The “All Smiles Stopped Together” Edition: Was that the Moment When Everything Changed?

ORIGINALLY PUBLISHED OCTOBER 6, 2019 AS A PAGE

The name of my blog, “the Mind Wanders,” uses a well-worn phrase that imagines thought as something that can move through time and space.  I suppose neurophysically, thinking is the actual movement of or change in cells or synapses or something mysterious, but we contemplated the idea of a ‘wandering mind’ before we mapped out nervous systems.

Matthew A. Killingsworth and Daniel T. Gilbert developed a smartphone app to “sample people’s ongoing thoughts and feelings” in real time, “experience sampling,” concluding that a wandering mind is an unhappy mind.

We have colloquial phrases that locate the the origin of thoughts and feelings in a specific moment in time.  For infatuation, the cliche is to pinpoint that moment in time, when our eyes met across that crowded room and I remember the first time ever I saw your face, that dance when I became Crazy For You, or The Night I Fell In Love.  It is your love-at-first-sight-Act-1-Scene-5 moment, when Romeo spies Juliet: “Did my heart love till now? Forswear it, sight!/For I ne’er saw true beauty till this night.”

Elizabeth Bennett tells her sister that her love for Darcy came on “so gradually, that I hardly know when it began,” but she teases quite practically that it was the day his wealth was most obvious, “I must date it from my first seeing his beautiful grounds at Pemberley.”

And falling out of love?  Is it gradual, incremental, or more curiously, can you identify with precision the moment your heart broke and love ended?  Poor Ralph Wiggum can:

It now occurs to me (duh!) that so much of legal resolution requires identifying an exact moment in time. Justice uses calculators, to assess the time period to add up lost earnings since the day of the accident, since the afternoon when your job was terminated, since you were locked in a cell as someone wrongly incarcerated, since you lost sales when the contract was broken.

Then there’s the challenge of seeking justice when the harm has occurred over time, incremental damage and systemic damage of, say, hearing racist insults or sexist jokes or endless political promises to get to that most important issue.

We rarely know what day the situation became intolerable, yet we have to prove that it did.

In other instances, we agree on calendar fiction. One ground of divorce is that couples have lived “separate and apart” for a year, so we clumsily identify the day when the separation occurred, as if falling out of love can be pinpointed and captured on video, like Ralph’s heartbreak.

duke-and-duchessRobert Browning’s Duke was, in his view, unreasonably pushed to end his love, by too many pesky, annoying, jealousy-inspiring acts of his wife, the Duchess, who let him down by being joyful:

She had
A heart—how shall I say?— too soon made glad,
Too easily impressed; she liked whate’er
She looked on, and her looks went everywhere.
But the incrementalism met with a fixed moment in time, when he ended the marriage somewhat Henry VIII style
I gave commands;
Then all smiles stopped together.

The Duchess might have appreciated a little notice, that “One of these days these boots are gonna walk all over you,” but I expect seeing it coming would not have helped.  He Stopped Loving Her Today.  So too did the Duchess stop loving the Duke.  She was dead.

I mentally stumbled upon the case of Miss Sadie Chertkow, an American who immigrated to my hometown of Lethbridge, Alberta, as a child, around the turn of the 19th century (1929 CanLII 513 (AB CA)).

Sadie met Tony Feinstein in Winnipeg in March 1920. Tony immigrated to Winnipeg in 1913. Both were “of the Jewish faith.” When Sadie met Tony, she was isolated in Winnipeg, far from family and with few friends. Sadie and Tony were engaged in May 1920 and married a few months later. The bride was 20 and the groom was 25.

Together, Tony and Sadie operated clothing stores, moving from Winnipeg to Drumheller, Alberta, now dinosaur capital of the world, and then after 3 years, to Calgary. In Drumheller, Feinstein prospered and was worth about $10,000 when he left in 1924.  That’s just under $150,000 now.

[Drumheller: Americanized spelling of German Trum(pf)heller, an occupational name for a drummer. Trump. Hell. Er…..]

Sadie and Tony had a daughter; prior to that, Sadie had had a miscarriage. After 5 years of marriage, on November 11, 1925, Tony left her. Sadie hired lawyers to make a claim on their clothing store business and they reached an out-of-court settlement. Tony agreed to give Sadie “the furniture in their apartment” and $7,250, conditional on a Jewish bill of divorce. She had no “support” in the conventional sense; she agreed to “maintain and educate” their child.

Two years after Tony left, in October 1927, Sadie was committed to the “hospital for the insane” in Ponoka, Alberta.  ponoka

In 1928, Tony brought a motion before the Court to have Sadie declared “insane” at the time of the marriage, thus rendering the marriage null and void, and he sought custody of their child. Because Sadie was a “lunatic,” she had to have someone represent her in Court for the litigation.  I expect that Tony wanted to remarry.

At trial, Judge Ives declared the marriage null and void, in Tony’s favour, finding that Sadie was indeed “insane” at the time of the ceremony.  Under the law, nullity is like the marriage never happened. Sadie appealed.

This is such an interesting case, grappling as it does with what moments in time are legally significant. Sadie was assessed to be mentally ill a couple of years after the marriage ended. The Court was asked to determine what her mental state was on the day of the marriage, going back in time to when the marriage occurred.

A marriage is, after all, one of the more important contracts a person is likely to enter, and I would hazard to guess that a vast majority of them are entered into without legal advice (call me?). The basis of a contract is that the parties agree to the terms of the deal, and have “A capacity to understand the nature of the contract, and the duties and responsibilities which it creates.” So says the Court in 1929, citing an earlier 1885 case:

I may say this much in the outset, that it appears to me that the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend: It is an engagement between a man and woman to live together, and love one another as husband and wife, to the exclusion of all others. This is expanded in the promises of the marriage ceremony by words having reference to the natural relations which spring from that engagement, such as protection on the part of the man, and submission on the part of the woman. (emphasis added)

One hopes that the “duties and responsibilities” of the marriage contract have evolved since then.  The case notes that a child of 12 could comprehend the terms of a marriage contract.

And so, was Sadie’s mental health such that she could understand the marriage contract she entered into?

Expert testimony was provided to the Trial Judge. The Appellate Court notes that the Sadie’s “insanity” was “what is known as ‘dementia praecox,’ which the dictionary calls ‘adolescent dementia’ and which the experts say is liable to develop in a person of the mental characteristics present in the case of the defendant and very commonly manifests itself between puberty and 25 years of age.”

In other words, “precocious madness,” now schizophrenia.  The Court lists the examples of Sadie’s insanity. By the way, I share many of these traits, except perhaps the cousin bit.

  • She had no friends who would be her bridesmaid; a “perfect stranger” was called to fill in.
  • She was always “somewhat peculiar. She was what the experts call an introvert, one whose mind has a tendency to look inward and dwell on the within rather than the without”
  • She told someone she didn’t love her husband, but “might like like him better after she married him.”
  •  She was in love with a cousin, who her father would not let her marriage, so she “may as well go through with it” and marry Tony.

On the day of her wedding, the bride expressed to others that she had reservations about proceeding with the marriage. At about 3:30 on the afternoon of the wedding, she was “crying or silent and moody and apparently taking little or no interest and not going on with her preparations as she was expected to do.”  The bridesmaid testified that Sadie was “crying and sobbing and blowing her nose,” and “didn’t want to get married” and would, if she could, “jump out a window.”

The ceremony went ahead. And so, was Sadie “mad” at the time of her vows?

No fewer than 7 medical experts provided evidence a trial, “two ordinary physicians and five highly qualified alienists” (psychiatrists). One said she had “tantrums and spells,” the history of which were (conveniently?) provided by her husband.  The doctor advised Sadie it would be “beneficial” to have a child, but did not think she was “mentally unsound.”

Sadie’s experts opined that she was not mentally unsound on her wedding day, but became so long after. However, even their observations about her mental state on the wedding day is far from reassuring, her distress ironically proving her sanity:

She was disturbed and upset, no doubt, and in great distress but as Dr. Hepburn points out that is evidence that she did, rather than that she did not, understand what the loveless marriage meant.

She weighed her options, and decided to “see it through.” The actions of a “sane” woman, but one imagines a woman with few alternatives that afternoon.

How very sad.

Two practitioners “gave it as their opinion that the defendant [Sadie] became insane at 3:30 p.m. on her wedding day, the presumption being that she continued so mentally deranged until after the marriage ceremony.” Their evidence convinced the Trial Judge to rule in Tony’s favour.

For Sadie, the Court of Appeal rejects the Trial Judge’s analysis. It favoured the evidence of other witnesses, and concluded that Sadie was “sound in mind, though peculiar, and as some said ‘cranky.’”

Peculiar?  Cranky?

The Court of Appeal has sympathy for Tony, who is “doomed to live without a mate” because Sadie was hospitalized, but noted that it was for Parliament and not the Court to remedy.  Tony is bound by his contract, to take her “for better or worse.”

The Court of Appeal seems to doubt Tony’s motivations and might be suggesting that the allegation of insanity is one of convenience rather than evidence:

it must seem, to the layman at least, almost incredible that a man could court a woman, marry her, live with her for more than five years, during which she assisted him in the conduct of his business, have a child by her and not till after that find that she was actually insane when he married her. It is plain that the evidence must be of a very clear and definite character to establish such a conclusion.

The Court also notes that to “bastardize an innocent child for the benefit of the father who had been instrumental in bringing it into the world could have little to be said in its favour.”

And so, Sadie succeeds: she continues to be married, her child continues to be legitimate. What difference this made to her is not clear.  Cold comfort, indeed.  She was clearly distraught on the day of her vows, but not so upset as to be incapable of making a bad decision, and the only decision that was realistically available.  After years of marriage, Tony, you bet you can’t argue that you used my labour and body, only to take my traumatic state of mental health now and retroactively apply it to then.

Tony appealed to the Supreme Court of Canada, unsuccessfully.

And so, Sadie, what is the right moment in time for us to assess you?  I think, perhaps, your heart was never made glad, whether sooner or otherwise, and at 3:30 in the afternoon of your wedding day, you weren’t insane, but trapped by practicality, hope, and loneliness.

I’m barbara@darbylegal.cawww.darbylegal.ca.  Thanks for reading.

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