Boykowych and Gadziala v. Boykowych

Boykowych and Gadziala v. Boykowych

The Court held that (1) adultery in divorce proceedings under the Ontario Divorce Act is to be proven on a preponderance of the evidence (civil standard); (2) alleged admissions by the wife were admissible against her and could be admissible against the co-respondent for limited res gestae/circumstantial purposes but the co-respondent’s failure to object at trial barred appellate complaint; and (3) on the whole record no substantial wrong or miscarriage of justice occurred, so the appeals are dismissed and the trial judgment (divorce and $2,500 damages) stands.

Citation
[1955] SCR 151
Parties
Appellant (defendant Wife): Magda Boykowych; Appellant (defendant Co Respondent): Albert Gadziala; Respondent (plaintiff): Michael Boykowych
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
25 January 1955
Procedural Posture
Divorce With Joined Claims for Alienation of Affections and Criminal Conversation / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario (judgment Nisi Made Absolute Below)
Outcome
Appeals dismissed with costs; judgment of Court of Appeal affirmed; divorce granted and damages upheld
Legal Topics
Adultery, Standard of Proof, Admissions and Hearsay, Res Gestae, Criminal Conversation, Alienation of Affections, Jury Directions, Waiver by Failure to Object
Source Language
English
Family Law Evidence Civil Procedure Adultery Standard of Proof Admissions and Hearsay Res Gestae Criminal Conversation +3 more

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Parties

Magda Boykowych

Appellant (defendant Wife)

Albert Gadziala

Appellant (defendant Co Respondent)

Michael Boykowych

Respondent (plaintiff)

Procedural Posture

Divorce With Joined Claims for Alienation of Affections and Criminal Conversation / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario (judgment Nisi Made Absolute Below)

Legal Issues

  1. 1 What standard of proof is required to establish adultery under the Ontario Divorce Act where legitimacy is not in issue?
  2. 2 Whether extrajudicial admissions by the wife are admissible against the co-respondent and, if so, for what purpose
  3. 3 Whether the trial judge’s jury charge on burden of proof and on the effect of the wife’s alleged admissions was adequate

Ratio Decidendi

The Court held that (1) adultery in divorce proceedings under the Ontario Divorce Act is to be proven on a preponderance of the evidence (civil standard); (2) alleged admissions by the wife were admissible against her and could be admissible against the co-respondent for limited res gestae/circumstantial purposes but the co-respondent’s failure to object at trial barred appellate complaint; and (3) on the whole record no substantial wrong or miscarriage of justice occurred, so the appeals are dismissed and the trial judgment (divorce and $2,500 damages) stands.

Court Disposition

Appeals dismissed with costs; judgment of Court of Appeal affirmed; divorce granted and damages upheld

Orders

  • Appeals dismissed with costs
  • Judgment of the Court of Appeal affirmed