Unlawful Interference with Another’s Relationship - (Tort of:)

Curle v. Lowe, 2004 CanLII 22947 (ON SC)

[1] This is a Rule 21.01(1)(b) motion for summary judgment to dismiss the claim on the grounds it discloses no reasonable cause of action. The plaintiff’s claim is pleaded in tort, specifically deceit, intentional interference, unjust enrichment, and breach of statutory duty. Mr. Curle seeks damages for past and future anguish in connection with the relocation of his child by the mother to her current residence in southern Ontario. He also claims for loss of the “solace, society, companionship and services of the child” alleged to have been caused by the defendants.

[9] The defendants also cite the case of Sturkenboom v. Davies [1996] A.J. No. 911, a decision of the Alberta Court of Appeal. In that case, a mother moved the children of her former common law partner from Alberta to Britain without notice to the father. Mr. Sturkenboom had consented to the mother having custody. He sued the wife’s father in Alberta for conspiracy, interference with a parent-child relationship, fraudulent and negligent misrepresentation, and intentional infliction of mental suffering. That action was struck. The court applied Frame v. Smith, holding, at par. 23 that:

“…The tort of interference with the parent/child relationship, in any of its forms, including those of harbouring and enticing the child, is not available in the circumstances of a domestic dispute involving issues of custody and access to children, either in an action against the parent or in an action against members of the parent’s family or friends who assist the parent.”

[10] Finally, the Supreme Court of Canada in The Queen in Right of Canada v. Saskatchewan Wheat Pool (1983) 1983 CanLII 21 (SCC), 143 D.L.R. (3d) 9 ruled that a civil action cannot be maintained for breach of a statutory duty unless the statute specifically provides for such an action.