January 22, 1963

LIB
PC

Gordon Campbell Chown (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Progressive Conservative

The Chairman:

The time of the hon. member has expired. The committee would have to give unanimous consent. Is it agreed?

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?

Some hon. Members:

Agreed.

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LIB

James Allen (Jim) Byrne

Liberal

Mr. Byrne:

I am wondering if the hon. member could tell the house just what federal statute this pre-marital contract appears to violate. I have never heard of any actual federal statute which provides for the dissolution of marriage.

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NDP

William Arnold Peters

New Democratic Party

Mr. Peters:

The law which it stems from is to be found in volume 23 of the United Kingdom statutes, 1857 Victoria, which act was established to amend the law relating to divorce and matrimonial causes in England. This law applied to Canada through confederation under the British North America Act, under which act sole power was given to the federal government in matters of matrimony and divorce.

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NDP

Reid Scott

New Democratic Party

Mr. Scott:

Mr. Chairman, I should like to take a position directly opposed to that of the hon. member for Timiskaming and to urge the committee to disregard almost everything he said, and as a consequence of that unanimously to pass the bill and grant

Divorce Bills

the relief asked for. The difficulty of the hon. member for Timiskaming is that he has all the facts backwards. When you start out with all the facts backwards you are liable to reach the wrong conclusion. The hon. member for Timiskaming also has a limited knowledge of the law, as he has demonstrated this afternoon. This also makes it difficult for him to adjudicate upon judical matters. That is one of the reasons why we have complained about this procedure of handling divorce and have taken the position that none of us are really competent to consider matters of this kind. There is this serious aspect to what the hon. member for Timiskaming has said. He is making a serious charge against some very responsible people.

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An hon. Member:

Very rich people.

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NDP

Reid Scott

New Democratic Party

Mr. Scott:

Well, they could still be

responsible even though they are rich. I should like to dissociate myself completely from the allegations he has made against these people. After having reviewed the file I desire to say that I wish all divorces were as good as this one. The evidence is excellent. Adequate provision has been made for the wife. Adequate provision has been made for the children. There is no reason in the world why this divorce could not go through.

The hon. member for Timiskaming has stated that here there is an ante-nuptial contract under the terms of which the wife is to receive $25,000 in the event of dissolution of marriage. He has said that because the wife committed adultery she should not get the $25,000. The fact is that it was not the wife who committed adultery but that it was the husband who did so; and it is the wife who was bringing action against the husband because of his conduct, and not the reverse position. Hence any suggestion of collusion would be a grave slight on the woman's integrity and should not be regarded by the House of Commons at all.

However, in reviewing these ante-nuptial contracts, Mr. Chairman, one is impressed with the whole procedure. In a way I wish that this type of premarital agreement could be introduced in all of the provinces. I think it would have a beneficial effect. The people of Quebec are to be congratulated upon this very sensible provision, namely that before young couples enter marriage they should enter into an agreement setting out what their views are, what their property is and who is to own what. The whole procedure of young couples going into marriage sitting down and deciding what their attitude towards marriage is going to be is a very sensible one. Indeed, I think if it were followed everywhere it would be very beneficial.

Divorce Bills

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PC

Gordon Campbell Chown (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Progressive Conservative

The Chairman:

With respect, I interrupt the hon. member in order to point out to him that, in his own remarks, he has supported the opinion of the Chair that to refer to contracts which are within the jurisdiction sole of a particular province and to urge that they become part of the body of the law in any other province is to deal with a matter that has no relation to the bill which is before the committee.

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NDP

Reid Scott

New Democratic Party

Mr. Scott:

Quite the contrary, Mr. Chairman. I would not wish you so to construe my remarks. What I said initially still stands. If the charges made by the hon. member for Timiskaming were true and if this contract were one which is contrary to public policy or public good and would constitute a bar, he is perfectly entitled to bring it here as he has done, and to argue that it constitutes a bar to the granting of a decree and that we should refuse to pass the bill. My position is contrary to his. I still assert that it is perfectly valid to bring a document here and argue it. What I am saying is that he is wrong in his conclusions. Since they may wish to agree with him, I am attempting to convince hon. members that they should disregard his opinion and should accept the validity of the argument that this contract, while it is part of the evidence, is not the kind of contract which would constitute a bar to the marriage itself and that therefore we should proceed. I would not wish you to construe my remarks as in any way agreeing with the ruling which you were about to make, Mr. Chairman, at an earlier stage of the debate.

If I might just continue for a moment or two I should like to do so. The reason that I would suggest to the committee that we proceed with this divorce, notwithstanding the talk about the $25,000, is that obviously in a case of this kind the plaintiff, who is the wife, married the husband many years ago, lived with him for about 20 years, raised his children, and looked after his home. It seems to me that it is in consideration of that fact that she is to receive the $25,000. She has surrendered up any other chances of marriage, presumably; she has surrendered any right to acquire any additional property, perhaps; and for that reason the $25,000 is being paid. Actually, it is a very wise and sound provision. For this reason I would suggest to the committee that this particular bill be passed; that the allegations made by the hon. member for Timiskaming are without any foundation in fact or in law; that his conclusions are erroneous; that the bill is a perfectly good and proper one, with proper provision for the children and the wife; and that we should proceed to give the bill passage at the present time.

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NDP

William Arnold Peters

New Democratic Party

Mr. Peters:

Mr. Chairman, I listened attentively to the hon. member for Danforth. I certainly bow to his legal knowledge. I am inclined to agree with him that the fact that a contract is in existence may not be a bad thing. However, my original contention still holds. Although I do not wish to pursue it, I should like to point out that this question was asked in the other place by Mr. Wilson. I am referring to page 11 of the evidence:

Q. Before you were married did you enter into an ante-nuptial contract with your husband? A. Yes.

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Cairine Reay Wilson

Mr. Wilson:

May I file this document?

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PC

Gordon Campbell Chown (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Progressive Conservative

The Chairman:

You may if you wish to prove it, certainly.

By Mr. Wilson:

Q. Would you take communication of this authentic notarial copy of an ante-nuptial contract? May it be filed as an exhibit?

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PC

Gordon Campbell Chown (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Progressive Conservative

The Chairman:

This will not in any way adversely affect your case; it may possibly have some validity.

It was filed. Then we find the following questions:

By Mr. Wilson:

Q. In virtue of that contract, your contract agreed to pay you the amount of $25,000? A. Yes.

Q. Did you enter into an agreement with your husband since you instituted proceedings against him in the Quebec courts whereby he agreed to pay you this amount? A. Yes.

Q. Which he has not yet paid? A. No.

Q. Will you look at this agreement, dated March 22, 1961 and state whether it bears your signature and your husband's signature? A. Yes.

(Agreement filed, marked Exhibit No. 4)

Q. Has there been any collusion existing between you and your husband in connection with these proceedings? A. No, none.

Q. Have you connived in the commission of these proceedings? A. No.

Q. Have you condoned the misconduct alleged in your petition? A. No, I haven't.

Q. Since your husband committed the adultery? A. No.

Q. You have not lived with him or seen him or had anything to do with him since? A. No.

Incidentally Mr. Chairman, let me interject that I think Perry Mason would say that was a very leading question, and I would imagine most of his proceedings would say that question should be inadmissible. The answer still was no. To continue reading:

Q. And he has lived separate and apart from you since 1961? A. Yes.

Q. You personally have no knowledge of the adultery alleged in the petition? No personal knowledge? A. No.

Then he goes on to what led to the breakup. In reading this evidence, Mr. Chairman, you will note that while there does not seem to be the same concern in the other place that I have exercised, there is a certain amount of concern in admitting these contracts because of the terms of the contracts. I suggest that if the contract had been discussed and if the possible terms of it had been known, maybe more consideration would have been given than was given. However, that raises a particular point.

The point has also been made that the wife in this case is suing for divorce. That may only mean that the respondent in this case is at least a gentleman as well as being able to pay $25,000.

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LIB
NDP

William Arnold Peters

New Democratic Party

Mr. Peters:

Well, that may or may not be, but it is quite normal to look at those cases where the wife files a petition even more closely than those cases where the husband files a petition because Canadian men as a whole are gentlemen and they quite often make the arrangements instead of leaving the wife in this very unenviable position. I continue:

By Senator Burchill:

Q. What led to the break-up?

A. His behavior was very odd, and the medical trips were very long and I asked him if this was the case, and he said yes, it was.

By the Chairman:

Q. If what was the case?

A. If he was interested in someone else.

Q. You asked him point blank if he was out with some other woman?

A. That is right.

Q. And he admitted the fact?

A. Yes.

By Senator Cameron:

Q. How long had this been going on?

A. Oh, quite a while.

By Senator Gershaw:

Q. Where was your husband born?

A. He was born in Montreal.

Q. Has he lived in Montreal all his life?

A. Yes. He was in New York for a couple of years interning and in Boston one year doing graduate work.

Q. As far as you know does he intend to continue to live in Montreal?

A. As far as I know, yes.

By the Chairman:

Q. Is there no hope of any foregiveness, or reconciliation between you?

A. No.

Q. Your children are nearly all grown up?

A. Yes. The boy is 21.

Q. With the exception of the youngest one they can all look after themselves now?

A. They can, and they are planning to get off about their own lives.

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LIB

Leon David Crestohl

Liberal

Mr. Creslohl:

On a point of order, Mr. Chairman, I think the Chair has ruled under similar circumstances that it is pointless to read all the evidence to the committee. Members of the committee received copies of the evidence and are presumed to have read it, and I do not think it helps the committee to any degree at all to have the evidence read at length now. Perhaps it does help to exhaust the very precious hour in which many people are hoping to have their cases dealt with. I am sure, however, that the hon. member does not mean to be unfair and that his motive simply cannot be to prevent other bills from being dealt with. As I say, I am

Divorce Bills

sure that is not his motive and I am also sure he will realize, as the committee certainly does, that extensive reading of the evidence is prejudicial to the other bills on the order paper and holds up consideration of them unduly.

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PC

Gordon Campbell Chown (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Progressive Conservative

The Chairman:

Order. The matter of holding up other business of the house is, of course, within the determination of the members of the committee themselves. However, the use of extensive quotations, as the hon. member realizes, from documents or from other records or minutes of parliament, especially such documents as are within the knowledge of the committee if they so desire, is not permitted. The other question, which is within his own determination, is whether or not it is in good taste to quote extensively from evidence of this nature with respect to a divorce, and I leave that to his own good judgment. But I do caution him against quoting extensively from such minutes because, as he realizes, the committee rules do not permit this.

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NDP

William Arnold Peters

New Democratic Party

Mr. Peters:

Mr. Chairman, I will not ask the hon. member to withdraw what I considered to be an unfair remark. However, if I were in a school and were the teacher I would ask for a show of hands of those that have studied this case and have read the evidence. I would imagine that the hon. member who has raised the point of order is one of those who would have to stand up and say that he knows absolutely nothing about this case except that these people come from the province of Quebec and probably from the area of Montreal.

I believe that in looking at this legislation just as any other we have to give some consideration to what we think are errors in it. I am interested in the way that this contract fits into this case and I hope to convince the committee that the contract as entered into constitutes a bar to the granting of this divorce because I believe that the terms of the contract are not in the public interest or for the public good.

I am not opposed to the remarks made by the hon. member for Danforth. I believe he is perfectly correct in saying that certain contracts are worth while. I am certainly very happy to find that one of the documents has to do with the maintenance of the children. This is a matter to which so many members of the house do not give any consideration at all and in fact raise points of order to the effect that we cannot even discuss it, although children are involved in the petitions that we handle and in my view are a very fundamental part of federal jurisdiction and responsibility with regard to divorce and marriage.

Divorce Bills

I believe that the committee of the other place gave some consideration to this point and that is why I am interested in studying the information that was brought out there. If members are going to come to a decision on this particular case without knowing anything about it and object to the information being brought forward, not with regard to divorce in general but this particular case, I suggest they are doing a disservice to the people they represent, and I do not think any member of the committee will stand up and say that he wants to do that. The chairman of the committee of the other place continued with these questions:

Q. Witness, did you at any time have any conversation with your husband about this whole affair?

A. Well, I did this time, yes.

Q. When?

A. I asked him.

Q. But when was this?

A. About a year and a half ago.

Q. You asked him what?

A. I asked him if there was another woman, and he said yes there was.

By Senator Gershaw:

Q. And you lived with him since then as man and wife?

A. We thought we would get over Christmas.

There are a number of members who are lawyers and the member who has raised the objection is one of them. I would ask him to consider this particular question.

Q. And you lived with him since then as man and wife?

This was after she had been told there was another woman involved.

A. We thought we would get over Christmas.

This in itself is a bar, Mr. Chairman. If an offence takes place and one of the parties knows about it and continues to live with the other party as man and wife then, as all lawyers well know, there is no basis for granting a divorce. If the relationship of man and wife is re-established the original offence is eliminated in law and this is an absolute bar to a divorce being obtained on that basis. Yet some say: Let us pass the bill. I wonder whether they would stand before the bar and say the same thing.

By the Chairman:

Q. How far did he go-did he just simply tell you there was another woman in the case-is that all he said?

A. Yes.

Q. He did not make any admissions as to any sexual relation or anything of that kind, did he?

A. Well, it was assumed.

Q. I am afraid it is the sort of thing we cannot assume, except where there is pretty substantial corroborative evidence?

A. There was.

Q. What was that corroborative circumstantial evidence?

A. I think when he spent week ends with her one could assume that.

[Mr. Peters. 1

Q. How do you know that?

A. Because the medical meetings would end Thursday or Friday. He said he was spending week ends with her.

Q. He told you point blank that he has spent the week end with this woman?

A. Yes.

Some members say: Let us get on with it; you are only holding it up. What kind of respect have they for the law, in which they are trained and I am not? I wonder. I think each member has an obligation to the full extent of his ability to see that justice is done to every person in this country and I think that justice cannot be assumed in this case by looking the other way.

This is not a case of turning the other cheek. I refer again to the evidence:

Q. Well, of course, he could do that and still there would be no sexual relations between them?

A. I think it is quite unlikely.

Q. That may be but we want a little more than that. Did he admit to you he used to spend weekends with her?

A. Oh, yes.

Q. Did he do that more than once?

A. Yes.

Q. Where were these medical meetings held that he went to?

A. At various places.

Q. In the United States?

A. Yes.

Q. In New York?

A. Yes.

By the Chairman:

Q. Did he tell you who the woman was?

A. Eventually, but not before he left the house.

Q. The position is that he admitted and told you he was spending his week ends with a woman?

A. Yes.

Q. Ultimately did he tell you her name?

A. Yes.

Q. And that name was?

A. Do I have to say her name?

Q. If he told you yes, of course.

A. Mrs. Lever.

Q. We have no allegation of any offence with Mrs. Lever. You do not know anything about this woman Margaret Bryant do you?

A. No.

Q. Nothing whatever?

A. No.

Now, Mr. Chairman, we come to the point in the evidence where it has been established by questioning in the other place that before the marriage broke up there had been a reference to a mysterious lady who spent week ends with the doctor after medical conventions in various places. Well, this divorce is obtained on evidence given by detectives. I have only the normal hesitation about accepting their evidence that every court in the country would have. All documents concerning divorce contain a warning that the evidence of a detective be given very close scrutiny, particularly when it is not documented by pictures or other forms of corroborative evidence. In this case the respondent and corespondent did not appear to give evidence.

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It is surprising that in this particular case, where the marriage has ended and where the name of the woman is known after the wife has left bed and board, that then the detectives come into the picture'and it is not the same woman at all.

Another bar to divorce, Mr. Chairman, may be the fact that the person obtaining the divorce is of such an unsavory character that he could be classed as being promiscuous. In the case of a woman, if she is engaged in prostitution, this may be a bar to the granting of a divorce. Well, now, we see a complete change from the situation which obtained at the time of the separation. Now, we come to the evidence of the detectives and it is completely separated from the evidence we have had before and involves a different party. I suggest, Mr. Chairman, that this would make one wonder if over a period of time this doctor, whom I am sure is highly qualified and is an outstanding citizen, would change to another woman after apparently liking this one first mentioned for such a period of time.

Now, there is a stage where we come into the same type of set-up that is involved in the ordinary divorce mill. I suggest, Mr. Chairman, that this takes us back to the contract again and whether or not there were inducements for this type of action. The divorce is established by having private investigators. They both gave evidence, and both live in Montreal. They classify themselves as investigators, but no questions were asked as to whether or not they were licensed in the province in which they operate or in Montreal. The investigator is shown a picture of the doctor and then this question is asked:

Q. Would you tell the committee of the investigation you made and what you discovered?

A. We were first requested to proceed with the investigation in the latter part of April or beginning of May, 1961 and we were given certain information as to his residence and so on.

Well, Mr. Chairman, I would presume this might involve the fact that many week ends were spent with a particular lady. I would think he would just have to find out when the next medical convention was going to be held, go along and find out for himself if the statements being made by the wife were true. This is not the way it was done.

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PC

Gordon Campbell Chown (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Progressive Conservative

The Chairman:

I am sorry to interrupt the hon. member, but his time has expired.

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January 22, 1963