May 16, 1918

PRIVATE BILLS.

CONSIDERED IN COMMITTEE-THIRD READINGS.


Bill No. 76, for ithe relief of William Leo Walpole.-Mr. Fripp. Bill No. 77, for the relief of Mary Claire Dawson Hislop.-Mr. Jacobs. Bill No. 78, for the relief of Martin Haf-ner.-Mr. H. A. Mackie. Bill No. 79, for the relief of Ida Sophia Wardell.-Mr. W. F. Maclean. Bill No. 80, for the relief of Edward David Hill.-Mr. Richardson. Bill No. 73, for the relief of Frederick Ernest Zang.-Mr. Redmond. Bill No. 74, for the relief of Thomas Bailey Wainwright.-Mr. Fripp. Bill No. 91, for the relief of Francis Newman. Mr. Lalor. Bill No. 92, for the relief of Henry Ernest Saxby.-Mr. Fripp. Bill No. 90, respecting The Church and Manse Board of the Presbyterian Church in Canada.-Mr. Nickle.


JURISDICTION OF PROVINCIAL COURTS IN DIVORCE CASES.


In Committee on Private Bills:


L LIB

Rodolphe Lemieux

Laurier Liberal

Hon. RODOLPHE LEMIEUX (Maison-neuve):

I notice that .an unusually large number of divorce Bills are before the House this year. A few days ago a judgment was rendered by the Supreme Court of Manitoba, in which, if I mistake not, it was declared that henceforth the courts of Manitoba could grant divorces; that under the British North America Act, as amended when Manitoba came into Confederation, the English law was, in certain circumstances, to obtain in that province, and with it the application of the English law on the annulment of marriages. I believe that that pronouncement of the Supreme Court of Manitoba has mot been challenged. The same assertion was made, I believe, by the courts in one of the other western provinces.

iSir ROBERT BORDEN: I think it was decided in the same way in Saskatchewan, judging from a press report.

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L LIB

Rodolphe Lemieux

Laurier Liberal

Mr. LEMIEUX:

I should like to have an expression of opinion from my right hon. friend with regard to this very important matter, because these decisions may alter completely our divorce proceedings in this Parliament. The opinion has been expressed in the other Chamber that larger powers should be conferred on the Senate with regard to the granting of divorces.

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UNION

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs)

Unionist

Sir ROBERT BORDEN:

I know nothing of the decisions referred to except what has appeared in the public press. The Minister of Justice will doubtless be able to give some information on the subject after he has had opportunity of examining it. In four of the provinces, I believe- the Maritime Provinces and British Columbia-jurisdiction has hitherto been exercised by the courts in respect to the granting of divorces. So far as I know, jurisdiction in these provinces has never been

questioned. Similar jurisdiction is now asserted in Manitoba, Alberta and Saskatchewan. It would be a very desirable consummation if these matters could be referred to the courts.

It is obvious to every one, who is familiar with divorce proceedings as conducted in the Senate, and in the courts, that the public interest is much better conserved by having such matters dealt with in a judicial way. In ,a divorce court it is the duty of the presiding judge, in an undefended case, to appoint a King's proctor, -who is charged with taking up the defence and of making such inquiry, by cross-examination of witnesses, and so forth, as to assure himself that there is no collusion between the parties. Whether or not any proceeding of that kind is taken before the Senate Committee, I do not know, but if so it is of recent years, because formerly no such practice prevailed. Apart from that; divorce is a proper subject for judicial inquiry if it is to be dealt with at all. I venture to express the hope that, if jurisdiction has been asserted by the courts in the three western provinces, it may transpire that their decision is well founded. It may also be proper for this House to consider whether by some means the jurisdiction could be transferred to the courts of the other provinces of Canada. At all event?, whenever the Senate is to consider a divorce Bill, the evidence upon which that Bill is founded, should be taken before a judicial tribunal and not by a committee of the Senate. Let us assume that there is some insuperable obstacle to vesting this jurisdiction in the courts of Ontario and Quebec. Would it not be better to have the inquiry conducted by a judge, the evidence heard by him, and the determination upon that evidence reported by him, leaving to the Senate the final adjudication by Act of Parliament? We can all, I think, agree that the present system is highly unsatisfactory.

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L LIB

Wilfrid Laurier (Leader of the Official Opposition)

Laurier Liberal

Sir WILFRID LAURIER:

As I understand the question, it is not exactly as the Prime Minister puts it. Under the Act of Confederation, the Parliament of Canada alone has the power to legislate upon divorce. There is no doubt at all that, upon_ the broad terms of the constitution of this country, this Parliament has the right to establish a divorce court or to give jurisdiction. But this Parliament has always refrained from exercising that jurisdiction, and consequently, the' practice has grown up of parties seeking divorce, and who can not ob-

[Sif Robert Borden.] -

tain it in their own province, coming to this Parliament.

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UNION

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs)

Unionist

Sir ROBERT BORDEN:

Just as used to be the case in Great Britain.

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L LIB

Wilfrid Laurier (Leader of the Official Opposition)

Laurier Liberal

Sir WILFRID LAURIER:

Exactly, and that will be the case here until there is a divorce court established. The other question to which my right hon. friend referred is, as I understand it, that the province of Manitoba and also the provinces of Saskatchewan and Alberta claim they have_the right to establish divorce courts.

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UNION

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs)

Unionist

Sir ROBERT BORDEN:

No.

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L LIB

Wilfrid Laurier (Leader of the Official Opposition)

Laurier Liberal

Sir WILFRID LAURIER:

I understand the province of Manitoba claims its own courts have jurisdiction to decide divorce cases. If that is the situation, there is only one question at the present time. If any province which established its constitution at the time of Confederation has not the power to give its courts jurisdiction to grant divorces, have the new provinces now the power to give their courts jurisdiction to grant divorces? That is the question to-day, and it can, of course, be decided only by the supreme judicial authority, and the sooner there is a concrete case decided m regard to this point, the better it will be. If it be determined by the supreme judicial authority that the new provinces created since Confederation have the power to have divorces granted by their own courts, that wid simplify the question very much so far as the divorce business of this Parliament is concerned.

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UNION

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs)

Unionist

Sir ROBERT BORDEN:

Would not my right hon. friend think it better to have those matters determined by ia judicial inquiry rather than by the Senate?

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L LIB

Wilfrid Laurier (Leader of the Official Opposition)

Laurier Liberal

Sir WILFRID LAURIER:

Here is a

province which asserts- that it has, under the constitution, the authority to have its own courts decide these matters. If that he so, the question of the interpretation of the constitution ought to be. determined before any other proceeding is taken.

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UNION

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs)

Unionist

Sir ROBERT BORDEN:

I do not think anybody contends that the province of Manitoba can create a divorce court. I think the contention is that the divorce court is already there, and there as a consequence of what this Parliament has done, whether it so intended or not.

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L LIB

Wilfrid Laurier (Leader of the Official Opposition)

Laurier Liberal

Sir WILFRID LAURIER:

Exactly.

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UNI L

William Stevens Fielding

Unionist (Liberal)

Hon. W. S. FIELDING:

As a layman, may I venture to give an expression- of opinion? Not only has Manitoba declared its power in the matter; it has done more,

it has exercised that power, (because it has recently 'granted a divorce, and I believe it is claimed that, under similar legislation, Saskatchewan and Alberta may do the same thing. I am one of those who have long felt it would be better if we could have one general divorce court for the' whole Dominion. I think we can all agree that the manner in which divorce cases are dealt with by this Parliament is not at all in accordance with, shall I say, moral conditions, nor in accordance with sound legislation. If we cannot have a general divorce court, might it not be a wise course for the Government to say that, wherever there is a divorce court clearly established in a province, the parties in that province shall go to that court? That would reduce the duties of this Parliament to the exercise of the functions of a divorce court only for the provinces of Ontario and Quebec, until the good day shall come when even those provinces will be allowed to dispose of those matters in a better way.

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REPORT.


Second report of the War Purchasing Commission, for the year ended March 31, 1918.-Sir Robert Borden. THE YUKON ELECTION:


May 16, 1918