy here would bring about serious disadvantages and run afoul of this Court's opinion discouraging its extension. A parent probably had no right of access at common law (as opposed to custody) upon which an action could be grounded. There is no pecuniary interest involved here, and in any event, any possible interest is akin to that which would have been protected by the rejected tort of alienation of affections.

Any possible judicial initiative has been overtaken by legislative action. The Legislature intended to devise a comprehensive scheme for dealing with the issues of family breakdown and of custody and access to the children. If it had contemplated additional support by civil action, it would have made provision for this, especially given the rudimentary state of the common law. What the present action appears to contemplate is the enforcement of an order made by virtue of a statutory discretion by means of a civil action rather than by means of the remedies provided by the Act. There is no need today to supplement legislative action in this way. Indeed, to do so may well do violence to the comprehensive statutory scheme provided by the Legislature.

A breach of the statutorily authorized order in the present case cannot give rise to a fiduciary relationship on which a cause of action can be grounded. All the reasons for not permitting a tort action apply equally to an action for the breach of such an obligation. Then, too, this course of action is extremely ill‑defined and precision virtually impossible. The uncertainties surrounding this amorphous remedy have the potential to generate pyrrhic, excessive and often needless litigation. Permitting civil actions against the custodial parents cannot be said with any certainty to be in the best interests of the child, whether this be by creating a tort or by recognizing a fiduciary relationship arising out of a court order. Like the resort to fines and imprisonment permitted by the Act, these proposed remedies could encroach on the resources of the custodial parent and could cause the child to suffer from the knowledge that one parent has taken such drastic action against the other.

Per Wilson J. (dissenting): The facts as pleaded in the statement of claim, if proved, would not give rise to a cause of action based on the torts of conspiracy, intentional infliction of mental suffering, and unlawful interference with another's relationship, or on a right at common law of access to children but they would give rise to a cause of action for breach of fiduciary duty.

The torts of conspiracy, intentional infliction of mental suffering and of unlawful interference with another's relationship should not extend to the family law situation, notwithstanding the fact that the threshold circumstances necessary to them existed. Each of these torts have particularities discouraging their extension into this area but the common denominator was that their extension would not be in the best interests of the children. Little would be achieved towards encouraging the maintenance and development of the relationship between both parents and the children. Rather, their extension into this area of family law would create legal conditions tailor‑made for abuse, with the potential for petty and spiteful litigation and for extortionate and vindictive behaviour.

Appellant cannot rely on the common law as the source of his right of access. He must rely on the court order because: (a) it is doubtful that a common law right of access independent of the statutory right granted by the court exists; and (b) even if such a right had existed at one time, it could not have survived to the present day in the face of the shift in emphasis from parental rights to children's rights. Appellant does not have a civil cause of action based on the "right" of access embodied in the court order. First, it is simply not in the child's best interests to recognize the general availability of an action based on the court order given its potential for frequent litigation, thus multiplying the traumatizing effects of the marriage breakdown on the child. Second, a civil action for breach of a court order has never been recognized by our law as a method of enforcing court orders. And third, the legislature, in spelling out the enforcement mechanisms, has not provided for such an action.

Relationships in which a fiduciary obligation has^* been imposed seem to possess three general characteristics:

(1) The fiduciary has scope for the exercise of some discretion or power.

(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.

(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

These three underlying characteristics are present in the relationship under review. The custodial parent has been placed as a result of the court's order in a position of power and authority over the children with the potential to prejudicially affect and indeed utterly destroy their relationship with their non‑custodial parent through improper exercise of the power. The requisite vulnerability is present, and in practical terms, the non‑custodial parent can do little to restrain the custodial parent's improper exercise of authority or to obtain redress for it. The options open to an aggrieved non‑ custodial parent in the face of a campaign by a custodial parent to cut the non‑custodial parent off from the child are exceedingly limited.

Existing fiduciary principles should be extended to this particular family law situation. First, this cause of action arises only in the particular circumstance, that of vulnerability created by the splitting of the custody and access of children by the issuance of a court order. Second, the cause of action for breach of fiduciary duty creates a very strong incentive to custodial parents to exercise their custodial rights so as to further the best interests of their children, to recognize that their children are entitled to an ongoing relationship with their other parent and that it is a serious matter to use the authority confided in them by an order of the court to deprive their children of this other dimension in their lives. Finally, unlike the causes of action in tort, the cause of action for breach of fiduciary duty allows the court to take into account conduct of a non‑custodial parent (whether related to custody and access issues or not) which might be contrary to the best interests of children.

It is within the jurisdiction of the courts, particularly courts of equity, to prevent a cause of action from proceeding if there is any risk of injury to the children's interests. The cause of action for breach of fiduciary duty can proceed only if there is no risk that the support of the children will be impaired and no risk of a harmful conflict of loyalties arising in the children. Accordingly, not every denial of access rights will give rise to a cause of action for breach of fiduciary duty but only where a sustained course of conduct has caused severe damage to the non‑custodial parent‑child relationship to the detriment of both the non‑custodial parent and the child.

Historically, courts of equity have been willing to grant equitable relief supplementing statutory relief for a statutory wrong. The clear and compelling statutory language necessary to oust equity's broad inherent jurisdiction to give equitable relief in appropriate circumstances does not exist in any of the legislation applicable to this case. The cause of action for breach of fiduciary duty is not founded "directly upon breach of a statute" but rather is one existing independently of the statute founded "by reference to the policies reflected in the statute and standards fixed in the statute".

The remedies normally awarded for breach of fiduciary duty are the imposition of a constructive trust and the accounting of profits: neither is applicable here. Equitable compensation, however, is also available and would allow the appellant to recover not only his out‑of‑pocket expenses incurred throughout the campaign to destroy his relationship with his children but also a realistic sum for his pain and suffering which, in this case, would include compensation for the severe depression he suffered as a result of the respondents' conduct.

Cases Cited

By La Forest J.

Applied: Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181; The Queen in right of Canada v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), [1983] 1 S.C.R. 205; referred to: Schrenk v. Schrenk (1982), 1982 CanLII 2123 (ON CA), 36 O.R. (2d) 480, affirming (1981), 1981 CanLII 1615 (ON SC), 32 O.R. (2d) 122; Kungl v. Schiefer, 1962 CanLII 5 (SCC), [1962] S.C.R. 443; Gottlieb v. Gleiser, [1957] 3 All E.R. 715; Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704; O'Byrne v. Koresec (1986), 1986 CanLII 1315 (BC SC), 2 R.F.L. (3d) 104.

By Wilson J. (dissenting)

Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441; Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735; Moore Dry Kiln Co. of Canada Ltd. v. Green Cedar Lumber Co. (1982), 1982 CanLII 2025 (ON SC), 37 O.R. (2d) 300; Dominion Bank v. Jacobs, 1951 CanLII 350 (ON SC), [1951] O.W.N. 421; Kungl v. Schiefer, 1962 CanLII 5 (SCC), [1962] S.C.R. 443; Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452; Mogul Steamship Co. v. McGregor, Gow, and Co. (1889), 23 Q.B.D. 598; Mulcahy v. The Queen (1868), L.R. 3 H.L. 306; Wilkinson v. Downton, [1897] 2 Q.B.D. 57; Guay v. Sun Publishing Co., 1953 CanLII 39 (SCC), [1953] 2 S.C.R. 216; Radovskis v. Tomm (1957), 1957 CanLII 451 (MB QB), 21 W.W.R. 658; Lumley v. Gye (1853), 2 El. & Bl. 216, 118 E.R. 749; Rookes v. Barnard, [1964] A.C. 1129; Ratcliffe v. Evans, [1892] 2 Q.B. 524; R. v. Greenhill (1836), 4 Ad. & E. 624, 111 E.R. 922; M v. M (child: access), [1973] 2 All E.R. 81; Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335; International Corona Resources Ltd. v. Lac Minerals Ltd. (1986), 1986 CanLII 2839 (ON SC), 53 O.R. (2d) 737; Standard Investments Ltd. v. Canadian Imperial Bank of Commerce (1985), 1985 CanLII 164 (ON CA), 52 O.R. (2d) 473; English v. Dedham Vale Properties Ltd., [1978] 1 All E.R. 382; Tufton v. Sperni, [1952] 2 T.L.R. 516; Varga v. F. H. Deacon & Co., 1973 CanLII 32 (SCC), 1 S.C.R. 39, affirming sub nom. R. H. Deacon & Co. v. Varga (1972), 1972 CanLII 42 (ON CA), 30 D.L.R. (3d) 653; Reading v. Attorney‑General, [1951] A.C. 507; Attorney‑General v. Goddard (1929), 98 L.J. (K.B.) 743; Jirna Ltd. v. Mister Donut of Canada Ltd., 1973 CanLII 31 (SCC), [1975] 1 S.C.R. 2, affirming (1971), 1971 CanLII 42 (ON CA), 22 D.L.R. (3d) 639; Hospital Products Ltd. v. United States Surgical Corp. (1984), 55 A.L.R. 417; H. L. Misener and Son Ltd. v. Misener (1977), 1977 CanLII 1815 (NS CA), 77 D.L.R. (3d) 428; Wright v. Wright (1973), 1973 CanLII 662 (ON CA), 1 O.R. (2d) 337; Woodburn v. Woodburn (1975), 1975 CanLII 1925 (NS SC), 11 N.S.R. (2d) 528, 21 R.F.L. 179; Jones v. Jones (1970), 1970 CanLII 1557 (ON CA), 1 R.F.L. 295; Currie v. Currie (1975), 1975 CanLII 1892 (AB SCTD), 18 R.F.L. 47; Donald v. Donald (1973), 1973 CanLII 1774 (NB CA), 6 N.B.R. (2d) 665; Nayar v. Nayar (1981), 1981 CanLII 391 (BC CA), 24 R.F.L. (2d) 400; Fast v. Fast (1983), 1983 CanLII 2035 (SK CA), 33 R.F.L. (2d) 337; Racine v. Woods, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173; Canadian Aero Service Ltd. v. O'Malley, 1973 CanLII 23 (SCC), [1974] S.C.R. 592; Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181; Attorney‑General v. Sharp, [1931] 1 Ch. 121; Attorney‑General v. Premier Line, Ltd., [1932] 1 Ch. 303; Seager v. Copydex Ltd., [1967] 1 W.L.R. 923; Dawson and Mason Ltd. v. Potter, [1986] 2 All E.R. 418; Nocton v. Lord Ashburton, [1914] A.C. 932; U.S. Surgical Corp. v. Hospital Products International Pty. Ltd., [1982] 2 N.S.W.L.R. 766; Zik v. High (1981), 1981 CanLII 1699 (ON SC), 35 O.R. (2d) 226; Seager v. Copydex Ltd. (No. 2), [1969] 1 W.L.R. 809.

Statutes and Regulations Cited

Children's Law Reform Act, R.S.O. 1980, c. 68, ss. 19(a), (d), 24, 35, 36, 37(1), (2), (5), 38, 39, 40.

Children's Law Reform Amendment Act, 1982, S.O. 1982, c. 20, s. 1.

Custody of Infants Act 1839 (Talfourd's Act), 2 & 3 Vict., c. 54 (U.K.)

Divorce Act, 1985, S.C. 1986, c. 4., s. 16(10).

Family Law Reform Act, R.S.O. 1980, c. 152, ss. 60, 69(4).

Guardianship of Infants Act, 1886, 49 & 50 Vict., c. 27 (U.K.)

Guardianship of Minors Act, S.O. 1887, c. 21.

Judicature Act, R.S.O. 1980, c. 223, s. 25, rep. & sub. by Courts of Justice Act, 1984, S.O. 1984, c. 11, s. 109.L <E Ontario Human Rights Code, R.S.O. 1970, c. 318, as am.

Ontario Rules of Practice, r. 126.

Supreme Court of Judicature Act, 1873, 36 & 37 Vict., c. 66 (U.K.)

Authors Cited

Austin, R. P. "The Corporate Fiduciary: Standard Investments Ltd. v. Canadian Imperial Bank of Commerce" (1986‑87), 12 Can. Bus. L.J. 96.

Brown, Harold. "Franchising‑‑A Fiduciary Relationship" (1971), 49 Texas Law Rev. 650.

Burns, Peter. "Civil Conspiracy: An Unwieldy Vessel Rides a Judicial Tempest" (1982), 16 U.B.C. L. Rev. 229.

Davidson, Ian E. "The Equitable Remedy of Compensation" (1982), 13 Melbourne Univ. Law Rev. 349.

Finn, P. D. Fiduciary Obligations. Sydney: Law Book Co., 1977.

Fleming, John G. The Law of Torts, 6th ed. Sydney: Law Book Co., 1983.

Goff, Robert and Gareth Jones. The Law of Restitution, 2nd ed. London: Sweet & Maxwell, 1978.

Halsbury's Laws of England, vol. 16, 4th ed., paragraph 1215. London: Butterworths, 1976.

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

Jones, Gareth. "Unjust Enrichment and the Fiduciary's Duty of Loyalty" (1968), 84 L.Q.R. 472.

Keeton, George Williams and L. A. Sheridan. Equity. London: Sir Isaac Pitman & Sons, 1969.

Maidment, Susan. Child Custody and Divorce: The Law in Social Context. London: Croom Helm, 1984.

Mason, Sir Anthony. "Themes and Prospects" in P. Finn, ed., Essays in Equity. Sydney: Law Book Co., 1985.

McLeod, James G. "Annotation" to O'Byrne v. Koresec (1986), 1986 CanLII 1315 (BC SC), 2 R.F.L. (3d) 104.

Milner, Alan. "Injuries to Consortium in Modern Anglo‑

American Law" (1958), 7 Int. & Comp. Law Q. 417.

Mosberg, Clay A. Note, "A Parent's Cause of Action for the Alienation of a Child's Affection" (1973‑74), 22 Kan. L. Rev. 684.

Ontario. Law Reform Commission. Report on Family Law. Toronto: Ontario Law Reform Commission, 1969.

Restatement of the Law of Torts. As adopted and promulgated by the American Law Institute, at Washington, D.C. St. Paul: American Law Institute Publishers, 1938.

Shepherd, J. C. The Law of Fiduciaries. Toronto: Carswells, 1981.

Solomon, Robert M., Bruce P. Feldthusen and Stephen J. Mills. Cases and Materials on the Law of Torts, 2nd ed. Toronto: Carswells, 1986.

Vinter, E. A Treatise on the History and Law of Fiduciary Relationships and Resulting Trusts, 3rd ed., 1955.

Weinrib, Ernest J. "The Fiduciary Obligation" (1975), 25 U.T.L.J. 1.

Williams, Glanville. "The Foundations of Tortious Liability" (1939), 7 Cambridge Law J. 111.

APPEAL from a judgment of the Ontario Court of Appeal dismissing an appeal from a judgment of Boland J. granting an order to strike for want of a reasonable cause of action. Appeal dismissed, Wilson J. dissenting.

Stephen B. Smart, for the appellant.

Gregory Frink, for the respondents.

The judgment of Dickson C.J. and Beetz, McIntyre, Lamer and La Forest JJ. was delivered by

1. La Forest J.‑‑The issue in this case is whether the appellant has a right of action against his former spouse and her present husband for interfering with his access to his children.

Background

2. This appeal arises out of a motion to strike out a statement of claim on the ground that it discloses no cause of action. That being the case, it must be assumed, for the purposes of the motion, that the facts pleaded are true. The most salient of these are as follows.

3. Richard Frame and Eleanor Smith were formerly husband and wife and had three children, now aged 24, 19 and 18. The couple separated in 1970, and in 1971 a Manitoba court granted the wife custody of the children, with generous visiting privileges to her husband. Later orders of access were issued in Ontario in 1974 and 1975. According to the husband, however, his former wife has done everything in her power to frustrate his access to the children. She has moved between Winnipeg, Toronto, Denver and Ottawa, making access and visitation, in his words, impossible. She changed the children's surname and religion, told them that the appellant was not their father, forbade telephone conversation with him, and intercepted his letters to them. The husband alleges that as a result of his former wife's conduct he has undergone considerable expense and has suffered severe emotional and psychic distress. He claims that she and her present husband are liable for any damages flowing from their wrongful interference with the legal relationship he had with his children. Accordingly, he seeks recovery not only of his out‑of‑pocket expenses (estimated at $25,000), but of general and punitive damages in the sum of $1,000,000 and $500,000 respectively. The endorsement on the writ of summons reads as follows:

The Plaintiff's claim is for damages as a result of the defendants' failure to permit the plaintiff to exercise the right to access to his children or alternatively, damages relating to the defendants' wilful denial or refusal to permit the plaintiff from exercising his lawful right to access to his children or alternatively, damages arising from the defendants' conspiracy to commit acts in order to prevent the plaintiff from exercising his legal rights and for damages related to the plaintiff's loss of opportunity to develop a meaningful human relationship and have social companionship and contact with his children and to provide and give to the said children proper parental love, care and guidance.

4. The defendants moved for an order to have the action struck out under Rule 126 of the Ontario Rules of Practice. Considering herself bound by the similar case of Schrenk v. Schrenk (1981), 1981 CanLII 1615 (ON SC), 32 O.R. (2d) 122 (Ont. H.C.), aff'd (1982), 1982 CanLII 2123 (ON CA), 36 O.R. (2d) 480 (C.A.), Boland J. made the order. On appeal to the Ontario Court of Appeal, that court, too, considered itself bound by its earlier decision in Schrenk and dismissed the appeal.

5. The appellant then sought and was granted leave to appeal to this Court.

Possible Tort Liability

6. Despite their deep human and social importance, 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. The Restatement of the Law of Torts (1938), s. 699, puts the parent's common law position in these words: "One who, without more, alienates from its parents the affection of a child, whether a minor or of full age, is not liable to the child's parent." There were the old actions of enticement, harbouring, or seduction or loss of services that gave some protection to a father's interest in his children, but these actions had a distinctly pecuniary flavour. In any event, they have now been abolished in Ontario by the Family Law Reform Act, R.S.O. 1980, c. 152, s. 69(4).

7. In the United States, a separate tort of "alienation of affections" was developed to protect the reciprocal interest of spouses in one another's companionship, but from the mid‑1930's onward, it began to fall into disfavour and, along with the traditional actions already mentioned, was abolished in many of the states. It simply did not sit well in an age of "rapidly shifting husbands and wives and ever‑increasing family catastrophes"; for an account, see Alan Milner, "Injuries to Consortium in Modern Anglo‑American Law" (1958), 7 Int. & Comp. Law Q. 417, especially at pp. 435‑36. The extension of the tort in a few state courts to allow parents to sue for the loss of affection of their children received anything but universal approval; see Milner, ibid.; Clay A. Mosberg, Note, "A Parent's Cause of Action for the Alienation of a Child's Affection" (1973‑74), 22 Kan. L. Rev. 684. Opening the gates to a multiplicity of actions within the family circle and against close family friends was not viewed as an undiluted good. Indeed, in Michigan, one of the few states where this extension was made, the State legislature went out of its way to abolish it; see Mosberg, ibid., at pp. 689‑90. In Canada, this Court, in Kungl v. Schiefer, 1962 CanLII 5 (SCC), [1962] S.C.R. 443, rejected an action by a husband to recover damages for the alienation of the affection of his wife, holding that no such tort existed in Canada. In this, it followed the lead of the English courts where, in Gottlieb v. Gleiser, [1957] 3 All E.R. 715, Denning L.J. made it clear that such domestic matters lie outside the realm of the law altogether.

8. The husband in the present case also sought to rely on the tort of conspiracy but as my colleague Justice Wilson explains in her judgment, there are grave disadvantages associated with applying this tort to circumstances like the present. Further, as she notes, this Court has made it clear that it does not look kindly upon the extension of this tort, which it regards as an anomaly, see, Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452, at p. 473, per Estey J. Wilson J., in her judgment, has also adequately disposed of the possibility of other existing torts applying to the circumstances of this case. It is also doubtful, as she observes, that a parent had at common law a right of access, as opposed to custody, upon which an action could be grounded. There is no pecuniary interest here, and, in any event, any possible interest seems to be very much akin to that which would have been protected by the rejected tort of alienation of affections.

9. It would, of course, be possible for the courts to devise a new tort to meet the situation. And the temptation to do so is clearly present, for one cannot help but feel sympathy for the appellant and others in like situations. But there are formidable arguments against the creation of such a remedy. I have already mentioned the undesirability of provoking suits within the family circle. The spectacle of parents not only suing their former spouses but also the grandparents, and aunts and uncles of their children, to say nothing of close family friends, for interfering with rights of access is one that invites one to pause. The disruption of the familial and social environment so important to a child's welfare may well have been considered reason enough for the law's inaction, though there are others.

10. There are also serious difficulties in defining such a tort. At what stage and for what actions should one be able to claim interference with access? Is advice or encouragement to a child sufficient? It is notorious that free, and not always disinterested and wise advice abounds in a family setting. There are degrees of interference, of course, and some interference is malicious and some is not, but where the line is to be drawn defies specification. It seems to me that there is no clear boundary between ordinary interruptions to access and sustained, putatively actionable interference, and where the point is reached where permissible advice intended for the child's benefit stops and malicious obstruction begins is virtually impossible to divine. This is especially so because, as Alan Milner, ibid., at p. 429, has pointed out, "when there is dislike, a desire to injure is never far behind." Besides, the awarding of damages will do little to bring back love and companionship, but it may, in some cases, well deprive a child of the support he or she might otherwise obtain from a custodial parent and relatives. If, on the other hand, the action is generally limited to the recovery of expenses, it will be of little use to most parents given the costs, in time and money, of court actions. These and other practical considerations are sufficient to raise serious doubts about whether an action at law is the appropriate way to deal with this type of situation. This probably explains the reticence of the courts in finding a remedy at common law.

11. But what really determines the matter, in my view, is that any possible judicial initiative has been overtaken by legislative action. In all the provinces (and at the federal level for that matter), legislation has been enacted to deal with the modern phenomenon of frequent family breakdowns and, in particular, to provide for custody of, and access to children. In Ontario, the Children's Law Reform Act, R.S.O. 1980, c. 68, as amended by the Children's Law Reform Amendment Act, 1982, S.O. 1982, c. 20, now deals with the matter in a comprehensive manner. In particular, the courts are given the role of ensuring that issues involving custody of, and access to children are determined on the basis of the best interests of the children (see ss. 19(a), 24(1)). Numerous remedies are provided for the enforcement of orders granting custody or access. The court can give such directions as it considers appropriate for the supervision of those having custody of, or access to the children (s. 35). It may, on application, make an order restraining any person from molesting, annoying or harassing the applicant or a child in the applicant's custody (s. 36). It may also empower the applicant or someone on his or her behalf to apprehend a child to give effect to the applicant's entitlement to custody or access (s. 37(1)). In certain circumstances, it may direct the sheriff or the police to do so (s. 37(2)), and empower them to enter and search any place where they have reasonable and probable grounds for believing the child may be, and to use such assistance or force as may be reasonable in the circumstances (s. 37(5)). The court may also take steps to prevent a child from being removed from the province (s. 38). In addition to its powers in respect of contempt, the court is empowered to impose a fine or imprisonment for wilful contempt of, or resistance to its process or orders in respect of custody or access (s. 39).

12. It seems obvious to me that the Legislature intended to devise a comprehensive scheme for dealing with these issues. If it had contemplated additional support by civil action, it would have made provision for this, especially given the rudimentary state of the common law. Indeed, as we saw, the Legislature in a separate statute (the Family Law Reform Act) went out of its way to abolish all the relevant, if inadequate, remedies then existing at common law. Gray J. in Schrenk, supra, assumed that an action like the present fell within the ambit of these abolished common law remedies, and I agree that the statute shows a clear disposition not to permit recourse to the courts for civil actions of this nature. There is more here than the usual presumption that the Legislature must be taken to have known the pre‑existing law. It had acted on the basis of a Report on Family Law (1969) prepared by the Ontario Law Reform Commission.

13. In adopting this position, I am merely following the approach taken by this Court in a number of recent cases. In Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, the Court had to deal with the issue whether the repeated denial of employment on the ground of racial discrimination gave rise to a common law tort. As is the case here, a comprehensive statute, The Ontario Human Rights Code, R.S.O. 1970, c. 318, had been enacted to deal with the problem in the face of rudimentary common law development. As here too, the substance of the right was defined by the statute and an array of remedies had been devised to enforce it. Laskin C.J., speaking for the Court, at p. 189, made it clear that there was no room "to create by judicial fiat an obligation ... to confer ... [a] benefit upon certain persons ... solely on the basis of a breach of a statute which itself provides comprehensively for remedies for its breach". The present case, in my view, affords a complete parallel to that situation.

14. More generally, what the present action appears to contemplate is the enforcement of a statutory duty, or what amounts to the same thing, an order made by virtue of a statutory discretion, by means of a civil action rather than by means of the remedies provided by the Act. This Court had occasion to deal with that issue in The Queen in right of Canada v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), [1983] 1 S.C.R. 205. There the Canadian Wheat Board sought to recover damages against the Pool for having delivered infested grain out of its terminal elevators contrary to a statutory provision; no negligence was pleaded. The action failed. The Court flatly rejected the notion of a nominate tort of statutory breach; if the legislature wished to provide for a civil action, it held, it could do so. Any other course would simply allow the courts to choose, in no predictable fashion, to grant a civil remedy for a statutory breach whenever they thought fit. The tenor of the Court's approach may be gleaned from the following passage of the judgment of the present Chief Justice, then Dickson J., at pp. 215‑16:

The pretence of seeking what has been called a "will o' the wisp", a non‑existent intention of Parliament to create a civil cause of action, has been harshly criticized. It is capricious and arbitrary, "judicial legislation" at its very worst.

It is a "bare faced fiction" at odds with accepted canons of statutory interpretation: "the legislature's silence on the question of civil liability rather points to the conclusion that it either did not have it in mind or deliberately omitted to provide for it" (Fleming, The Law of Torts, 5th ed., 1977, at p. 123). Glanville Williams is now of the opinion that the "irresolute course" of the judicial decisions "reflect no credit on our jurisprudence" and, with respect, I agree. He writes:

The failure of the judges to develop a governing attitude means that it is almost impossible to predict, outside the decided authorities, when the courts will regard a civil duty as impliedly created. In effect the judge can do what he likes, and then select one of the conflicting principles stated by his predecessors in order to justify his decision.

15. There is no need today to supplement legislative action in this way. Indeed, to do so may well do violence to the comprehensive statutory scheme provided by the Legislature; see St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704, per Estey J., especially at p. 721. I shall have more to say about this later. As well, when it is subsequently desired to make changes to a legislative scheme, common law accretions are difficult to deal with adequately.

16. In my view, therefore, the appellant husband has not established a proper basis for an action in tort.

Possible Fiduciary Obligation

17. Much of what I have already stated seems to me, with respect, to apply with equal force to the possibility, about which this Court invited counsel to make additional submissions, that the appellant may have an action for a breach of a fiduciary obligation arising out of the court order granting him access to the child. All the reasons for not permitting a tort action apply equally to an action for the breach of such an obligation. The Legislature created the rights of custody and access and, as we saw, provided a whole array of remedies for enforcing them, from directions for supervising access, to restraining orders against interference, to apprehending the child, if necessary by permitting entries into premises and searches by the police or the sheriff, to fines and imprisonment. Why the legislature should be thought to have intended enforcement by an action for breach of a fiduciary obligation when there is a failure to comply with an access order, when an intention to permit a tortious action will not be implied, I fail to understand. All the more so when the Legislature has taken pains to abolish all non‑statutory actions that had any obvious relevance to the matter. Indeed there are in my view stronger reasons to doubt that the Legislature would have contemplated recourse to this action. It is extremely ill‑defined and it would scarcely be one that would immediately leap to mind.

18. There is no greater clarity as to when an action for a breach of fiduciary obligation would arise than is the case respecting possible tortious action for interference with access. Even if one assumes that not every breach of the right of access can give rise to an action, at what point precisely does an action arise? As I noted in discussing a possible tort action, precision is virtually impossible in this area. The fact that the court may have some discretion in awarding damages does not alter the fact that there may be a wide area of conduct that might be thought by litigants to warrant suit. These are but a few of the uncertainties that surround this amorphous remedy. These uncertainties have the potential to generate pyrrhic, excessive and often needless litigation.

19. Permitting such an action may well be violative of the express direction of the Act that custody of, and access to children should, in situations like these, be accorded solely on the basis of the children's best interests. The Legislature may well have thought that allowing a civil action would have this effect. I might mention here that the courts will not permit violence to be done indirectly to a legislative scheme. In other contexts, not only have they refused to allow a tort action, but they have gone further and not permitted what had traditionally been permissible contractual actions; see, for example, St. Anne Nackawic, supra.

20. In sum, it is by no means certain that permitting civil actions against the custodial parents can be said to be in the best interests of the child, whether this be by creating a tort or recognizing a fiduciary relationship arising out of a court order. Resort even to fines and imprisonment, which is permitted by the Act, has been described as not "entirely appropriate"; see James G. McLeod, "Annotation" to O'Byrne v. Koresec (1986), 1986 CanLII 1315 (BC SC), 2 R.F.L. (3d) 104, at p. 105. That is because these may encroach on the resources of the custodial parent and because the child may suffer from the knowledge that one parent has taken such drastic action against the other. This applies, and in some respects with greater force to a legal action. Damages can impose a far greater financial burden than the fine of up to $1,000 which may be imposed under the Act (s. 39(1)). Furthermore, though the imprisonment of one parent at the behest of the other may be damaging to the child, litigation by one against the other over a protracted period may well be even more damaging.

21. For these reasons, I cannot accept that a breach of the statutorily authorized order in the present case gives rise to a fiduciary relationship on which a cause of action can be grounded.

Conclusion

22. No possible basis for a cause of action having been presented, I would dismiss the appeal with costs.

The following are the reasons delivered by

23. Wilson J. (dissenting)‑‑The central issue in this case is whether the courts should recognize a common law parental right of access to children or, alternatively, a right to recover damages for interference with an order for access made by a court pursuant to statutory authority. The issue arises in the context of an application to strike out the plaintiff's statement of claim as disclosing no reasonable cause of action. Because this is the context there is no evidence in the record to support the allegations made in the statement of claim but, in accordance with well‑established principles, the facts as pleaded must for this limited purpose be taken as proved.

1. The Facts

24. In September 1962, the appellant (plaintiff) and the respondent Eleanor Smith were married in Winnipeg. In the ensuing years they had three children. The eldest, Richard, was born in 1963; Kathleen was born in 1967 and the youngest, Diane, was born in 1969. In November 1970 Eleanor Smith left the appellant to live with another man. She subsequently returned to the matrimonial home in Montréal for a brief period of time. However, she left again, ostensibly to stay with her parents in Winnipeg and to seek counselling. She took the children with her. Once in Winnipeg she instituted proceedings for their custody. At some stage‑‑it is not clear from the pleadings precisely when‑‑the appellant took similar steps in Manitoba. On August 12, 1971 a judge of the Family Court in Winnipeg awarded Eleanor Smith custody of the three children. The appellant was awarded "generous visiting privileges".

25. Some time around February 1972, Eleanor Smith and the co‑defendant Johnston Smith began living together. During 1973 they left Winnipeg and took the children with them. They did not tell the appellant that they were leaving the city. After several months of searching the appellant managed to locate his children who were with the respondents in Toronto. He was prevented from seeing his children. The respondents told him "You are not their father. Stay away from them". So the appellant applied to the Ontario courts to spell out his access rights more specifically. On November 22, 1974, Master Davidson of the Supreme Court of Ontario ordered Eleanor Smith to provide specified access to the appellant so that he could see and spend time with his children. A further order for access was made by Master Davidson in January 1975. In October 1976 the appellant went to Toronto to see his children but found the house deserted and no indication where the children or the respondents had gone. The respondents knew the appellant was coming to Toronto to see his children on that occasion. It took the appellant six months of searching to find them. They were living with the respondents in Denver, Colorado. On being discovered there, they all moved back to Toronto.

26. The appellant pleads that from 1972 on, the respondents made it extremely difficult, if not impossible, for him to have any contact with his children. They deliberately limited or prevented telephone contact. They diverted the letters and gifts he sent them. They also instructed the children not to attempt to contact the appellant. The children were told not to use their real surname, Frame; they were to use the surname, Smith. Against the express wishes of the appellant the children's religion was changed by the respondents. Throughout the years the respondents told the children that the appellant was not their father, that they were to regard Johnston Smith as their father.

27. The appellant has since 1972 expended considerable amounts of money trying to maintain his relationship with his children. He has sought the assistance of the courts to no avail. The respondents' behaviour has frustrated him at every turn. Moreover, since 1977 the appellant has had to seek medical treatment for severe depression resulting from the respondents' conduct. They have effectively deprived him of a normal, meaningful parent‑child relationship or, indeed, of any relationship at all with his children.

28. In April 1982 the appellant issued a writ against the respondents in the Supreme Court of Ontario. A statement of claim was filed some months later. It contained several allegations concerning the respondents' interference with the appellant's access to his children and identified a number of heads under which the cause of action might be subsumed including wilful infliction of harm on the appellant, intentional interference with a legal right of the appellant and conspiracy to do either or both. The appellant sought general damages of $1,000,000, punitive damages of $500,000 and special damages estimated at $25,000. He did not seek access to his children as they were by that time all over fifteen years of age and his relationship with them had been completely destroyed.

2. The Courts Below

29. In response to the statement of claim counsel for the respondents moved under Rule 126 of the Ontario Rules of Practice for an order striking it out as disclosing no reasonable cause of action. Boland J., considering herself bound by the earlier decision of Gray J. in Schrenk v. Schrenk (1981), 1981 CanLII 1615 (ON SC), 32 O.R. (2d) 122, aff'd (1982), 1982 CanLII 2123 (ON CA), 36 O.R. (2d) 480 (C.A.), made the order.

30. The appellant appealed to the Ontario Court of Appeal. His appeal failed. In an endorsement on the record Blair J.A. indicated that the court was unable to distinguish this claim from the claim in Schrenk, supra, and he saw no reason to depart from the position taken in that case.

3. The Issue

(i) General Considerations

31. The appellant argues that all the elements of a cause of action have been pleaded, namely wilful infliction of harm or intentional interference with a legal right. He adds that these causes of action are not prohibited by s. 69(4) of the Family Law Reform Act, R.S.O. 1980, c. 152, which provides as follows:

32. ...

(4) No action shall be brought by a parent for the enticement, harbouring, seduction or loss of services of his or her child or for any damages resulting therefrom.

In substance, the appellant's case rests on the premise that tort liability is founded on a general principle of liability for wilful damage subject to certain exceptions. Accordingly, he argues, the abrogation of certain heads of liability by s. 69(4) of the Family Law Reform Act only negates a claimant's ability to recover for the infliction of harm in those specific situations. The appellant argues that the harm he has experienced falls outside these discrete categories and is therefore actionable.

32. The appellant's argument is reminiscent of one side of a debate begun in the last century which is yet to be resolved. It has been described in Solomon, Feldthusen and Mills, Cases and Materials on the Law of Torts (2nd ed. 1986), as follows (at p. 6):

Initially, the search for a theoretical basis for tort law centred on the issue of whether there was a general principle of tortious liability. Sir John Salmond argued that tort law was merely a patchwork of distinct causes of action, each protecting different interests and each based on separate principles of liability [see Salmond, The Law of Torts (6th ed., 1924) at pp. 9‑10]. Essentially the law of torts was a finite set of independent rules, and the courts were not free to recognize new heads of liability. In contrast, writers such as Pollock contended that the law of torts was based upon the single unifying principle that all harms were tortious unless they could be justified [see Pollock, The Law of Torts (13th ed., 1929) at p. 21]. The courts were thus free to recognize new torts. Glanville Williams suggested a compromise between the two viewpoints. He argued that tort law historically exhibited no comprehensive theory, but that the existing categories of liability were sufficiently flexible to enable tort law to grow and adapt.

33. While it would perhaps be interesting for the Court to join in this debate, I think that Glanville Williams' pragmatic resolution of the question correctly characterizes the task before the Court when confronted with a heretofore unprecedented basis for liability: see Williams, "The Foundations of Tortious Liability" (1939), 7 Cambridge Law J. 111. He wrote (at p. 131):

Why should we not settle the argument by saying simply that there are some general rules creating liability (recognizing the plaintiff's interest, conferring upon him a right not to be damaged), and some equally general rules exempting from liability (refusing to recognize the plaintiff's interest, or recognizing a conflicting interest in the defendant, and thus conferring a privilege upon the defendant to cause damage)? Between the two is a stretch of disputed territory, with the Courts as an unbiased boundary commission. If, in an unprovided case, the decision passes for the plaintiff, it will be not because of a general theory of liability but because the Court feels that here is a case in which existing principles of liability may properly be extended.

Thus, whatever one considers the theoretical foundation of liability to be, it is not enough for the appellant simply to invoke a general principle of freedom from harm. Rather, he must show why "existing principles of liability may properly be extended", that is, he must identify the nature of the right he invokes and justify its protection. But the appellant in the circumstances of this case must do more. Because he is claiming protection for a right involving the well‑being of children, in addition to justifying its protection by an existing principle of liability, the appellant must also satisfy the Court that to afford legal protection for such a right would be in the best interests of children.

34. The award of a court order of custody to one parent and access to the other is premised on the existence of a relationship between the custodial parent and the child and another relationship between the non‑custodial parent and the child, the maintenance and development of both relationships being considered by the court making the order to be in the best interests of the child. But the bitterness arising from litigation brought by one parent against the other may result in the destruction of one or both of the child's relationships. At the very least it may cause conflict in the child's loyalties. This cannot be in the child's best interests and the traumatization and upset caused by it can clearly be detrimental.

35. By the same token, however, it clearly cannot be in the best interests of children to have custodial parents defy with impunity court orders designed to preserve their relationship with their non‑custodial parents. The order for access to the non‑custodial parent would not have been made had it not been found by the trial judge to be in the child's best interests. Accordingly, the custodial parent who denies access to the other parent is sacrificing the child's best interests as so found to his or her own selfish interests and this would appear, as a general principle at least, to favour a policy of intervention by the law to protect the child's best interests in such circumstances. This is not to deny that in specific cases that general policy of intervention in order to uphold what has been found to be in the child's best interests may have to yield to a greater threat to the child's interests arising from the fact of litigation by one parent against the other. It is simply to say that the limits on any cause of action which the law might recognize would have to be the result of a weighing of the positive against the negative factors impacting on the children.

36. The proper test for the disposition of a motion under Rule 126 (now Rule 21.01(1)(b)) to strike out a statement of claim as disclosing no cause of action must also be borne in mind. It is well established that the power to strike is to be exercised sparingly and only when there is no doubt that no cause of action exists: see Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441; Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735; Moore Dry Kiln Co. of Canada Ltd. v. Green Cedar Lumber Co. (1982), 1982 CanLII 2025 (ON SC), 37 O.R. (2d) 300 (H.C.) It is also well established that "a pleading should not be struck out unless it is incurable by a proposed amendment": Dominion Bank v. Jacobs, 1951 CanLII 350 (ON SC), [1951] O.W.N. 421, at p. 423. While the normal rule in such motions is that any doubt is to be resolved in favour of finding the existence of the cause of action and permitting the action to proceed, given the overriding importance of ensuring that such litigation is in the best interests of the children in a particular case, the court may impose a more stringent standard before it allows the action to be brought.

37. With these considerations in mind, I turn to an examination of the various causes of action advanced by the appellant.

(ii) Possible Causes of Action

38. The appellant correctly notes that s. 69(4) of the Family Law Reform Act, supra, abolishes the old actions of enticement, harbouring or seduction and loss of services. As well, it should be added that this Court has already unanimously rejected "alienation of affections" as a separate head of liability: see Kungl v. Schiefer, 1962 CanLII 5 (SCC), [1962] S.C.R. 443. In that case Cartwright J. held that there was no separate action for alienation apart from an action for criminal conversation or enticement. Now that these causes of action have been abolished by the Family Law Reform Act, clearly no recovery can be permitted for "alienation of affections" in respect of these causes of action. The appellant advances a number of other causes of action.

(a) Conspiracy

39. Counsel for the appellant submitted that the tort of conspiracy was available to the appellant. This Court in Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452, at pp. 471‑72, while conceding that "the law concerning the scope of the tort of conspiracy is far from clear", held that the law of torts recognizes a conspiracy claim against two or more defendants if:

(1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendant's conduct is to cause injury to the plaintiff; or,

(2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.

This case would seem to fit within either of these two branches. The plaintiff may well be able to establish at trial that the predominant purpose of the defendants' conduct was to cause injury to the plaintiff. In addition, since the defendants' conduct in violating the court order was unlawful, if it is proved at trial that the conduct was directed at the plaintiff and that the defendants should have known that injury to the plaintiff was likely to and did result, this case would fall squarely within the second branch. In my view, therefore, given this Court's holding in Canada Cement LaFarge Ltd., supra, this tort is capable of extension to the family law context. The real question is whether such an extension should be permitted.

40. It would be my view that the tort of conspiracy should not be extended to the family law context. Although "the law concerning the scope of the tort of conspiracy is far from clear" the criticisms which have been levelled at the tort give good reason to pause before extending it beyond the commercial context. As was said by Estey J. in Canada Cement LaFarge Ltd., at p. 473:

The tort of conspiracy to injure, even without the extension to include a conspiracy to perform unlawful acts where there is a constructive intent to injure, has been the target of much criticism throughout the common law world. It is indeed a commercial anachronism as so aptly described by Lord Diplock in Lonrho . . . . In fact, the action may have lost much of its usefulness in our commercial world, and survives in our law as an anomaly.

41. The criticisms of the tort to which Estey J. refers focus on the rationale for the tort and thus are not confined to the commercial context but extend to other contexts as well. The rationale of the tort was explained by Bowen L.J. in Mogul Steamship Co. v. McGregor, Gow, and Co. (1889), 23 Q.B.D. 598 (C.A.), at p. 616:

...a combination may make oppressive or dangerous that which if proceeded only from a single person would be otherwise . . . .

Noting that in many cases this "totem of numbers" is demonstrably false, one commentator asserts that "the question of abolishing ... conspiracy to injure must be seriously considered": Peter Burns, "Civil Conspiracy: An Unwieldy Vessel Rides a Judicial Tempest" (1982), 16 U.B.C. L. Rev. 229, at p. 254. Another commentator notes that the tort "rests rather shakily on a notion of plurality which derives more from magic than reason": Peter G. Heffey, "The Survival of Civil Conspiracy: A Question of Magic or Logic" (1975), 1 Monash Univ. Law Rev. 136. This Court, however, affirmed the ongoing existence of the tort in Canada Cement LaFarge Ltd. Estey J. stated at p. 473:

...it is now too late in the day to uproot the tort of conspiracy to injure from the common law. No doubt the reaction of the courts in the future will be to restrict its application for the very reasons that some now advocate its demise.

42. In light of these comments I would not extend the tort of civil conspiracy to the custody and access context. Such an extension would not be consistent with the rationale expressed in Mogul namely that the tort be available where the fact of combination creates an evil which does not exist in the absence of combination. I do not believe that in cases such as the one at bar the combination makes "oppressive or dangerous that which if proceeded only from a single person would be otherwise". The conduct of the custodial parent, if proven, is equally "oppressive or dangerous" whether done singly or in combination. If the tort of conspiracy is applied to the facts of this case, an arbitrary and unjustifiable distinction would emerge. The alleged conspiracy by the defendants would be actionable but the same conduct done by the spouse alone would not be actionable (for reasons to be discussed infra). The differing treatment of these two situations for no principled reason and, indeed, the lack of any principle supporting the extension of the tort to the "conspiracy" in this case, lead me to conclude that this tort should not be extended to the family law context.

43. Another rather arbitrary distinction inherent in the conspiracy concept is the distinction between an actual agreement (actionable) and a likely but unproven agreement (not actionable): Mulcahy v. The Queen (1868), L.R. 3 H.L. 306. Proving such an agreement is a very difficult task. Resolving this difficulty in the family law context by extending the tort to "likely" agreements or "presumed" agreements would, in effect, presume the spouse's "friend" liable merely because of his or her association with the custodial spouse, a rather drastic step.

44. But the paramount concern in extending the tort of conspiracy into the family law context is, I think, that such an extension would not be in the best interests of children. If the tort only applies to conduct in combination it would do little to encourage the maintenance and development of a relationship between both parents and their children. Yet it would be tailor‑made for abuse. It would lend itself so readily to malicious use by one spouse against the other. The fact that the action is against not only the ex‑spouse but also his or her "friend" may well provide an incentive to the plaintiff to litigate. Moreover, a single "agreement" to deny the plaintiff one visitation would be actionable and the success of that action would depend largely on uncertain evidence of agreement and intention as to which each party might be expected to take a fundamentally different view. These factors‑‑incentive to litigate, low threshold for actionability, uncertainty of success and issues of credibility with respect to the crucial evidence‑‑suggest frequent resort to this cause of action as a "weapon" with little possibility of amicable settlement. These concerns are aggravated by the fact that, if the tort of conspiracy were introduced into the family law context, it would be difficult to restrict it to the area of custody and access. Acts which contributed to marriage breakdown would also be actionable as conspiracy and the potential for detrimental impact on the children could be substantial. Having regard to the overriding concern for the best interests of the children, I am not persuaded that the tort of conspiracy should be extended to encompass the claim of the plaintiff.

(b) Other Torts

45. Counsel for the appellant submitted that the torts of intentional infliction of mental suffering and unlawful interference with another's relationship could cover the facts as pleaded. It may well be that the tort of intentional infliction of mental suffering could be extended to cover the facts alleged by the appellant. The requirements of this cause of action were set out in the case of Wilkinson v. Downton, [1897] 2 Q.B.D. 57. In that case the defendant as a "practical joke" told the plaintiff that her husband had been involved in an accident and had broken his legs. The plaintiff believed the defendant and as a result suffered nervous shock and a number of physical consequences. In granting recovery, Wright J. stated (at p. 59):

One question is whether the defendant's act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed, and it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs. The other question is whether the effect was, to use the ordinary phrase, too remote to be in law regarded as a consequence for which the defendant is answerable.

46. In this case, the conduct of the respondents may have been "plainly calculated to produce some effect of the kind which was produced". Certainly the conduct appears to be of the extreme and outrageous character which was held in Wilkinson v. Downton, supra, to be required before this cause of action exists. But there are a number of disadvantages associated with this tort which make me reluctant to extend it to the facts of this case. One such disadvantage is that a visible and provable illness caused by the defendant's action must be present for this tort to be actionable: see Guay v. Sun Publishing Co., 1953 CanLII 39 (SCC), [1953] 2 S.C.R. 216, per Estey J. at p. 238; Radovskis v. Tomm (1957), 1957 CanLII 451 (MB QB), 21 W.W.R. 658 (Man. Q.B.), at p. 664. This requirement is based on the need to discourage spurious claims‑‑an especially pressing need in the family law context where unnecessary and vexatious litigation is to be discouraged. Another disadvantage associated with this tort is that, even if it were extended to cover the case at bar, it might not provide the plaintiff with the compensation that he wishes. According to John G. Fleming, The Law of Torts (6th ed. 1983), at p. 32, "our courts, while at last admitting that injury to the nervous system is capable of causing recognisable physical harm, are not yet prepared to protect emotional security as such . . . ." If such a cause of action were extended to the facts of this case the appellant would only be entitled to recover damages stemming from recognizable physical or psychopathological harm caused by the actions of the defendant. This would include only the damages stemming from the appellant's treatment for mental depression. In my view, if another cause of action better vindicates the plaintiff's interest and is in the best interests of the children, this particular cause of action should not be recognized.

47. Finally, and most importantly, the extension of this cause of action to the custody and access context would not appear to be in the best interests of children. Like the tort of conspiracy the tort of intentional infliction of mental suffering would be relatively ineffective in encouraging conduct conducive to the maintenance and development of a relationship between both parents and their children. It is obvious also that such a cause of action, if it were made available throughout the family law context, would have the same potential for petty and spiteful litigation and, perhaps worse, for extortionate and vindictive behaviour as the tort of conspiracy. Indeed, the tort of intentional infliction of mental suffering appears to be an ideal weapon for spouses who are undergoing a great deal of emotional trauma which they believe is maliciously caused by the other spouse. It is not for this Court to fashion an ideal weapon for spouses whose initial, although hopefully short‑lived objective, is to injure one another, especially when this will almost inevitably have a detrimental effect on the children. Yet, if this cause of action were extended to encompass the facts of this case, it seems to me that there is no rational basis upon which its extension to other areas of family law could be resisted. The gist of the tort is the intentional infliction of mental suffering regardless of the relationship between plaintiff and defendant. It would be available in respect of all inter‑spousal conduct both before and after marital breakdown. I would therefore not extend this common law tort to the family law context where the spin‑off effects on the children could only be harmful.

48. There would appear to be no generalized tort of "wrongful interference with another's relationship" as the appellant submits. The law of torts up to this point has protected only certain types of relationships from interference. Relief has been granted for interference with contractual relationships (e.g., Lumley v. Gye (1853), 2 El. & Bl. 216, 118 E.R. 749), interference through intimidation and unlawful means (e.g., Rookes v. Barnard, [1964] A.C. 1129 (H.L.)), and interference with economic relations through injurious falsehood (e.g., Ratcliffe v. Evans, [1892] 2 Q.B. 524). The common denominator of these torts is that they constitute wrongful interference with economic relationships and I do not think they should be extended to a non‑economic relationship such as the one under review. As in the case of the tort of intentional infliction of mental suffering, if they were extended to the area of custody and access, there is no rational basis upon which their extension to other areas of family law could be resisted. They would be available in respect of all inter‑spousal conduct both before and after marital breakdown and torts grounded in intimidation and injurious falsehood would again seem to be tailor‑made for spouses, so motivated, to use against each other. Their extension to the family law area would not, it seems to me, be in the best interests of children.

49. But there are two other causes of action which could loosely be said to fall within the rubric of "wrongful interference with another's relationship" and which may well cover the case at bar. These are (a) a cause of action for interference with a right of access founded on the common law or the court order, and (b) a cause of action for breach of a fiduciary duty owed by the custodial to the non‑custodial parent to respect the latter's relationship with the child. As neither has traditionally been regarded as a "tort", I shall deal with them under separate headings.

(c) The Enforcement of a Parental Right

50. The appellant submitted by way of alternative to his claims in tort that a parent has at common law a right of access to his children upon which a civil suit can be based. He submitted further that a parent has a legally enforceable right of access pursuant to the order of the Court. These might be seen as separate sources of his parental right or, alternatively, the court order might be viewed as declaratory of his common law right for purposes of enforcement. The respondents submitted that there was no such thing as a right of access at common law, that access was part of a bundle of rights compendiously constituting custody, that the sole source of the appellant's access right was the court order and that the mechanisms for enforcement enacted in the Children's Law Reform Amendment Act, 1982, S.O. 1982, c. 20, were the only means of enforcement. They did not include the type of cause of action pleaded in this case.

51. I believe that there is considerable support for the view that access as a distinct juridical concept is purely a creature of statute. Prior to statute, fathers had an almost absolute common law right to the custody of their children to the total exclusion of mothers: see, for example, R. v. Greenhill (1836), 4 Ad. & E. 624, 111 E.R. 922, and for a general discussion see Susan Maidment, Child Custody and Divorce: The Law in Social Context (1984), at pp. 93‑95. It was not until 1839 that the rigours of this common law rule were ameliorated. In that year the British Parliament empowered the Court of Chancery in the Custody of Infants Act 1839, 2 & 3 Vict., c. 54 (U.K.) (Talfourd's Act), to make an order for the access of a mother to her children. The same statute permitted women to apply for custody of their children under seven years of age. But there could be no order for access except as an adjunct to an order for custody. Custody and access were conceptually linked under Talfourd's Act and have been so ever since. It is therefore doubtful that a common law right of access exists independently of statute.

52. Even if a common law parental right of access pre‑existed and survived the passage of Talfourd's Act, the subsequent development of the law of custody and access may have effectively eliminated it. The English Supreme Court of Judicature Act, 1873, 36 & 37 Vict., c. 66 (U.K.), expressly stipulated that in matters concerning the custody and guardianship of infants the rules of equity were to prevail over the common law: see the Judicature Act, R.S.O. 1980, c. 223, s. 25, repealed and replaced by the Courts of Justice Act, 1984, S.O. 1984, c. 11, s. 109. The paramountcy of the father's claim at common law had to yield to an equitable weighing of the merits of the respective claims of each parent and in this context the question of what would be best for the child became an important consideration. In 1886, the British Parliament passed the Guardianship of Infants Act, 1886, 49 & 50 Vict., c. 27 (U.K.), which provided in s. 5 that a court could make "such order as it may think fit regarding the custody of [an] infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father . . . ." In Ontario this statute was essentially duplicated in the Guardianship of Minors Act, S.O. 1887, c. 21.

53. At first the courts were much more comfortable assessing the competing claims of parents than they were in trying to decide what was in the best interests of children. But over time the best interests of children increasingly became an important concern of the court and today it is the paramount concern. See the Children's Law Reform Act, R.S.O. 1980, c. 68, as amended by the Children's Law Reform Amendment Act, 1982, supra, s. 1, which added s. 24, for a statutory expression of this principle. In light of these developments it can be said with some assurance that the concept of "parental rights" has fallen into disfavour. Parental responsibilities yes, but rights no. It appears, therefore, that the appellant is on shaky ground when he bases his case for damages on a violation or destruction of his "parental right" to access at common law. The access right has become the child's right, not the parent's right, and it would be a regressive step to recognize today a cause of action in the parent based on an outmoded concept of parental rights in children: see, for example, M v. M (child: access), [1973] 2 All E.R. 81. Accordingly, to summarize, I believe that the appellant cannot rely on the common law as the source of his right. He must rely on the court order because: (a) it is doubtful that a common law right of access independent of the statutory right granted by the court exists; and (b) even if such a right survived or came into existence after the enactment of Talfourd's Act, it could not have survived to the present day in the face of the shift in emphasis from parental rights to children's rights. In my view, the court order, which establishes that the appellant's access to his children is in his children's best interests, is the only possible source of the right he claims.

54. Three very persuasive factors lead me to hold that the appellant does not have a civil cause of action based on the "right" of access embodied in the court order. First, it is simply not in the child's best interests to recognize the general availability of an action based on the court order. Such an action would be available every time a visitation was denied by the custodial parent. Litigation could occur frequently, thus multiplying the traumatizing effects of the marriage breakdown on the child. Second, a civil action for breach of a court order has never been recognized by our law as a method of enforcing court orders. And third, the legislature, in spelling out the enforcement mechanisms, has not provided for such an action.

55. Since the appellant instituted his action the Children's Law Reform Amendment Act, 1982, supra, has been passed. Section 19(a) as enacted by that statute reaffirms that all matters relating to custody and access are to be decided in the child's best interests. Section 19(d) states that the Act is intended to provide for the more effective enforcement of custody and access orders. Section 35 permits the court to order supervised access, if necessary, and it may attach any conditions it considers appropriate. Section 37 empowers the court to authorize any person to apprehend the child so as to give effect to the entitlement of that person to access or custody. The police or the sheriff may be empowered by the court to apprehend the child to that end. An application for apprehension may be made ex parte. Section 38 may be used to require any person who may remove a child from Ontario to post a bond, to give up his or her passport and to transfer specific property to a named trustee to be held subject to the terms and conditions specified in the order. Section 39 allows a provincial court (family division) to impose fines of up to $1,000 and/or up to ninety days' imprisonment for contempt of a court order. Finally, s. 40 enables the court to order any person or public body to assist a parent in finding his or her child by giving the name and address of the person with whom the child resides. It is apparent from these provisions that the legislature is not unaware of the problem in relation to the enforcement of these orders. Yet it has not seen fit to provide a civil cause of action. I think we must assume that it acted advisedly in this regard. I would hold, therefore, that no cause of action can be based directly on the court order.

(d) Breach of Fiduciary Duty

56. The final cause of action to be considered is breach of fiduciary duty. This possibility was not advanced by counsel in his original material but, since the issue before the Court was whether the statement of claim should be struck out "as disclosing no reasonable cause of action", the Court was of the view that it should be addressed. Counsel was accordingly invited to file written submissions of which we have had the benefit.

57. In the past the question whether a particular relationship is subject to a fiduciary obligation has been approached by referring to categories of relationships in which a fiduciary obligation has already been held to be present. Some recognized examples of these categories are relationships between directors and corporations, solicitors and clients, trustees and beneficiaries, agents and principals, life tenants and remaindermen, and partners. As well, it has frequently been noted that the categories of fiduciary relationship are never closed: see, for example, Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335, at p. 384 per Dickson J. (as he then was); International Corona Resources Ltd. v. Lac Minerals Ltd. (1986), 1986 CanLII 2839 (ON SC), 53 O.R. (2d) 737 (H.C.); Standard Investments Ltd. v. Canadian Imperial Bank of Commerce (1985), 1985 CanLII 164 (ON CA), 52 O.R. (2d) 473; English v. Dedham Vale Properties Ltd., [1978] 1 All E.R. 382, at p. 398; Tufton v. Sperni, [1952] 2 T.L.R. 516, at p. 522; R. Goff and G. Jones, The Law of Restitution (2nd ed. 1978), at pp. 490‑91. An extension of fiduciary obligations to new "categories" of relationship presupposes the existence of an underlying principle which governs the imposition of the fiduciary obligation.

58. However, there has been a reluctance throughout the common law world to affirm the existence of and give content to a general fiduciary principle which can be applied in appropriate circumstances. Sir Anthony Mason ("Themes and Prospects" in P. Finn, ed., Essays in Equity (1985), at p. 246) is probably correct when he says that "the fiduciary relationship is a concept in search of a principle". As a result there is no definition of the concept "fiduciary" apart from the contexts in which it has been held to arise and, indeed, it may be more accurate to speak of relationships as having a fiduciary component to them rather than to speak of fiduciary relationships as such: see J. C. Shepherd, The Law of Fiduciaries (1981), pp. 4‑8. Perhaps the biggest obstacle to the development of a general fiduciary principle has been the fact that the content of the fiduciary duty varies with the type of relationship to which it is applied. It seems on its face therefore to comprise a collection of unrelated rules such as the rule against self‑dealing, the misappropriation of assets rule, the conflict and profit rules and (in Canada) a special business opportunity rule: see R. P. Austin, "The Corporate Fiduciary: Standard Investments Ltd. v. Canadian Imperial Bank of Commerce" (l986‑87), 12 Can. Bus. L.J. 96, at pp. 96‑97; P. D. Finn, Fiduciary Obligations (1977). The failure to identify and apply a general fiduciary principle has resulted in the courts relying almost exclusively on the established list of categories of fiduciary relationships and being reluctant to grant admittance to new relationships despite their oft‑repeated declaration that the category of fiduciary relationships is never closed.

59. A few commentators have attempted to discern an underlying fiduciary principle but, given the widely divergent contexts emerging from the case law, it is understandable that they have differed in their analyses: see, for example, E. Vinter, A Treatise on the History and Law of Fiduciary Relationships and Resulting Trusts (3rd ed. 1955); Ernest J. Weinrib, "The Fiduciary Obligation" (1975), 25 U.T.L.J. 1; Gareth Jones, "Unjust Enrichment and the Fiduciary's Duty of Loyalty" (1968), 84 L.Q.R. 472; George W. Keeton and L. A. Sheridan, Equity (1969), at pp. 336‑52; Shepherd, supra, at p. 94. Yet there are common features discernible in the contexts in which fiduciary duties have been found to exist and these common features do provide a rough and ready guide to whether or not the imposition of a fiduciary obligation on a new relationship would be appropriate and consistent.

60. Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:

(1) The fiduciary has scope for the exercise of some discretion or power.

(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.

(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

61. Very little need be said about the first characteristic except this, that unless such a discretion or power is present there is no need for a superadded obligation to restrict the damaging use of the discretion or power: see, for example, R. H. Deacon & Co. v. Varga (1972), 1972 CanLII 42 (ON CA), 30 D.L.R. (3d) 653 (Ont. C.A.), aff'd sub nom. Varga v. F. H. Deacon & Co., 1973 CanLII 32 (SCC), [1975] 1 S.C.R. 39.

62. With respect to the second characteristic it is, of course, the fact that the power or discretion may be used to affect the beneficiary in a damaging way that makes the imposition of a fiduciary duty necessary. Indeed, 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. For example, it is generally conceded that a director is in a fiduciary relationship to the corporation. But the corporation's interest which is protected by the fiduciary duty is not confined to an interest in the property of the corporation but extends to non‑legal, practical interests in the financial well‑being of the corporation and perhaps to even more intangible practical interests such as the corporation's public image and reputation. Another example is found in cases of undue influence where a fiduciary uses a power over the beneficiary to obtain money at the expense of the beneficiary. The beneficiary's interest in such a case is a pecuniary interest. Finally, in Reading v. Attorney‑General, [1951] A.C. 507 (H.L.), a British soldier who was able to smuggle items past Egyptian guards because these guards excused uniformed soldiers from their inspections was held to be a fiduciary. The Crown's interest was a "practical" or even a "moral" one, namely that its uniform should not be used in corrupt ways. The soldier‑fiduciary had no power to change the legal position of the British Crown, so how could the Crown's legal interests have been affected by the soldier's action? The same can be said of the Crown's interest in Attorney‑General v. Goddard (1929), 98 L.J. (K.B.) 743, where the Crown was able to recover bribes which had been paid to its employee, a sergeant in the Metropolitan Police. In my view, what was protected in that case was not a "legal" interest but a vital and substantial "practical" interest.

63. The third characteristic of relationships in which a fiduciary duty has been imposed is the element of vulnerability. This vulnerability arises from the inability of the beneficiary (despite his or her best efforts) to prevent the injurious exercise of the power or discretion combined with the grave inadequacy or absence of other legal or practical remedies to redress the wrongful exercise of the discretion or power. Because of the requirement of vulnerability of the beneficiary at the hands of the fiduciary, fiduciary obligations are seldom present in the dealings of experienced businessmen of similar bargaining strength acting at arm's length: see, for example, Jirna Ltd. v. Mister Donut of Canada Ltd. (1971), 1971 CanLII 42 (ON CA), 22 D.L.R. (3d) 639 (Ont. C.A.), aff'd 1973 CanLII 31 (SCC), [1975] 1 S.C.R. 2. The law takes the position that such individuals are perfectly capable of agreeing as to the scope of the discretion or power to be exercised, i.e., any "vulnerability" could have been prevented through the more prudent exercise of their bargaining power and the remedies for the wrongful exercise or abuse of that discretion or power, namely damages, are adequate in such a case.

64. A similar three‑fold formulation of the principle underlying fiduciary obligation has recently been adopted by the Australian High Court in deciding whether a sole distributor of a product has fiduciary obligations. In Hospital Products Ltd. v. United States Surgical Corp. (1984), 55 A.L.R. 417, Gibbs C.J. at p. 432, considered the following test "not inappropriate in the circumstances":

...there were two matters of importance in deciding when the court will recognize the existence of the relevant fiduciary duty. First, if one person is obliged, or undertakes, to act in relation to a particular matter in the interests of another and is entrusted with the power to affect those interests in a legal or practical sense, the situation is ... analogous to a trust. Secondly, . . . the reason for the principle lies in the special vulnerability of those whose interests are entrusted to the power of another to the abuse of that power.

Mason J. in the same case stated (at p. 454) that the critical feature in these relationships is that:

...the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position.

A similar formulation of the principle was enunciated in at least one Canadian case. In H. L. Misener and Son Ltd. v. Misener (1977), 1977 CanLII 1815 (NS CA), 77 D.L.R. (3d) 428 (N.S.C.A.), Macdonald J.A. enunciated the principle in this way at p. 440:

The reason such persons [directors] are subjected to the fiduciary relationship apparently is because they have a leeway for the exercise of discretion in dealing with third parties which can affect the legal position of their principals.

As well, it has been advanced by many learned commentators: see, generally, Weinrib, supra, at pp. 4‑9; Shepherd, supra, at pp. 98, 138‑41; Harold Brown, "Franchising‑‑A Fiduciary Relationship" (1971), 49 Texas Law Rev. 650, at p. 664.

65. In my view, the relationship between the custodial parent and the non‑custodial parent fits within the fiduciary principle I have described. There is no doubt that prior to the custody and access order the parent who will become the non‑custodial parent has a very substantial interest in his or her relationship with the child. The granting of the access order confirms that the relationship between the non‑custodial parent and the child is of benefit to the child and therefore worth preserving. That relationship predated the access order and it continues to subsist after the access order is made. It is not itself created by the access order. But the custody and access order, by splitting access from custody, puts the custodial parent in a position of power and authority which enables him or her, if so motivated, to affect the non‑custodial parent's relationship with his or her child in an injurious way. The selfish exercise of custody over a long period of time without regard to the access order can utterly destroy the non‑custodial parent's relationship with his child. The non‑custodial parent (and, of course, the child also) is completely vulnerable to this. Yet the underlying premise in a grant of custody to one parent and access to the other is that the custodial parent will facilitate the exercise of the other's access rights for the sake of the child. This is reflected in s. 16(10) of the Divorce Act, 1985, S.C. 1986, c. 4, which provides:

66. ...

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

The custodial parent is expected to act in good faith not only towards the non‑custodial parent but also towards the children. Section 16(10) makes it clear that this is one of the qualifications of a good custodial parent.

66. It seems to me that the three underlying characteristics of relationships in which fiduciary duties are imposed are present in the relationship under review. The custodial parent has been placed as a result of the court's order in a position of power and authority over the children with the potential to prejudicially affect and indeed utterly destroy their relationship with their non‑custodial parent through improper exercise of the power. There can be no doubt also that the requisite vulnerability is present and that in practical terms there is little that the non‑custodial parent can do to restrain the custodial parent's improper exercise of authority or to obtain redress for it. The options open to an aggrieved non‑custodial parent in the face of a campaign by a custodial parent to cut the non‑custodial parent off from the child are exceedingly limited. As mentioned above, s. 37 of the Children's Law Reform Act gives courts the authority to direct a sheriff or police force, or both, to locate, apprehend and deliver back a child who is being unlawfully withheld from a person entitled to custody or access. This does not appear to be an appropriate means of compelling a custodial parent to permit access and it seems unlikely that any parent sensitive to his or her child's feelings would resort to it. The option of refusing payment of child maintenance in order to secure a right of access is not available to a non‑custodial spouse: Wright v. Wright (1973), 1973 CanLII 662 (ON CA), 1 O.R. (2d) 337 (C.A.) The powers of the court to order a custodial parent to post a bond or other security, to have support payments made to a specified trustee who holds them subject to certain conditions, and to have the custodial parent give up his or her passport are usually ineffective. The forfeiture of the bond or other security and the withholding of support payments by a trustee may not be in the child's best interests (it may affect the custodial parent's ability to meet the expenses of raising the child) and the giving up of the passport only prevents the child from being removed from the country. Section 39 of the Children's Law Reform Act allows a Provincial Court (Family Division) to impose fines of up to $1,000 and/or imprisonment of up to ninety days for contempt. But imprisoning and fining the custodial parent will usually not be in the child's best interests and will therefore seldom be available to the non‑custodial parent. As James G. McLeod has written ("Annotation" to O'Byrne v. Koresec (1986), 1986 CanLII 1315 (BC SC), 2 R.F.L. (3d) 104, at pp. 105):

Where they [access orders] are wilfully ignored, proper sanctions must be imposed. Such actions may be a fine ... or imprisonment....Neither of these sanctions however, is entirely appropriate. In many cases, the custodial spouse may not have the resources to pay the fine without resort to funds required for day‑to‑day living expenses, in which event the child will suffer....Where imprisonment is ordered, one approach would be to imprison the custodial parent over weekends when access by the other parent could be enjoyed, so as to minimize disruption to the children. Even then, the children may suffer from the knowledge (which they will surely gain!) that one parent has put the other parent in jail.

67. It is sometimes suggested that transferring custody is an appropriate means of punishing the custodial parent for an ongoing denial of access: see, for example, the suggestions made in Woodburn v. Woodburn (1975), 1975 CanLII 1925 (NS SC), 11 N.S.R. (2d) 528, 21 R.F.L. 179 (S.C.), at pp. 182‑183; Jones v. Jones (1970), 1970 CanLII 1557 (ON CA), 1 R.F.L. 295 (Ont. C.A.), at pp. 295‑96; Currie v. Currie (1975), 1975 CanLII 1892 (AB SCTD), 18 R.F.L. 47 (Alta. S.C.), at p. 55; Donald v. Donald (1973), 1973 CanLII 1774 (NB CA), 6 N.B.R. (2d) 665, at p. 668. And indeed this is being done: see Nayar v. Nayar (1981), 1981 CanLII 391 (BC CA), 24 R.F.L. (2d) 400 (B.C.C.A.), and Fast v. Fast (1983), 1983 CanLII 2035 (SK CA), 33 R.F.L. (2d) 337 (Sask. C.A.) But again, because of the bonding that takes place between the custodial parent and his or her child over a period of time, such a step may not be in the child's best interests. In Racine v. Woods, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173, a case involving a custody dispute between an Indian child's natural parents and the child's adopted parents, this Court stressed the need for children to have continuity of relationships. It held that, while an Indian child's cultural heritage and background were important factors to be considered by the court in applying the best interests doctrine, these factors had declined in importance in light of the degree of psychological bonding which had developed with the foster parents. Because of this psychological bonding a transfer of custody may not be a suitable remedy. Finally, as has been indicated above, there are good reasons for not extending common law causes of action in tort in order to permit the non‑custodial parent to obtain redress for the custodial parent's denial of access.

68. I have already indicated that substantial non‑legal, practical interests are protected by the imposition of fiduciary duties in appropriate cases. It cannot be denied that the non‑custodial parent's interest in his or her child is as worthy of protection as some interests commonly protected by a fiduciary duty. For example, just as a corporation has a substantial interest in its relationship to corporate opportunities and customers that is worthy of protection (see, for example, Canadian Aero Service Ltd. v. O'Malley, 1973 CanLII 23 (SCC), [1974] S.C.R. 592) it can be said that a non‑custodial parent has a substantial interest in his or her relationship with his or her child that is worthy of protection. However, one salient distinction between the non‑custodial parent‑child relationship and the corporation‑customer relationship is that the former involves a substantial non‑economic interest of the parent while the latter normally involves a substantial economic interest of the corporation. But I believe that this distinction should not be determinative. The non‑custodial parent's interest in the relationship with his or her child is without doubt of tremendous importance to him or her. To deny relief because of the nature of the interest involved, to afford protection to material interests but not to human and personal interests would, it seems to me, be arbitrary in the extreme. In contract law equity recognizes interests beyond the purely economic when, instead of awarding damages in the market value of real estate against a vendor who has wrongfully refused to close, it grants specific performance. Other non‑economic interests should also be capable of protection in equity through the imposition of a fiduciary duty. I would hold, therefore, that the appellant's interest in a continuing relationship with his or her child is capable of protection by the imposition of such a duty.

69. Before a cause of action for breach of fiduciary duty can be said to exist in this limited area within the field of family law, it is necessary to ask the same question as was asked in the context of the various torts proposed by the appellant, namely should existing fiduciary principles be extended? In examining this question it will again be necessary to consider the possibility that this cause of action might be used as a weapon by vindictive spouses and, more important still, it is necessary to consider whether or not the extension of fiduciary principles to this particular relationship would be in the best interests of children.

70. This cause of action has, in my view, a number of significant advantages over the others. First, it arises only in one particular circumstance, the circumstance of vulnerability created by the splitting of the custody and access of children by the issuance of a court order. Unlike some of the torts examined, this action would not be available in any other family law context. This is a very important consideration in light of the possible detrimental impact on children of recurring lawsuits by one parent against the other.

71. Second, the cause of action for breach of fiduciary duty creates a very strong incentive to custodial parents to exercise their custodial rights so as to further the best interests of their children, to recognize that their children are entitled to an ongoing relationship with their other parent and that it is a serious matter to use the authority confided in them by an order of the court to deprive their children of this other dimension in their lives. I believe that this cause of action will help to promote a healthy and beneficial relationship between a child and both parents and is, in this respect, much more conducive to the best interests of the child than the tort actions previously considered.

72. Finally, unlike the causes of action in tort, the cause of action for breach of fiduciary duty allows the court to take into account conduct of a non‑custodial parent (whether related to custody and access issues or not) which might be contrary to the best interests of children. When considering breaches of equitable duty and awarding equitable remedies the court has a wide scope for the exercise of discretion which does not exist in respect of common law causes of action. In the context of breach of fiduciary duty this discretion would allow the court to deny relief to an aggrieved party or grant relief on certain terms if that party's conduct has disabled him or her from full relief, e.g., non‑payment of spousal support or previous abuse of access rights. There is neither precedent nor historical basis for the exercise of such a discretion in the case of a common law tort action. The tort would be actionable regardless of the inequitable conduct of the plaintiff.

73. It may be objected that despite these advantages which the action for breach of fiduciary duty possesses over the tort actions I have examined, the availability of any action would be contrary to the best interests of children because of the unavoidable deleterious effects of litigation on children. To some extent, this objection is well‑founded. Inter‑spousal litigation may create a conflict of loyalties in the children and may also have the effect of impairing child support. But it is within the jurisdiction of the courts, particularly courts of equity, to prevent a cause of action from proceeding if there is any risk of injury to the children's interests. The interests of the children are the paramount concern. I would hold, therefore, that the cause of action for breach of fiduciary duty can proceed only if there is no risk that the support of the children will be impaired and no risk of a harmful conflict of loyalties arising in the children. The former condition may be satisfied when the children are fully grown and self‑supporting or where the custodial parent has substantial assets. The latter condition may be satisfied where the relationship between the non‑custodial parent and the children has been so severely damaged by the custodial parent's conduct that it is unlikely that a conflict of loyalties would occur. Accordingly, it will not be every denial of access rights that will give rise to a cause of action for breach of fiduciary duty but only where a sustained course of conduct has caused severe damage to the non‑custodial parent‑child relationship to the detriment of both the non‑custodial parent and the child.

74. The legislature has provided a series of remedies for the violation of the court order by the denial of access rights on specific occasions. As I have indicated earlier in the context of a common law cause of action enforcing a parental right of access, it is not open to this Court to introduce common law causes of action which the legislature did not see fit to provide in order to redress the violation of a court order. The ability of the court to introduce common law actions into areas where the legislature has intervened was recently addressed by this Court in Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181. In that case the plaintiff sought recognition of a new common law tort against unjustified invasion of one's interest not to be discriminated against in respect of an employment opportunity on grounds of race or national origin. The plaintiff urged that this common law right of action arose directly from a breach of The Ontario Human Rights Code, R.S.O. 1970, c. 318, as amended. This Court denied the existence of such an action because of "the comprehensiveness of the Code in its administrative and adjudicative features, the latter including a wide right of appeal to the Courts on both fact and law" (at p. 183 per Laskin C.J.) Laskin C.J. noted, at p. 188, that there was "a narrow line between founding a civil cause of action directly upon a breach of a statute and as arising from the statute itself and founding a civil cause of action at common law by reference to policies reflected in the statute and standards fixed by the statute". In his view, the proposed action fell into the former category. Laskin C.J. at p. 189 also stated:

It is one thing to apply a common law duty of care to standards of behaviour under a statute; that is simply to apply the law of negligence in the recognition of so‑called statutory torts. It is quite a different thing to create by judicial fiat an obligation‑‑one in no sense analogous to a duty of care in the law of negligence‑‑to confer an economic benefit upon certain persons, with whom the alleged obligor has no connection, and solely on the basis of a breach of statute which itself provides comprehensively for remedies for its breach.

75. In my view, the recognition of the existence of a cause of action for breach of fiduciary duty, limited in the way I have suggested supra, is in no way inconsistent with the Seneca College case. There are two distinguishing features which lead me to this view. First, what is being proposed in this case is a form of equitable relief. The comments made in Seneca College were restricted to common law relief. There is every reason to believe that it would require stronger statutory language to oust the jurisdiction of the court to grant equitable relief for an equitable wrong such as breach of fiduciary duty. As already pointed out, the extensive statutory intervention of the legislature in the area of corporate law has not succeeded in ousting the equitable jurisdiction of the court to grant relief for breach of fiduciary duty in that context. Historically, courts of equity have even been willing to grant equitable relief supplementing statutory relief for a statutory wrong. For example, courts of equity have granted injunctions restraining the commission of certain acts even where a statute proscribes and provides remedies for the commission of those acts. This is done whenever the applicable statutory remedies are ineffective to prevent their commission and severe harm will result: Halsbury's Laws of England, vol. 16, 4th ed., paragraph 1215, at p. 815; Attorney‑General v. Sharp, [1931] 1 Ch. 121 (C.A.); Attorney‑General v. Premier Line, Ltd., [1932] 1 Ch. 303. I believe, therefore, that it would take clear and compelling statutory language to oust equity's broad inherent jurisdiction to give equitable relief in appropriate circumstances. No such statutory language exists in any of the legislation applicable to this case.

76. Second, the cause of action for breach of fiduciary duty is not founded "directly upon breach of a statute". Instead, it falls on the other side of the line drawn by Laskin C.J.‑‑i.e., it is a cause of action existing independently of the statute founded "by reference to policies reflected in the statute and standards fixed by the statute". While the legislature's enforcement scheme is dedicated to the enforcement of the court order as such, the cause of action for breach of fiduciary duty is dedicated to the protection of the child's relationship with his or her non‑custodial parent on which the court order was based. That relationship was not created by the court order. The remedy is accordingly given not for individual violations of the court order or the statute but for an entire course of conduct designed to undermine or destroy the underlying relationship which access was intended to preserve and foster.

77. Accordingly, it would be my view that the cause of action for breach of fiduciary duty should be extended to this narrow but extremely important area of family law where the non‑custodial parent is completely at the mercy of the custodial parent by virtue of that parent's position of power and authority over the children. If this is a situation which for very good reason the common law is ill‑equipped to handle, resort to equity is entirely appropriate so that no just cause shall go without a remedy. The breach will be actionable only when judgment recovery will not impair child support and when the non‑custodial parent‑child relationship has been so severely damaged by the custodial parent's conduct as to make it highly unlikely that the action brought by the non‑custodial parent would be the cause of any conflict of loyalties in the children. Such a cause of action, properly tailored as only equity can do and has done in other contexts, will create a strong incentive to further the best interests of children while eliminating the more harmful effects commonly associated with inter‑spousal litigation.

78. One word of caution may be in order. At times, a perfectly legitimate exercise by the custodial parent of his or her custodial rights or custodial obligations will result in an individual denial of access to the other parent. It is not the role of the court to review this sort of exercise of discretion with respect to the child. It is only when a sustained course of conduct designed to destroy the relationship is being engaged in that there is a breach of the duty. If and when a custodial parent comes to believe that continued access to the child by the other parent is not in the child's interests or is harmful to the child, the proper course for the custodial parent to follow is not to engage in ongoing wilful violations of the access order but to apply to the court to vary or rescind it.

(iii) The Remedy

79. The remedies normally awarded for breach of fiduciary duty are the imposition of a constructive trust and the accounting of profits. Neither remedy is applicable here. However, equitable compensation is also an available remedy: see, for example, Seager v. Copydex Ltd., [1967] 1 W.L.R. 923 (C.A.); Dawson and Mason Ltd. v. Potter, [1986] 2 All E.R. 418 (C.A.); Nocton v. Lord Ashburton, [1914] A.C. 932 (H.L.), at pp. 946, 956‑57; U.S. Surgical Corp. v. Hospital Products International Pty. Ltd., [1982] 2 N.S.W.L.R. 766 (S.C., Eq. Div.), at p. 816. 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.

80. The issue in the leading case of Nocton v. Lord Ashburton was the liability of the appellant's solicitor to his client, the respondent, in respect of advice given by the solicitor that the client release part of the premises comprised in a mortgage held by him. Neville J. dismissed the action but the Court of Appeal held the appellant liable in damages for deceit. The House of Lords disagreed that the solicitor was liable in tort but held that the solicitor had failed to discharge his fiduciary duty to the client. This was a matter falling within the exclusive jurisdiction of equity. Viscount Haldane explained that the Court of Chancery, being a court of conscience, "could order the defendant, not ... to pay damages as such, but to make restitution, or to compensate the plaintiff by putting him in as good a position pecuniarily as that in which he was before the injury".

81. Viscount Haldane pointed out that it was no bar to an award of equitable compensation that the plaintiff would have had a remedy in damages for breach of contract. It might be to the plaintiff's advantage to claim for compensation in equity. Viscount Haldane stated at p. 957:

My Lords, since the Judicature Act any branch of the Court may give both kinds of relief, and can treat what is alleged either as a case of negligence at common law or as one of breach of fiduciary duty. The judgment of Jessel M.R. in Cockburn v. Edwards [(1881) 18 Ch. D. 449] may, I think, really be regarded as an illustration of the latter jurisdiction. In the case with which we are dealing the statement of claim was framed mainly on the lines of breach of fiduciary duty. This was probably deliberately done in order to endeavour to get over the difficulty occasioned by the Statute of Limitations as regards any mere case of negligence in the original mortgage transaction of 1904. As a consequence fraud has been charged in the peculiar sense in which it was the practice to charge it in Chancery procedure in cases of this kind. But the facts alleged would none the less, if proved, have afforded ground for an action for mere negligence.

He then goes on to conclude at p. 957:

It was really an action based on the exclusive jurisdiction of a Court of Equity over a defendant in a fiduciary position in respect of matters which at law would also have given a right to damages for negligence.

82. In a learned article on "The Equitable Remedy of Compensation" (1982), 13 Melbourne Univ. Law Rev. 349, the author, Ian E. Davidson, discusses the fact that the quantum of common law damages and of equitable compensation need not necessarily be the same because different principles apply. Quoting from p. 352:

Although compensation in Equity will often produce the same result as damages the common law and equitable remedies utilise different rules to achieve the similar goal of compensating a plaintiff for loss suffered. This can lead to significant differences in the ultimate awards. For example, common law damages in negligence and contract are subject to requirements of foreseeability and remoteness which are not relevant to Equity when it restores property or money lost by breach of an equitable obligation. This is brought out by the judgment of Street J. in Re Dawson (deceased) [(1966) 2 N.S.W.R. 211] which illustrates the different principles involved in the assessment of compensation in Equity and damages at law.

While it is premature at this stage to consider the proper level of compensation should the appellant succeed in this case, I would think that equitable compensation would allow the appellant to recover not only his out‑of‑pocket expenses incurred throughout the campaign to destroy his relationship with his children but also a realistic sum for his pain and suffering which in this case would include compensation for the severe depression he suffered as a result of the respondents' conduct. In assessing the appropriate sum for "pain and suffering" some assistance may be gleaned from cases allowing recovery for "loss of guidance, care and companionship" in wrongful death actions pursuant to s. 60 of the Family Law Reform Act, (now s. 61 of the Family Law Act 1986, S.O. 1986, c. 4). In examining these cases regard should be paid to the apt comments made by J. Holland J. in Zik v. High (1981), 1981 CanLII 1699 (ON SC), 35 O.R. (2d) 226 (H.C.), at p. 237:

...s. 60 of the Family Law Reform Act, 1978 cries out for the exercise of judicial restraint in the general interest of the public in the assessment of damages consequent upon an inquiry to another as in this case. I say this because uncontrolled by such restraint the ceiling under the heading of loss of guidance, care and companionship for an award could be unlimited. Much of s. 60, as I view it, was a legislative attempt to codify the principle laid down in St. Lawrence & Ottawa Railway Co. v. Lett (1885), 1885 CanLII 7 (SCC), 11 S.C.R. 422, and enunciated once again by the Supreme Court of Canada in Vana v. Tosta et al., 1967 CanLII 21 (SCC), [1968] S.C.R. 71, . . . that loss of care and guidance, where a mother was killed leaving children, was a measurable pecuniary loss but that the amount to be awarded under that heading should be modest, although not merely conventional.

These comments are especially appropriate in this context where the prospect of very sizable awards may encourage unmeritorious actions possibly detrimental to the children's best interests.

83. The usefulness of the remedy of equitable compensation for breach of fiduciary duty is hard to assess from the case law since the award made in many of the cases is not always identified as equitable compensation. For example, in Seager v. Copydex, supra, the plaintiff, while negotiating with the defendant company to market his patented carpet grip "Invisigrip", disclosed details of the grip. Later the defendant applied to patent a grip very similar to the plaintiff's using the same name "Invisigrip". Its assistant manager who had been present at the confidential interview was named as the inventor in the patent application. The Court of Appeal found the defendant liable for breach of confidence and held the plaintiff entitled to damages to be assessed by the Master on the basis of reasonable compensation for the use of confidential information. Lord Denning M.R. stated at p. 932:

It may not be a case for injunction or even for an account, but only for damages, depending on the worth of the confidential information to him [the defendant] in saving him time and trouble.

The Court made no reference to any problem in awarding damages for breach of purely equitable obligations, particularly in a case where an injunction would not be granted, nor did it refer to the inherent compensatory jurisdiction of equity which would appear to be the proper basis for the award. Nor did it discuss the inherent jurisdiction of equity to award equitable compensation when the issue of the correct basis for assessing the damages was referred back to it in Seager v. Copydex Ltd. (No. 2), [1969] 1 W.L.R. 809. Davidson concludes in his article that awards of damages in cases such as Seager are applications of the compensatory jurisdiction of equity affirmed in Nocton v. Lord Ashburton although not identified by the courts as such.

4. Conclusion

84. The facts as pleaded in the statement of claim could, if proved, give rise to a cause of action for breach of fiduciary duty. The plaintiff alleges that the defendants engaged in a course of conduct over a substantial period of time designed to defeat his access rights and destroy his relationship with his children, that they were in fact successful in so doing, and that he incurred financial loss, the loss of his relationship with his children, and damage to his psychiatric and physical health as a consequence. The action should therefore proceed to trial.

5. Disposition

85. I would allow the appeal, set aside the orders of the Ontario Court of Appeal and of Boland J. and direct the respondents to file their statement of defence to the action within twenty days. The appellant should have his costs both here and in the courts below.

Appeal dismissed with costs, Wilson J. dissenting.

Solicitors for the appellant: Osler, Hoskin, Harcourt, Toronto.

Solicitor for the respondents: Gregory Frink, Ottawa.

^* See Erratum [2011] 1 S.C.R. iv.