McLennan v. McLennan

McLennan v. McLennan

The paragraph of the plaintiff's reply alleging the husband's bad character was properly struck out as scandalous and irrelevant because such allegations do not excuse refusal to perform the conditional terms of the separation agreement; custody or deprivation of the father's access can only be accomplished by an appropriate order under the Custody of Infants Act and cannot be claimed collaterally in this action for unpaid instalments.

Citation
[1925] SCR 279
Parties
Plaintiff Appellant: Grace Tytus McLennan; Defendant Respondent: John S. McLennan
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
10 March 1925
Procedural Posture
Appeal / Supreme Court of Canada Decision on Appeal
Outcome
Appeal dismissed with costs
Legal Topics
Separation Agreement, Custody and Access, Scandalous Pleadings, Condition Precedent, Excuse for Breach
Source Language
English
Family Law Contract Law Civil Procedure Separation Agreement Custody and Access Scandalous Pleadings Condition Precedent Excuse for Breach

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Parties

Grace Tytus McLennan

Plaintiff Appellant

John S. McLennan

Defendant Respondent

Procedural Posture

Appeal / Supreme Court of Canada Decision on Appeal

Legal Issues

  1. 1 Whether allegations of the husband's bad character excuse the wife's non‑performance of conditions in a separation agreement
  2. 2 Whether a paragraph of a reply pleading scandalous allegations is properly struck out as irrelevant and vexatious
  3. 3 Whether custody or access issues can be raised collaterally in an action for unpaid instalments or require a separate statutory custody proceeding

Ratio Decidendi

The paragraph of the plaintiff's reply alleging the husband's bad character was properly struck out as scandalous and irrelevant because such allegations do not excuse refusal to perform the conditional terms of the separation agreement; custody or deprivation of the father's access can only be accomplished by an appropriate order under the Custody of Infants Act and cannot be claimed collaterally in this action for unpaid instalments.

Court Disposition

Appeal dismissed with costs

Orders

  • Paragraph 3 of the plaintiff's reply struck out as scandalous and irrelevant
  • Appeal dismissed with costs; execution to be limited corresponding to the judgment of the court below