December 13, 1962

PC

Rémi Paul (Deputy Chair of Committees of the Whole)

Progressive Conservative

The Deputy Chairman:

Order. I would ask the hon. member, when the Chair rises to its feet, please to sit down. I would ask the hon. member for Timiskaming to withdraw the last part of his remarks about the members of the Senate. I think that those remarks are out of order, and I am sure that if he refers to standing order 35 he will agree to withdraw them.

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NDP

William Arnold Peters

New Democratic Party

Mr. Peters:

Mr. Chairman, I withdraw any reflection on them as individuals, but I think you would have to adjudicate upon the charges I have made in this case if you were to ask me to withdraw anything more than that. If it is only as to disrespect implied to individuals, then I am quite happy to withdraw that.

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PC

Robert Jardine McCleave (Parliamentary Secretary to the Minister of Public Works)

Progressive Conservative

Mr. McCleave:

Speaking on the point of order, Mr. Chairman, may I say that rule 35 clearly states as follows:

-nor use offensive words against either house, or against any member thereof.

Hence the partial retraction is not complete enough. The retraction must be of the offensive words used against the Senate as well. That point is clearly spelled out in this rule.

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?

An hon. Member:

This is getting ridiculous.

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CCF

Thomas Speakman Barnett

Co-operative Commonwealth Federation (C.C.F.)

Mr. Barnett:

I am sure these remarks were never intended to mean that members of this house could not assess the worth or otherwise of the work that is done by this house from time to time or for that matter by the other place. I feel that the hon. member is really stretching that matter to ridiculous extremes if he is trying to imply that the hon. member for Timiskaming has cast a reflection upon other members of this house or of the other place as individuals.

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?

An hon. Member:

Did you hear him talking?

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CCF

Thomas Speakman Barnett

Co-operative Commonwealth Federation (C.C.F.)

Mr. Barnett:

Yes, I heard him.

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PC

Gordon Harvey Aiken

Progressive Conservative

Mr. Aiken:

May I ask the hon. member a question for the purpose of clarification of my own mind? He read an affidavit which I understood him to say was not anywhere in the evidence which has previously appeared. Is this correct? Is the affidavit he read today something new or was it in the original evidence?

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NDP

William Arnold Peters

New Democratic Party

Mr. Peters:

No. Unfortunately the part of the evidence we have before us usually is only the printed report of the committee of the other place. This is the complete file or the complete document. This was dated May 4, 1961. This was before the other place. The second document from which I read, and which I think certainly has been open to question, because of the commissioner who signed it being the secretary of the lawyer concerned for the plaintiff, was before the other place and it was signed on June 13, 1961. No new evidence has been adduced, no evidence that was not already presented in the original hearing.

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PC

Gordon Harvey Aiken

Progressive Conservative

Mr. Aiken:

If I may, presuming that the hon. member has finished, I should like to say a few words on this subject as a member of the private bills committee. Some criticism of the committee has been expressed. I am a member of that committee and I attended the sittings in which this particular divorce matter was considered. The reason I am saying this is that at that time there was present a member of the party to which the hon. member for Timiskaming belongs. At that time I particularly asked if any of the 27507-3-167

Divorce Bills

cases before us had attached to them any question of credibility. From time to time there have been raised cases such as those raised today, in which there has been some question about the reliability of evidence and the propriety of the proceedings. This question was particularly asked at that time and I was assured-and no one said otherwise-that with regard to none of the group of cases that were considered that day had any question ever been raised. Therefore the group of bills was put through.

While I am inclined to agree that, if the circumstances which have been stated are correct, perhaps there should have been second consideration of this bill, I feel that it is extremely unfortunate that the matter was not raised then, before the private bills committee. This evidence which the hon. member has produced was not before the private bills committee. It was the file that was before the Senate. I feel that it is now rather late. I do not know just what action we should take. If these statements are true, then perhaps the matter should be reconsidered.

In connection with the question of domicile, may I say that the hon. member for Timiskaming has made the matter sound terribly simple. As all of those trained in the law know very well, questions of domicile are not simple, particularly when a person has been born in Poland, resides for some time in Canada and then moves to the United States. I say that the matter is not as simple as he has stated it to be. It is an extremely complicated matter when a person has moved about and has stayed for some time in one place and another. I say that the question of domicile is one which certainly is not as simple as black and white or yes and no. If the hon. senators in the other place had all these facts before them, I believe they must have come to the conclusion that the question of domicile has been satisfactorily answered, and perhaps even without the second affidavit they would have been satisfied with the evidence that this person was actually domiciled in Canada. At this particular point in the proceedings I do not feel that we should go back, as it is not an open and shut case. It is something that has happened. Unfortunately, it was not considered in the private bills committee for the simple reason that it was never raised.

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LIB

John Ross Matheson

Liberal

Mr. Matheson:

May I ask the hon. member a question?

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PC

Gordon Harvey Aiken

Progressive Conservative

Mr. Aiken:

May I first finish my remarks?

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LIB
PC

Gordon Harvey Aiken

Progressive Conservative

Mr. Aiken:

Even if the matter had been raised there, I doubt very much that the

Divorce Bills

committee would go back and reconsider the question of domicile, unless there was a fairly definite indication that something was wrong. Here was a case in which the domicile could very well have been in Canada and probably was in Canada. However, without going into a complete retrial of the matter I think we should accept the decision which was made in the other place.

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LIB

John Ross Matheson

Liberal

Mr. Matheson:

May I ask my hon. friend whether he would agree that if, in fact, there is no domicile in the province of Quebec in this particular instance, then the bill has no legal validity; that is to say, it is not entitled to international recognition and, in the event of these people subsequently marrying, any issue of these marriages would be deemed, by the rules of private international law, illegitimate? Am I not correct?

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PC

Gordon Harvey Aiken

Progressive Conservative

Mr. Aiken:

This is a complicated hypothetical question, Mr. Chairman. What I say is this. If this parliament grants a divorce bill in Canada, it is completely effective in Canada; and I think we cannot consider too much about what will happen in other countries. That is the affair of the parties to the divorce.

I answer the hon. member in that way.

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PC

J. Nicholas (Nick) Mandziuk

Progressive Conservative

Mr. Mandziuk:

I wish to be fair to the hon. member for Timiskaming as well as to the other hon. members of this House of Commons. If the evidence is such that the matter should be referred back to the miscellaneous private bills committee I, who have the honour to be the chairman of that committee, would consent to a transfer of it there. However, I wish to state this. There are 901 divorce cases. Most of them have gone through the other place. Some must be heard. If anyone in this house or in this country expects the members of the miscellaneous private bills committee to read every file of evidence from the other place, then I will be the first one to resign and get off that committee, as it is an impossibility. We carried on the practice which has been carried on for years. There are cases in which the committee, this house and the other place have been misled. These things have happened in our courts. We had a recent case in Toronto where a decree absolute was granted and yet application was made for annulment, it was proved that the divorce was granted on perjured evidence, and the divorce was annulled.

We wish to do the right and the fair thing. I have a great deal of respect for the Senate divorce committee. Those people put in a great deal of time. I have sat in on several of their hearings and I can assure you, Mr. Chairman, that the chairman and the members of the committee spend more time in trying to dig into evidence and in examining

witnesses than do some of our judges in our superior courts to whom a petition is made for divorce. I have a lot of respect for their judgment, and if the odd case slips through in which there is some irregularity I do not think it is the fault of the other place or the fault of the miscellaneous private bills committee of this house. As a matter of fact, there are three members of the party to which the hon. member for Timiskaming belongs who are members of the miscellaneous private bills committee. One of them was present, and I only regret that he did not bring up this matter, if it had been drawn to his attention. I would agree to have this bill sent back to the miscellaneous private bills committee for further study if we can proceed with others and not waste any more time.

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NDP

Barry Mather

New Democratic Party

Mr. Mather:

Mr. Chairman, as one of the representatives of our party on the miscellaneous private bills committee I want to say that in my opinion what we have heard in the last hour simply underlines the long held contention of certain members of our party, which is basically that the members of the private bills committees of the other place and of this house lack the energy, the technical ability and the time to deal with these cases properly. The reason that members of this party on that committee did not raise this issue in the committee is that we lacked the energy and ability at the time, and we have no confidence in that committee or in the other place with respect to dealing with these bills. I think what has just been drawn to our attention ably illustrates the correctness of our position.

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PC

Wallace Bickford (Wally) Nesbitt (Parliamentary Secretary to the Minister of Trade and Commerce)

Progressive Conservative

Mr. Nesbiii:

Mr. Chairman, there is one thing that I think some hon. members have perhaps forgotten, or to which they have perhaps not paid full attention. Under the British North America Act this parliament has the power to pass any act it wishes for which authority is given under that act. The fact of the matter is that the committees of the other place and this house have normally followed certain rules regarding divorce, namely that the ground must be adultery, but I would point out that this is only a matter of custom. They have the power to grant a divorce for any reason whatsoever.

The second point has to do with the question of domicile raised by the hon. member for Timiskaming. This is not a question of fact or law alone but a question of mixed law and fact. It is not the duty of this house or, indeed, of the other place, to start deciding questions of law but rather to decide questions of fact, and domicile is always a mixture of the two. In any event, parliament can grant divorce for any reason

it likes. Because of the normal custom of granting divorce for one reason only I think the point I have made may have been overlooked.

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NDP

Reid Scott

New Democratic Party

Mr. Scoli:

Mr. Chairman, I should like to make a few comments on the bill and in so doing I should like to preface them by saying that I hope anything I say will not be construed as being disrespectful to members of the house or the committee, or members of the other place. But, Mr. Chairman, when as a member of the bar of Ontario I take a look at this bill it is really shocking to see how these matters are handled.

I agree completely with the hon. member who just spoke, that once we get into the question of divorce it does not really matter what grounds are used. He is quite correct. Within our legislative jurisdiction we can grant a divorce on any ground we like to anybody in Canada. But the hon. member had better not publicize this fact too widely or we will have thousands of these cases from every part of Canada in the next session. Many more people from all over the country will be coming to us for divorces, and if hon. members think we are tied up now, just wait a year or two and we will be dealing with nothing but divorce.

I should like to comment also on the remarks of the chairman of the committee, with which I wholly concur, when he says it is an absolute impossibility for his committee, no matter how hard working its members are, no matter how sincere they are, no matter how desirous they are of doing a good job, to deal with these bills adequately. I could not agree more. Indeed, Mr. Chairman, that is the whole point we are trying to make, and what has happened in the house this afternoon points up the absurdity of us as members of the House of Commons trying to go into matters of this kind. This is the whole purpose of our party raising this issue in the way we have. We have no desire at all to prevent people getting divorces. As far as I am concerned, I will vote for all of them as they go through. But what we are trying to point out to the house and to the country at large is the absolutely ridiculous position in which we as members of the House of Commons are placed.

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December 13, 1962