January 22, 1963

MILDRED DAWSON MEAKINS


The house in committee on Bill SD-4, for the relief of Mildred Dawson Meakins-Mr. Mandziuk-Mr. Chown in the chair. On Clause 1-Marriage dissolved.


NDP

William Arnold Peters

New Democratic Party

Mr. Peters:

Mr. Chairman, I should like to say a few words this afternoon on this particular petition. I should like to again point out to the committee that people in the province of Quebec are faced with certain problems that do not normally arise in the province from which I come. I think these problems are worth some consideration by the committee. In looking over the evidence of this particular petition I find attached a number of documents. There is the marriage certificate and several other documents, including a settlement by the Superior Court of the province of Quebec as to the maintenance of the children. I think there is strong evidence here that this is one of the things the committee should look into. However, I should like to refer the committee to the fact that attached to this petition is an additional document that sometimes is attached to petitions, though not very often. In this particular case it is a document that was tabled originally in the Superior Court of the province of Quebec, and it is a contract between the plaintiff and the defendant.

The marriage certificate is here. The marriage was registered in the church of St. Andrew and St. Paul, in Montreal, on June 8, 1939. There is also attached a document which is a contract in a legal sense. I think this warrants some consideration. We are all well aware of the fact-and this is something that we have deplored on many occasions-that in the province of Quebec women have little right to property. In the first place, this contract contains a stipulation as to the ownership by the lady of

Divorce Bills

property of her own, so that the property she brings into the marriage will remain her own. Therefore if something happens, this property will be under her administration and will be separate from the property of her husband. The second section of the contract, however, reads this way:

The sum of $25,000 to be paid to the future wife by the future husband, his heirs and legal representatives within three months after the dissolution of the said marriage, with the right to him to make payments on account during the said marriage, either by investments in the name of the said future wife, by mortgage or hypothec upon or the purchase of immovable property, or in any other way.

It goes on to say:

Should the said future husband during the said marriage become insolvent, the said future wife shall thereupon have the right to claim and demand payment of the said sum of $25,000 or any part thereof remaining unpaid-

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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. I am sorry to interrupt the hon. member, but the rule as to relevancy has come into play with respect to the quotation he is now making. I thought I should now caution him about the reference to marital settlements or to maintenance or disposition of any children of the marriage, because these are matters that are not within the jurisdiction of the federal government but are, rather, within the strict jurisdiction of the provincial government concerned, and are therefore not applicable or related to the bill which is under consideration.

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NDP

William Arnold Peters

New Democratic Party

Mr. Peters:

Mr. Chairman, I would humbly disagree that they are not under consideration. The point I wish to make involves collusion. I say that this bill is not in the public interest, and it is not in the public interest because of the inclusion of this section in the contract. In this particular case I think it will be shown quite clearly that the incompetence of the other place, the committees of the other place and this house to deal with this particular matter-

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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. I am sorry to interrupt the hon. member again, but there should be no reflection on the other place at any time in the course of debate, as he well realizes.

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NDP

William Arnold Peters

New Democratic Party

Mr. Peters:

Mr. Chairman, I would submit that I have not reflected on the other place, but just on our ability to handle legal matters, with regard to which we are not competent or equipped to handle. I intended no reflection upon the other place other than that.

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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 word "incompetence" was used and that was the word upon which I rose.

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NDP

William Arnold Peters

New Democratic Party

Mr. Peters:

Mr. Chairman, this contract also includes this section:

But it is further agreed that in the event of the future wife predeceasing the future husband during the said marriage, the said sum of $25,000 or any investments or payments which may have been made on account thereof, and also all insurances on his life effected or which may hereafter be effected for her benefit or payable to her, shall return to and be the property of the future husband, without the heirs of the future wife having any right therein or claim thereto.

I say that we cannot grant this divorce if it is established that it is against the interests of the nation. If it is against the principles of justice and the crown, this divorce cannot be granted. I suggest that in these cases the petitioner must call the defendant and prove that collusion has not taken place, because in this instance, for that one evening of adultery this woman has been paid $25,000. That is probably an even more expensive piece of seduction than happened in the days of Cleopatra. I suggest that this is not in the interests of the public, and there are laws and regulations under laws which indicate that this is so. I suggest that the burden of proof is on the plaintiff to show that this did not happen. Because this was an uncontested case we can only assume that when the woman went out and committed the adultery which resulted in this divorce action, she was being paid the sum of $25,000 for that adultery. I also suggest that it may be even worse than that. If we read this contract we find that the payment can be started before the divorce action takes place. It may be that there is an added inducement to commit adultery in order to accomplish the end that would result in divorce.

I have no objection, and I expect that most hon. members have no objection, to the fact that the first part of the contract is written in this way. It is the right of the province to decide how the disposition of property should be arrived at between its citizens, having regard to civil rights. But I think we must consider the interests of the nation and the public good, and the fact that you cannot make arrangement for an offence to be committed before the offence takes place. This is something that is well recognized by lawyers, who understand these things much better than I do. It is unfortunate that I have not the legal training or the knowledge that would allow me to cite the cases in which this principle has been established-

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LIB
NDP

William Arnold Peters

New Democratic Party

Mr. Peters:

-but it is a fact that there are cases where separation agreements-

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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 hon. member for Cartier has risen on a point of order.

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LIB

Leon David Crestohl

Liberal

Mr. Creslohl:

Mr. Chairman, on a point of order, perhaps to enlighten the hon. member, notwithstanding his agitation about the document which he read to the committee, unfortunately the committee cannot consider it. That is a premarital contract. Whether the hon. member likes it or not, this is a premarital contract passed before the proper authorities in the province of Quebec and the house cannot pronounce itself one way or another in any manner which could affect that contract. It is a contract which deals purely with rights and properties within the province and for this reason I submit the hon. member is entirely out of order. If the hon. member has no other matter to raise, I suggest this should be pointed out to him, since the house has no jurisdiction whatsoever over this aspect of the question. I do not wish to pronounce myself as to the conclusions he is drawing. They may be proper or improper. The point is that if we consider them we would be dealing with a matter which is entirely within the jurisdiction of a province and, therefore, this committee should not pronounce on it in any way.

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NDP

Reid Scott

New Democratic Party

Mr. Scott:

On the point of order, I should like to disagree with the last speaker and urge you to allow my hon. friend from Timis-kaming to continue. I may say that I disagree completely with him and wish to urge the committee to support the bill, when I get an opportunity to do so.

The agreement to which my hon. friend is referring is an actual part of the evidence upon which the other place reached its conclusion with regard to the granting of this divorce, so I do not see how we could be precluded from discussing the evidence which was considered in the other place as a basis for the decision reached in connection with this bill. If we are not to be allowed to discuss the evidence, I think we are precluded from discussing this matter at all. I am sure any solicitor would take the view that in discussing the merits of the bill we are entitled to look at the evidence upon which a decision to pass it is based, and for that reason and also because a serious charge against these people has been made-a charge I intend to repudiate-I think the hon. member should be allowed to continue.

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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:

The committee has before it clause 1 of Bill No. SD-4 which reads as follows:

The said marriage is hereby dissolved and shall be henceforth null and void to all intents and purposes whatsoever.

When there is a question of the administration of justice within a province and of a contract made within the jurisdiction of that province, a civil contract made under a type

Divorce Bills

of law which is different from that which has application from the viewpoint of the federal government, I have great difficulty in accepting that as relevant in a discussion of a simple clause such as I have quoted. This is where I am finding my difficulty.

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NDP

William Arnold Peters

New Democratic Party

Mr. Peiers:

I am basing my argument on the contention that this divorce, if allowed, would not be in the public interest, in the same light as collusion or other things which are definite bars to the granting of divorce petitions. These documents are not documents which are solely in my possession. They are documents which are in the possession of the house. They are not separate from this particular divorce application; they are attached to the official documents and are part of them. I suggest that though collusion may have taken place in the province of Quebec where the law of the province of Quebec as to collusion or domicile applies, when the plaintiff appears before parliament asking for the divorce he must abide by the regulations which apply to the granting of divorce in the dominion of Canada under the legislation setting up the House of Commons and the Senate as a divorce court.

While I am not making any comment on this evidence as it relates to the property settlement, I am drawing the attention of the committee to this because it relates to what I would consider as being an absolute bar to the granting of this divorce, specifically the existence of conditions which would lead one to speculate as to what might have happened in the field of collusion.

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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:

The chairman and the committee of the whole are not bound by any admission or rejection of evidence by the other place or by another committee. If I were hearing the case myself, my view of a civil contract would be that this is completely extraneous. This view is prompted by the fact that there is no jurisdiction here for us to look at it at all, being a matter within the sole jurisdiction of a province. For this reason it appears to me that any reference to it is completely out of order as the bill is before the Chair in its present state. I am willing to hear more argument on the point but I might say this, that in many instances exhibits are filed before a committee which are completely irrelevant to the cause which that committee is trying to determine, which is, in this instance, whether or not there is evidence to support a decree under clause 1 of the bill before us.

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NDP

Reid Scott

New Democratic Party

Mr. Scott:

With great respect, Mr. Chairman, surely on reflection that line of reasoning cannot stand up. You have here before

Divorce Bills

you a bill saying we should dissolve a marriage. Presumably the opinion has been advanced that it should be dissolved. In order for us to decide whether or not consent should be given to the passage of this bill, surely we are entitled to look at the evidence which was laid before the other place whose committee considered this bill in great particularity. Are you suggesting, Mr. Chairman, that we are not entitled to consider any of the evidence laid before the other place? I should be glad to hear just what you think we can and cannot discuss in measures of this kind.

As you well know, Mr. Chairman, even if there is evidence sufficient to support the passage of the bill, any member can raise what he considers to be a bar to the passage of the legislation, notwithstanding the existence of such evidence. Any court in the land will permit various issues to be raised in divorce matters which constitute a bar to a decree even if there is adequate evidence to support such a decree. That is what my hon. friend is attempting to do. He is saying that as part of the evidence properly admitted in the other place there is material which constitutes a bar to the passage of the bill, notwithstanding that there may be perfectly good grounds-and in this case I am satisfied the evidence is adequate. He wants to raise a serious matter in his mind which would normally bar the passage of this bill in an ordinary court if what he says is true. In these circumstances, Mr. Chairman, how can you preclude him from referring to the evidence upon which he must make his claim?

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NDP

William Arnold Peters

New Democratic Party

Mr. Peters:

May I draw your attention, Mr. Chairman, to a passage appearing in Dominion Law Reports, Volume 3, 1957, page 321? This is the case of Woods v. Woods which was heard before the Ontario supreme court (Mr. Justice Rose, J.) on April 22, 1927. The heading is: "Divorce and Separation VIII-Separation agreement-Founded partly on illegal consideration-void."

A separation agreement founded partly on a legal and partly on an illegal consideration cannot be held valid as to such of it as is legal and invalid as to the rest, but must be held void in toto. (Eastview v. R.C.E.C. Ottawa (1918) 47 D.L.R. 47, 44 O.L.R. 284, applied)

What that means I do not know.

In this case if the marriage contract in effect at the time is shown to have something wrong with it, is shown to have an illegal section to it, then it is void. I believe this applies to the whole question of divorce. If part of a case is illegal, then so is the rest. I am sure that if we indicated that in this case the detectives had perjured themselves, and can prove to your satisfaction, Mr. Chairman, then that will be a bar to the granting of this divorce. If we can indicate there is

some doubt about it, that the contract establishing this marriage is not legal, then the divorce action would be void.

I think that we should look at this in light of the over-all picture. I think it is an established fact that the institution of marriage is for the good of the nation. The institution of marriage is a very worthy part of our common law. For this reason, if this petitioner found that his wife had committed adultery and that he had a bar to this divorce, then the sum of $25,000 seems to be an unusual penalty for him to pay. I suggest that the common good is not going to be served if this petitioner is going to have to pay $25,000 to do what other people would do without paying $25,000 costs, and that this was put in in the beginning.

There is a case in English law which unfortunately I do not have before me, but it is similar to cases I do have before me where the circumstances are a little different. A man asked a woman to live with him under a common law arrangement, and he agreed that if he left her within ten years he would pay her $50,000. When this case was taken to court the court held that this was against the common interest, because the setting up of the contract was not in the national interest or for the public good. I note that the contract says that it will be paid in lieu of dissolution of the marriage. There are, of course, two ways of dissolving a marriage. One is by death, which is the normal way, and the second is by divorce. The contract says that should the husband predecease the wife the money will not have to be paid to the heirs of the wife. In other words, if death was the factor dissolving the marriage the $25,000 would not be paid to the woman's estate; it is only paid during her lifetime. Therefore, the conclusion is that the only reason for the $25,000 is that the marriage will be dissolved by divorce.

Mr. Chairman, I maintain that if this is so then it is open to many abuses. I am not prepared to state that this is the case because I think you would have to know something about the facts other than the contract alone. But I do believe that this case should be referred back to the committee and that the committee be asked to call the respondent before them so they can ascertain whether or not there was such an arrangement or collusion so as to obtain this divorce. I think this is part of the responsibility of the petitioner, because he has brought this case before us. If what I say turns out to be the fact, we cannot grant this divorce because there will be the absolute bar of collusion: there will be an arrangement. If we are to

be honest at all in these divorce cases I think we are under an obligation to call before us the respondent, if necessary by subpoena, to ascertain on behalf of the good of Canada and the law we are representing whether or not this is the fact. This is one of the reasons why I said we appear to be in conflict here, because no question was raised by our own committee on this question, and as far as I can ascertain no question was raised in the other place. For these reasons, Mr. Chairman, I suggest that this case should be returned to the committee for further investigation, with the direction that the parties be recalled before the committee to discuss this question of divorce settlement.

Mr. Chairman, there are other cases on this, and I should like to read one contained in the Dominion Law Reports on page 323.

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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. I have allowed the hon. member some additional time because of interruptions as a result of points of order which were raised. The quoting of authorities of law, which has been allowed, and which are authorities on the common law, not on the French civil code which is applicable in the province of Quebec, tend to be an attempt on the part of the hon. member to construe this committee as a court, which it is not. I just refer to that before I call on the hon. member for Danforth.

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January 22, 1963