Davis (Re), [1894] O.J. No. 177
Ontario Judgments
Ontario High Court of Justice
Common Pleas Division
Street J.
May 18, 1894.
[1894] O.J. No. 177 | 25 O.R. 579
IN THE MATTER OF Ethel Davis an Infant
Case Summary
Infant — Custody of — British Subjects Married in this Province — Removal to the United States — Husband Naturalized — Divorce Obtained by Wife.
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The parents of a child seven years old, British subjects and married in this Province, where the child was born, removed to the United States, where the husband took out naturalization papers. In consequence of the husband’s alleged intemperance and adultery the wife left him, and on the ground of such adultery, she applied to the Court there and obtained a decree granting her a divorce and the custody of the child. Shortly before the decree was pronounced, and with the object of escaping its effect, the husband returned to this Province, bringing the child with him.
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1 On an application by the wife for the custody of the child an order was made granting her such custody.
2 A writ of habeas corpus was issued upon the application of Maria Davis, the mother of the infant, commanding John W. Davis, the father of the infant, to produce her before the Court. Upon a return to the writ and upon the production of the infant in Court on the 5th May, 1894, the question as to the right to her custody was argued upon the affidavits and evidence then read and heard, the effect of which is set out in the judgment.
3 May 5th, 1894. L. M. McCarthy, for the applicant.
4 W. H. Blake, for the father.
| May 18th, 1894. STREET J. |
5 The parents of the child were married at Dunnville, Ont., on the 4th June, 1883, and the child in question, the only surviving child of the marriage, was born on the 13th [25 OR Page580] January, 1886. In April, 1890, they moved to Buffalo, N.Y., where the husband went into business; and on the 12th August, 1891, he filed in the office of the county clerk at Buffalo, a sworn declaration as follows:
“The declaration of John W. Davis, of Erie County, late of Canada. I, John W. Davis, do solemnly swear that it is bonâ fide my intention to become a citizen of the United States of America, and renounce for ever all allegiance to any foreign Prince, Potentate, State, or Sovereignty whatsoever, particularly the Queen of Great Britain and Ireland to whom I now owe allegiance.
- JOHN W. DAVIS.
“Sworn before me August 12, 1891.
| “C. A. ORR, Clerk.” |
6 In February, 1892, his wife left him taking with her the child in question, and another younger child, since deceased. She gives as her reason for leaving him his habits of drunkenness, his neglect to provide for her and his children, by reason of which she alleges that she was obliged to support him as well as her children and herself: and his accusations against her of adultery with a boarder. She lived apart from him and supported the children until July, 1893, when he took away the children during her absence and placed them, without her knowledge, in the German Roman Catholic Orphanage in Buffalo, where the youngest child died shortly afterwards.
7 In September, 1893, the wife instituted proceedings, against her husband in the Superior Court at Buffalo for a divorce from him upon the ground of his adultery: he was served with notice of the proceedings and appeared by his attorneys but offered no evidence in his defence. Evidence was given on the part of the wife, and the Court found all the material facts charged in the complaint to be true and granted the divorce, awarding also to the wife the custody of Ethel Davis the infant here in question: the Court further ordered that the wife should be at liberty to marry again, but that the husband should not be at liberty to marry during the lifetime of the wife. [25 OR Page581]
8 This judgment was pronounced on the 15th December, 1893.
9 Shortly before it was pronounced the husband left Buffalo, taking the infant with him and went to Smithville, in the county of Lincoln in this Province, where be now resides with his mother.
10 In his answer to the application, the husband denies having been guilty of adultery, and while admitting having been occasionally guilty of excess in the use of intoxicating liquors, denies having indulged in them to the extent charged, or to an extent justifying his wife in leaving him, and asserts that although he still continues to use them in moderation, he never now uses them to excess. He appears to have led a proper life since his return to Canada; he and his child live with his mother, who is a most respectable woman of seventy-five years of age: and he has a married sister living in the neighbourbood who assists in the care of the child. He repeats in his affidavits his charges of adultery against his wife and asserts his belief from having seen her last June that she was at that time in the family way by reason of some adulterous intercourse.
11 The applicant is a professional nurse, and lives in Buffalo with a sister there who is married; she earns seven dollars a week with a prospect of increasing her earnings to ten dollars a week.
12 The conclusion I must draw from the evidence, I think, is that the husband was in the habit of drinking to excess, and that he repeatedly accused his wife of infidelity, and by his conduct in these respects justified her in leaving him: that he has entirely failed to support his accusations against her of improper or immoral conduct either during their cohabitation or since their separation, but that since the separation he has himself committed adultery with the woman named in the affidavits.
13 Then upon the question of the divorce proceedings, I can come to no other conclusion than that he went to Buffalo with the intention of permanently residing there. He went into business there and filed a formal sworn [25 OR Page582] declaration of his intention to renounce his allegiance to the Queen and to become a citizen of the United States. It is true, that he now swears quite as strenuously, that he never had any such intention, and that he only made the declaration because he could not get a government contract except by doing so. I think the facts lead to the conclusion, that at the time he made the declaration his intention was as set forth in it; his evidence upon the other matters involved in the present application is certainly not assisted by his explanation of his motives for making this declaration.
14 He was, therefore, domiciled in Buffalo, when the proceedings for divorce were instituted, and he continued his actual residence there until a very short time before the decree was made. The Court there, finding the adultery proved, gave to Mrs. Davis the custody of the child. It undoubtedly had jurisdiction over all the parties at the time the proceedings were instituted, and I can find no authority for the position that their jurisdiction was taken away by the departure of the defendant from the country with the apparent object of escaping the consequences of the impending judgment.
15 The foreign guardian has no absolute rights as such under this judgment in this country, but the fact of her appointment by the Court in Buffalo is entitled to great weight in determining the proper custody here: Johnstone v. Beattie, 10 Cl. & F. 42; Hope v. Hope, 4 DeG. M. &. G. 328.
16 In addition to the weight to be attached to the appointment of Mrs. Davis by the Court in Buffalo, the weight of the other circumstances is, I think, strongly in her favour. The separation of the husband and wife, seems to have been principally, if not entirely, due to his misconduct; she seems at least as likely to be able to support the child in comfort as he does; he has been found guilty of adultery, and has confessed to occasional intoxication, and to continued use of liquor, though, he says, only in moderation. If all these events had happened in this [25 OR Page583] Province, and not in the United States, I think I should not have hesitated to say, that the wife, and not the husband, ought to have the child, and I do not think I should refuse to give the custody to her because she will take it to Buffalo. I think, therefore, that an order must be made, giving to the applicant, Maria Davis, the custody of the child, until or unless some further order shall be made, and she should have the costs of the application.
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