Kruger v. Booker

Kruger v. Booker

Majority held the November 6, 1958 parental agreement — entered into with the father’s full knowledge of the breach and the impending remarriage — was valid and should be given effect absent proof of a substantial change of circumstances affecting the children’s welfare; the evidence did not show a change sufficient to justify taking the daughters from their mother, so custody as agreed remained in the children’s best interests.

Citation
[1961] SCR 231
Parties
Defendant/appellant: Vera Leona Kruger; Plaintiff/respondent: Ernest William Booker
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
24 January 1961
Procedural Posture
Divorce and Custody / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario
Outcome
Appeal allowed (majority); custody of the two daughters awarded to appellant subject to access provisions; Kerwin C.J. and Locke J. dissenting
Legal Topics
Undertaking to Court, Variation of Custody Order, Parental Custody Agreement, Best Interests of the Child
Source Language
English
Family Law Child Custody Divorce Undertaking to Court Variation of Custody Order Parental Custody Agreement Best Interests of the Child

Case Brief

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Parties

Vera Leona Kruger

Defendant/appellant

Ernest William Booker

Plaintiff/respondent

Procedural Posture

Divorce and Custody / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario

Legal Issues

  1. 1 Whether a parent’s breach of an undertaking to discontinue association with a third party justified changing custody
  2. 2 Whether a subsequent written agreement between parents as to custody is effective while a court custody order remains in effect
  3. 3 What weight the court must give to the welfare of the children versus parental agreements

Ratio Decidendi

Majority held the November 6, 1958 parental agreement — entered into with the father’s full knowledge of the breach and the impending remarriage — was valid and should be given effect absent proof of a substantial change of circumstances affecting the children’s welfare; the evidence did not show a change sufficient to justify taking the daughters from their mother, so custody as agreed remained in the children’s best interests.

Court Disposition

Appeal allowed (majority); custody of the two daughters awarded to appellant subject to access provisions; Kerwin C.J. and Locke J. dissenting

Orders

  • Set aside judgments below except as to custody of the eldest child
  • Award sole custody and control of Susan Claire Booker and Jennifer Lynn Booker to appellant Vera Leona Kruger until further order