February 26, 1925


Mr. JOS. T. SHAW (West Calgary) moved the second reading of Bill No. 4, respecting divorce. He said: I had the opportunity and the privilege last year of presenting to the House a resolution incorporating the provisions of this bill. The resolution was not disposed of by the House. Subsequently I introduced a bill founded on the resolution; that, however, was not disposed of either, and I now take the earliest opportunity of presenting for the consideration of the House this year a bill designed to establish equality as between husband and wife so far as the grounds for divorce are concerned. In order that the situation may be properly appreciated let me sketch very briefly something of the history of divorce in Canada. By our federation act of 1857 the subject of divorce was assigned exclusively to the federal parliament. There was another provision in the British North America Act by which the laws in force and the courts in operation in each of the confederating provinces were to continue in force and operation until such time as they were repealed or altered by competent authority. There was a further provision by which upon the expected application of further provinces to join in the union the same provision should apply, namely, that their laws and their courts should be continued until similarly repealed or altered. Now, having these provisions in mind, I want to sketch the situation as it existed at confederation. Previous to 1867 Ontario and Quebec had no divorce courts. Consequently as to divorce these provisions that I have mentioned had no application to these two provinces. I should say also that the Dominion government has never in any case passed any general divorce law, and the result is that Ontario and Quebec in divorce matters stand exactly in the position they were in prior to confederation. The provinces of Nova Scotia and New Brunswick each had divorce courts prior to 1867. These courts granted divorce to men and women on equal grounds; that is the grounds open to the husband were likewise open to the wife; there was no distinction as between the sexes. The grounds in the province of New Brunswick were adultery, impotence and consanguinity. To these three grounds which prevailed in the province of New Brunswick there was a fourth added in Nova Scotia, namely the ground of cruelty; and so the situation is that tihe divorce laws of Nova Scotia and New Brunswick which were passed prior to confederation still persist to this day, and both sexes are on a basis of absolute equality. The first province to join confederation, was the province of Manitoba in the year 1870. Prior to its incorporation, the district of Assiniboia, of which it formed a part, had passed an ordinance that the laws of England as they existed in the year 1870 should be applicable in that area, and so the result was that when Manitoba joined confederation in 1870, the laws of England as they existed in 1870, including, of course, the law with resp.ct to divorce, applied in that province. The province of British Columbia joined confederation in 1871. but previous to joining confederation the then colony of British Columbia had adopted the English law as it stood in 1858; so it entered the union preserving the law of England on divorce as of the year 1858. The province of Prince Edward Island joined confederation in 1873, but previous to confederation it also had a court operating in divorce matters, and that court has been preserved, although I think but seldom used. The provinces of Saskatchewan and Alberta, which joined confederation in 1905, had taken the law of Engjland as it stood in the year 1870. And so, shortly, the result is this: that to-day the provinces of Ontario and Quebec have no divorce courts, while Nova Scotia, New Brunswick and Prince Edward Island have each divorce courts, before all of which men and women stand exactly upon equal



uivorce ground; that is, the husband can secure divorce on the ground of adultery alone, and similarly with the wife. The four western provinces take the law of England so far as divorce matters are concerned for all practical purposes as it existed in the year 1870, because there was no substantial alteration of the English divorce law between the year 1858 and the year 1870. So, for the purposes of my argument I say that the divorce law of England as it existed in the year 1870 applies to the four western provinces. Now what is this English law which is applicable in the four western provinces? May I just put it shortly by stating that whereas the husband can secure a divorce on the ground of adultery alone, the wife must prove something further; she must prove not only adultery, but in addition either one of two things, cruelty, or desertion without reasonable excuse for a period of two years. That is exactly the situation that exists in the province of Alberta to-day. There are other grounds for divorce which are not necessary to this discussion, and to which I shall not refer, but which are included in the British Matrimonial Causes Act of 1857. I trust I have made that clear; that whereas the husband has a right to divorce upon proving adultery alone, the wife in the four western provinces must prove something additional, either cruelty, or desertion for a period of two years without reasonable excuse. Now that is a considerable burden to place upon the wife in any event; and when we come to the interpretation of these words, cruelty and desertion, we find that they are probably more difficult of proof than perhaps most of us appreciate. Cruelty in the ordinary sense of the term we understand, but legal cruelty is something entirely different. The definition of it has come to us from an English court decision given in the year 1790. Let me give in the words of the Ontario appeal court the definition of cruelty: To establish cruelty one must show treatment likely to produce or which produces physical illness or mental distress of a nature calculated permanently to affect her bodily health or endanger her reason, and that there is reasonable apprehension that the same state of things will continue. That is the definition of legal cruelty. That is what the wife in any of the four western provinces of Canada must prove in addition to adultery before she can secure a divorce from the courts in those jurisdictions. One of our Ontario court judges, referring to that definition of cruelty, which he adopted for the purpose of his decision, used these words: The law is not in accord with modern views as to the relations between husband and wife. That it is iMr. Shaw. such is to be deplored. Her life may be made a veritable hell upon earth and she is without remedy if robust enough to suffer it all without impairment of her physical health or her mentality. In Alberta, the chief justice of the appellate court of that province in a decision used these words: It has been accepted in England that legal cruelty to support a wife's claim must be such as to cause danger to life, limb or health, present or future. There may be much room for dissatisfaction, but that is a matter which can be easily and effectively cured by the legislature if it desires.


CON

Charles-Philippe Beaubien

Conservative (1867-1942)

Mr. BEAUBIEN:

Must cruelty be established by the wife in any other parts of the Dominion than the four western provinces?

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
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LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

No. Then we come to the

other ground. Suppose that the wife, instead of relying upon adultery and cruelty, (is forced to rely upon a combination of adultery and desertion. We find that great difficulties are imposed upon her there, because she must prove desertion for a period of two years, and she must prove that it is without reasonable excuse.

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
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PRO

Robert Forke

Progressive

Mr. FORKE:

Would the hon. member

state what are the grounds for divorce in Ontario and Quebec?

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
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LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

Ontario and Quebec have no divorce courts. The applicant for divorce in those two provinces must come to the Parliament of Canada for relief, and the Parliament of Canada is, of course, empowered to grant relief on any terms that it sees fit. It undoubtedly grants relief to the parties, either husband or wife, on terms of equality. Divorce has been granted by parliament on the ground-

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
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CON

John Babington Macaulay Baxter

Conservative (1867-1942)

Mr. BAXTER:

I rise to a point of order. I do so in the hope that it will be beneficial to some of us. We would like to hear what I have no doubt is a very instructive address, but owing to the disorder prevailing in the chamber we are unable to follow the hon. gentleman's remarks.

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
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LIB

Hewitt Bostock (Speaker of the Senate)

Liberal

Mr. SPEAKER:

It is, possibly, an exaggeration to use the term "disorder", but there is undoubtedly a great deal of conversation going on. I would ask hon. gentlemen on both sides to kindly listen, and to refrain from conversation. If that is done the hon. member who has the floor will be heard with ease.

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
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LIB

Harold Putnam

Liberal

Mr. PUTNAM:

I understood from the hon. gentleman that in Ontario and Quebec the tribunals have practically unlimited power to grant divorce. How far would the hon. gentleman qualify, if at all, my interpretation of the situation?

Divorce

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
Permalink
LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

I have already stated that there are no divorce courts operating in the provinces of Ontario and Quebec.

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
Permalink
LIB

Harold Putnam

Liberal

Mr. PUTNAM:

No, but there are grounds for granting divorce.

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
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LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

What is the use of there being grounds for divorce if there are no courts to give effect to the grounds. In the case of these two provinces, as I understand it, the only way an applicant for divorce can secure relief is by coming to the federal parliament and presenting his or her case. Now, as a result of the decisions of the Senate from time to time I think it is fair to state that parliament grants divorces on terms of equality as far as the sexes are concerned. The Parliament of Canada is supreme. It can grant a divorce upon any ground it sees fit, but in actual practice divorce is granted on the ground of adultery, nonconsummation, and various other grounds which are immaterial to my argument at the moment.

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
Permalink
IND

William Findlay Maclean

Independent Conservative

Mr. MACLEAN (York):

How much does it cost to get relief from the federal parliament in the way my hon. friend has indicated?

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
Permalink
LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

If my hon. friend will permit me to go on I shall come to the point in a moment.

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
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PRO

Robert Alexander Hoey

Progressive

Mr. HOEY:

In the case of a petitioner for divorce living in the western provinces has he or she the right to petition the Dominion parliament?

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
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LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

Yes, the Parliament of Canada is available to people throughout Canada, regardless of what province they may reside in.

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
Permalink
LIB

Harold Putnam

Liberal

Mr. PUTNAM:

If my hon. friend will excuse me, and purely for information, is it true that the divorce committee of the Senate has unlimited discretion in granting a divorce in any case in which the marriage proves to be a hardship-for instance in a case where incompatibility of temperament is shown?

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
Permalink
LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

Well, no committee of the Senate has any jurisdiction in the matter at all. As I understand it, the Senate committee hears the evidence and recommends action to the upper house. Even action by the Senate is not adequate unless it is approved by this House.

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
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LIB

Harold Putnam

Liberal

Mr. PUTNAM:

That is technical.

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
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LAB

Joseph Tweed Shaw

Labour

Mr. SHAW:

The Parliament of Canada,

composed of the House of Commons and the Senate, puts through every divorce bill. It

can grant divorce on any ground, so far as I am aware, that it sees fit.

Now, when interrupted by this series of questions, I was about to deal with the subject of desertion, the other ground upon which the wife might secure divorce if it were coupled with adultery. As I pointed out, in that event the wife must prove desertion for a period of two years and without reasonable excuse. The term "without reasonable excuse" allows, as one can easily see, a very wide latitude within which an erring husband can readily escape from the consequences of his conduct.

The purpose of this bill is to remedy these inequalities. It is to put the wife in the four western provinces before the courts of those provinces on exactly the same basis as the husband. And why should it not be so? After all, is not adultery the great cardinal sin against the marriage relationship? Is it not the primary offence which impairs the stability of the home, and is it not the one great offence which interferes with domestic happiness? Therefore, if such relief is granted to the husband, why should i.t not be equally secured to the wife?

Topic:   QUESTIONS
Subtopic:   DIVORCE
Sub-subtopic:   EQUALITY OF GROUNDS FOR RELIEF AS BETWEEN THE SEXF.S
Permalink

February 26, 1925