March 13, 1930

UFA

William Irvine

United Farmers of Alberta

Mr. IRVINE:

May I ask the hon. gentleman a question at this point? Do I understand him to be arguing that the clauses in this bill to be repealed should be repealed on the ground that they are unconstitutional?

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IND

Joseph Henri Napoléon Bourassa

Independent

Mr. BOURASSA:

Oh, no, that is not the point. The broad basis of my argument is this, that whether in relation to divorce or in relation to marriage, this parliament is not only morally and socially unfit, but it is constitutionally unfit to legislate, if you go to the root of the question, and if you look to the spirit and not only to the letter of the constitution. And I say the evidence is that parliament has recognized so well its organic incapacity, that in spite of the numerous complaints arising at times from one province or another, it has never amended the marriage laws of any of the provinces, except in these three small instances that I have mentioned.

May I say with regard to divorce, that I reserve to myself the right, when later on I bring before the house the motion of which I have given notice, to go deeper into the question; but I say divorce-

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UFA

Michael Luchkovich

United Farmers of Alberta

Mr. LUCHKOVICH:

Do I understand the hon. gentleman to say this parliament is not fit to deal with this matter? If so, what legislative body is fit to do so?

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IND

Joseph Henri Napoléon Bourassa

Independent

Mr. BOURASSA:

The provinces. I argued that three years ago, I argued it two years ago, I argued it last session, and I am arguing it again now. I hope my hon. friend will understand my position. Of course, under the constitution as it stands, the provinces are prevented from dealing with the subject; but using its common sense, parliament did not exercise its constitutional right to deal with it, except in the spasmodic way that it has done so far. Likewise with divorce. Is it not ridiculous, when we open those two big books of the revised statutes of Canada dealing at length with thousands of matters to find that when it comes to what is the most important matter for the social life of any country-a matter that has concerned priesthood and statecraft for centuries and centuries, the most difficult question treated by the famous Con-seil d'Etat of France, which produced that masterpiece of legislation, in point of form, the Code Napoleon, a matter which has evoked such marvellous legal dissertations in the English parliament at the time of the adoption of the Divorce and Matrimonial Causes Act-I say, is it not ridiculous to find that in this great country of Canada which claims that it needs population, and therefore where the matrimonial problem is still more intimately connected than elsewhere with the

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Marriage and Divorce-Mr. Bourassa

national life, that the whole exercise of our powers of legislation relate to the marriage of a widower with his sister-in-law or with a niece by alliance, and as to divorce proceedings to be taken before certain courts in western Canada? That is the whole of our national legislation in this matter. Is not this clear evidence that this parliament realizes its unfitness? I pay tribute to the common sense of this parliament in refusing to legislate in these matters, and I make an appeal to the common sense of the members of this house, and I commend this bill, not because of its intrinsic merits but because it is the first step in what I consider to be the right direction.

The second step will be to put an end to the ever increasing flow of petitions to this parliament, to secure by private legislation what we refuse to do by public legislation. I do not want to speak now on that aspect of the question.

The third thing to be done, and one which, to my mind, commends itself to the sound judgment of all true Canadians, would be to prepare an amendment to our constitution, so that this question of marriage-intimately connected as it is with all civilization, with property, with the care of children, with the fate of women separated either by divorce or by some judicial separation from their husbands-will be dealt with in the proper spirit. The manner in which we exercise our jurisdiction in the matter is a social crime. And it is not our fault. It is the original fault of the constitution which enables us, and, so far as Quebec and Ontario are concerned, seemingly forces us to dissolve marriages, by hundreds every year, and prevents us from doing the most elementary justice to the women or to the men of the country-because there are cases where the man has to be pitied just as much if not more than the woman. But let us remember especially the children. To them we are unable to do elementary justice, because that phase of the question is in the hands of nine other powers. We are able to do one end of the business badly, but we are unable to finish the business by at least reforming or getting rid of some of the evil consequences of what we do.

It is in that spirit, Mr. Speaker, that I commend this bill to the attention of the house. In summing up my argument, I repeat that, owing to the main error of the fathers of confederation, we have in our constitution a noxious separation of power between the federal government and the provinces with regard to marriage and divorce, and, secondly, with regard to education. I submit that in British-like fashion we should commence by

first correcting one error, and with that object in view I commend this bill to the attentive care of the house.

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LAB

Herbert Bealey Adshead

Labour

Mr. ADSHEAD:

I suppose, if the hon. gentleman is to attain his end, we shall have to amend the British North America Act?

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IND
UFA

Alfred Speakman

United Farmers of Alberta

Mr. SPEAKMAN:

I followed my hon.

friend's argument with some care. Is it not a fact, then that the bill introduced by the hon. member for Winnipeg North Centre (Mr. Woodsworth) and defeated in this house, was very much in harmony with the underlying principles enunciated this afternoon by the hon. member for Labelle (Mr. Bourassa) in relinquishing control over certain matters?

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IND

Joseph Henri Napoléon Bourassa

Independent

Mr. BOURASSA:

My answer is very simple. You cannot disconnect-and that was another argument made by Mr. Nesbitt before the supreme court-the question of divorce from that of marriage. Divorce is an exceptional negation of marriage; and therefore we should not begin at the end and empower new provinces to deal with divorce unless we first empower them to deal with marriage.

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LIB

Joseph Thorarinn Thorson

Liberal

Mr. J. T. THORSON (Winnipeg South Centre):

Mr. Speaker, the hon. member for Labelle (Mr. Bourassa), stated in opening that the bill which he iproiposes to the house is a very simple one to understand. Notwithstanding that statement, I think it will be of interest to the hon. members of the house if I explain wihat will be the effect of the enactment ctf this measure. I do not think that the bill is quite as simple as the hon. member for Labelle suggests. I .therefore ask your indulgence and that of the house while I endeavour to set out what the state of the few as to divorce was in the various provinces of Canada at the time of confederation, what changes in the law were made by the Divorce Act of 1925, and wihat will be the effect if this bill is passed by the house.

The purpose of this bill is to repeal the Divorce Act of 1925, which was passed by this parliament for the purpose of putting the two sexes on a basis of equality, in so far as divorce is concerned, in the four western provinces of Canada. Prior to and at the time of confederation, each of the maritime provinces had its own divorce law, and its own courts having jurisdiction to grant divorce. In the province of Nova Scotia the grounds of divorce at the time Of confederation were adultery, impotence, cruelty or consanguinity. In the province of New Brunswick, divorce might be obtained on the ground of adultery, impotence or consanguinity

Marriage and Divorce-Mr. Thorson

and in the province oif Prince Edward Island the grounds of divorce were the same as those that obtained in the province of New Brunswick.

That was the situation in those three provinces when they entered confederation; both sexes were on a basis of equality in so far as the grounds for divorce were concerned. The husband was treated in exactly the same way as the wife. There was a single standard of .marital morality and not a double standard such as existed in western Canada up to the passing of the Divorce Act of 1925.

In the province of Quebec there are no courts having jurisdiction to grant divorce and there is no divorce law, as such, in that province. Nor are there any courts in the province of Ontario having jurisdiction to grant divorce, and there is no general law of divorce applicable to the province of Ontario. The result is that persons domiciled in either of these two provinces who wish to obtain a divorce must come to this parliament and obtain a private act of parliament dissolving their marriage.

The hon. member forLabelle (Mr. Bourassa) put the constitutional position of this house very clearly and very forcefully before the house. This parliament and this parliament alone has exclusive jurisdiction in the matter of divorce. It can decree divorce upon any ground whatsoever. It has been the practice of parliament however to confine its private acts of divorce to certain well known grounds, namely, that of adultery, and husband and wife have been treated alike so far as the grounds for divorce are concerned.

When we come to the western provinces, the situation is very different indeed. For a long time after their entry into confederation it was assumed, and the courts so held, that the western provinces of Canada had no divorce law and that the courts of those provinces had no jurisdiction to grant divorce. Consequently, persons domiciled in any of those provinces had to come to this parliament if they wished to obtain a divorce. As the result of a great deal of legal research and the scholarly studies of certain well known barristers in Manitoba, one of whom is now Mr. Justice Donovan of the Court of King's Bench of the province of Manitoba, it was discovered that the province of Manitoba did have a divorce law, and that the court of King's Bench of Manitoba did have jurisdiction to grant divorce. The judicial committee of the Privy Council so held in the famous case of Walker vs. Walker. Similarly it has been decided that the courts of the provinces of Saskatchewan, Alberta and British Columbia have jurisdiction to grant divorce.

The reason for that jurisdiction is that the three western provinces, Manitoba, Saskatchewan and Alberta, take as their basic law the law of England as it stood on the 15th day of July, 1870, in so far as it may be applicable. That is the law of these three provinces, except in so far as it may have been altered by the provincial legislatures or the federal parliament, each acting within the scope of their respective jurisdictions. The law of British Columbia, when it was first constituted as a province, was the law of England as it stood on the 19th day of November, 1858, in so far as it might be applicable. What was the law of England on the subject of divorce at that time? Prior to 1857 there was no general divorce law in England, and any person who wished to obtain a divorce had to obtain a private act of parliament, just as those who now live in the provinces of Ontario and Quebec have to come to the Canadian parliament. In 1857, however, the parliament of Great Britain passed what is known as the Divorce and Matrimonial Causes Act, which act, for the first time, conferred jurisdiction upon the courts to grant divorce.

The important section of that act reads as follows:

It shall be lawful for any husband to present a petition to the said court, praying that his marriage may be dissolved, on the ground that his wife has since the celebration thereof, been guilty of adultery; and it shall be lawful for any wife to present a petition to the said court, praying that her marriage may be dissolved, on the ground that since the celebration thereof her husband has been guilty of incestuous adultery-[DOT]

Not adultery alone, mark you, but incestuous adultery.

-or bigamy with adultery, or of rape, or of sodomy, or bestiality or of adultery coupled with such cruelty as without adultery would have entiled her to a divorce a mensa et thoro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards; and every such petition shall state as distinctly as the nature of the case permits the facts on which the claim to have such marriage dissolved is founded; provided that for- the purposes of this act incestuous adultery shall be taken to mean adultery committed by a husband with a woman with whom if his wife were dead he could not lawfully contract marriage by reason of her being within the prohibited degrees of consanguinity or affinity; and bigamy shall be taken to mean marriage of any person, being married, to any other person during the life of the former husband or W'ife, whether the second marriage shall have taken place within the dominions of Her Majesty or elsewhere.

Note the position in which this act of 1857 placed the husband and wife respectively. It draws a very great distinction between their re-

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Marriage and Divorce-Mr. Thorson

spective rights in the matter of divorce. Under the provisions of this act, if the husband wished to obtain a divorce from his wife all that he was required to prove was that his wife had been guilty of adultery after the celebration of the marriage. The wife, however, was not in that position. She could not obtain a divorce from her husband upon the ground of his adultery; he could commit adultery as often as he liked and with as many women as he liked, and his wife could not obtain a divorce from him so long as he was not also guilty of some other offence. In addition to proving adultery on the part of the husband, the wife had to prove that her husband had also been guilty of either incest, bigamy, rape, sodomy, bestiality, cruelty, or desertion without reasonable excuse for a period of two years or upwards. That was the law enacted by the Divorce and Matrimonial Causes Act of 1857, and under that law, as enacted in England, the double standard of morality was set up, with regard to the marital relationship. That was the law with respect to the subject of divorce, that the four western provinces of Canada inherited upon their entry into confederation, and that remained the law of those provinces until 1925, because they had the law of England as the basis of their law, including the Divorce and Matrimonial Causes Act of 1857.

Several reasons were given for the double standard of marital morality set up by this act of 1857. The first, and probably the chief reason, was that the act was passed by man; for woman, who according to the early concepts of English law was something very much in the nature of a chattel owned by her husband, had no say whatever in the making of that law. A further reason was advanced for the double standard of marital morality, namely that it was more serious for the wife than it was for the husband to be guilty of adultery, because adultery on the part of the wife might have the unfortunate consequence of introducing illegitimate offspring into the family and the husband might have to support such offspring. Whatever the reasons may have been for the double standard of marital morality, such was the result of the Divorce and Matrimonial Causes Act of 1857, and that was the law of the four western provinces of Canada. That may again be the iniquitous state of the law in those provinces if the bill now before the house is passed.

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LAB
LIB

Joseph Thorarinn Thorson

Liberal

Mr. THORSON:

I would prefer to submit to questions afterwards, if my hon. friend will permit me.

Does any member of this house wish to reintroduce into western Canada that iniquitous state of affairs?

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?

Some hon. MEMBERS:

No, no.

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LIB

Joseph Thorarinn Thorson

Liberal

Mr. THORSON:

Every member of this

house who votes for this bill answers the question which I have just put in the affirmative because according to one view, that will be the consequence and the result of the adoption of this nroposed legislation.

Let me remind you, Mr. Speaker, that this iniquitous state of affairs existed only in the four western provinces of Canada; it had no application whatsoever to the maritime provinces because in those three provinces the sexes were placed upon a status of equality in so far as divorce was concerned; it had no application to the provinces of Ontario and Quebec because the residents of those provinces came to this parliament for relief, and parliament placed both sexes on a status of equality. The change in the law of the western provinces was brought about through the efforts of Mr. J. T. Shaw, the predecessor in this house of the bon. leader of the opposition (Mr. Bennett). On March 19, 1924, Mr. Shaw moved the following resolution:

That, in the opinion of this house, legislation should be introduced in order to place the wife on an equality with the husband as regards the grounds upon which divorce may be obtained.

A very interesting debate followed the introduction of that resolution. During the debate Mr. Shaw mentioned that the law of England had been changed from that which had obtained under the provisions of the Divorce and Matrimonial Causes Act of 1857, the change having taken place in 1923 as a result of the report of a special commission appointed by the parliament of Great Britain to look into the question of divorce and report back to it. In the course of its report that commission made the following very interesting statement:

Apart from abstract justice the strongest reason for placing sexes on an equality is that, *where two standards exist, there is a tendency to accept the lower for both parties. The social and economic position of women has greatly changed in the last hundred, and even in the last fifty years. The Married Women's Property Act, 1882, has given them a new status in regard to property; they engage freely in business and in the professions, and in municipal, educational and Poor Law administrations, and claim equality of treatment with men. In our opinion it is impossible to maintain a different standard of morality in the marriage relations, without creating the impression that justice is

Marriage and Divorce-Mr. Thorson

denied to women, an impression that must tend to lower the respect in which the marriage law is held by women.

The commission made the following recommendation :

Our conclusion is that no satisfactory solution of the problem -which is raised as to the personal relations between husband and wife can be found, except by placing them on an equal footing, and by declaring that, whatever grounds are permitted to a husband for obtaining a divorce from his wife, the same grounds shall be available to a wife in a suit against her husband. It may be safely left to a woman to consider whether she will exercise her rights, and it may reasonably be expected that, as has been proved by actual experience in Scotland, physical, social, pecuniary, and other considerations will have their natural effect, and lead to such rights not being exercised, at any rate in the great majority of cases, without such good and sufficient reason as will meet with the approval of relations and friends of the wife.

As the result of the adoption of that report, the parliament of Great Britain amended the legislation of 1857 by enacting in 1923 a law amending the Divorce and Matrimonial Causes Act of 1857. The important section of the amending act of 1923 reads as follows:

2. It shall be lawful for any wife to present a petition to the court praying that her marriage may be dissolved on the ground that her husband, has, since the celebration thereof and since the passing of this act been guilty of adultery: Provided that nothing contained

*herein shall affect or take away any right of any wife, existing immediately before the passing of the act.

The resolution introduced by Mr. Shaw in 1924 was dropped by him upon his receiving an assurance from one of the ministers of the crown that consideration would be given to a bill which would be introduced by him during the session. Mr. Shaw did introduce a bill for the purpose of carrying out the objects of his resolution, and that bill received its first reading on March 28, 1924, but it was never reached again during that session. In 1925 Mr. Shaw introduced into the house Bill No. 4, which contained the legislation which this bill now seeks to repeal. The bill introduced by Mr. Shaw was enacted as the Divorce Act, being chapter 41 of the statutes of Canada, 1925. Section 2 of that act reads as follows:

In any court having jurisdiction to grant divorce a vinculo matrimonii any wife may commence an action praying that her marriage may be dissolved on the ground that her husband has since the celebration thereof been guilty of adultery.

For the first time in the history of the western provinces the husband and the wife were placed in a position of equality with one another in so far as the grounds for divorce

were concerned. The purpose of the bill now before the house is to repeal that legislation of 1925.

Allow me, Mr. Speaker, to discuss what will be the result if this bill now before the house should pass. There are two views that may be taken of this matter, and I will deal with both of them very briefly. No matter which view is the correct one in law, the result to my mind would be very detrimental. One view which might be taken is that if the legislation of 1925 were repealed, the law previously in force in the western provinces with regard to divorce would be restored. If that view is correct the result would be that this house would again impose on the four western provinces of Canada the double standard of marital morality. It would be permissible once more for the husband to be guilty of adultery as often as he liked without his wife having the right to file a petition against him for divorce in the provincial courts. So long as he had not been guilty of any of the other acts to which I referred a moment ago and which by the old law were a necessary part of the cause of action of the wife, he would be free from any action on her part. On the other hand the husband would be able to divorce his wife simply upon the ground of her adultery. I do not believe that any member of this house would wish to reimpose upon the women of western Canada that double standard of morality in so far as the marital relationships are concerned. We accomplished a great deal in 1925 when Mr. Shaw's bill passed the house. We put the two sexes upon that basis of equality upon which they should always have been placed. Why should we throw away the results of our efforts? In my opinion this is an iniquitous and absolutely unjust bill and it should be rejected by the house.

There is another view that may be taken as to the result of this bill, if it should be enacted, and I beg you, Mr. Speaker, to bear with me for a moment while I endeavour to elaborate it. This is the view in which I am inclined to concur as being the true legal result of the enactment of the bill. This bill, if enacted, will be a repeal of the Divorce Act of 1925. What will be the effect of the repeal of that statute? It may be argued that the effect of repealing this statute will be to revive the preexisting law. I do not agree with that proposition. The result will be worse than that in so far as the married women of western Canada are concerned. The result of this bill, if it should pass, will be that the husband will continue to have the right to go to the divorce courts of 'he provi60

Marriage and Divorce-Mr. Thorson

inces of western Canada and obtain a divorce there upon the ground of adultery committed by his wife subsequently to the celebration of the marriage, but the wife will not be able to get a divorce at all, on any grounds, in any of the courts of the provinces of western Canada. She will have to come to this parliament in order to obtain a divorce. That will be the result.

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LAB
LIB

Joseph Thorarinn Thorson

Liberal

Mr. THORSON:

If the hon. member for

East Calgary (Mr. Adshead) will follow me for a moment, I think he will agree with me when I have concluded my argument. It was laid down for a long time that the repeal of a statute did not revive the law that was in force at the time when the repealed statute was enacted. That rule was given statutory effect first in what, if my memory serves me aright, was called Lord Brougham's Act. At any rate, it is part of our own statutes and is set out in the Interpretation Act, section 19 of which enacts as follows:

Where any act or enactment is repealed, or where any regulation is revoked, then, unless the contrary intention appears, such repeal or revocation shall not, save as in this section otherwise provided,

(a) revive any act, enactment, regulation or thing not in force or existing at the time at which the repeal or revocation takes effect.

In other words, the repeal of the Divorce Act of 1925 will not revive the divorce law that existed in the four western provinces immediately prior to 1926.

The Divorce Act of 1925 repealed the existing law of divorce so far as western Canada was concerned, in so far as it related to the rights of the wife. It did not deal at all with the position or status of the husband. Consequently, when the Divorce Act of 1925 came into effect, it was the whole law on the subject with regard to the position of the wife. The provisions of the Divorce and Matrimonial Causes Act of 1857 were no longer in force so far as the wife was concerned. Consequently, if we repeal the Divorce Act of 1925, the wife has nothing left. The result will be that the Divorce and Matrimonial Causes Act of 1857 is in force in the four western provinces in so far as the husbands are concerned, but there is no law of divorce whatever in so far as the wives are concerned. Therefore, the husbands may continue to go to the courts of the western provinces and obtain divorces, but the wives must come to this parliament. Does anyone intend to pass legislation of that sort, drawing that distinction between men and women? That, I think, would be the result of the proposed legislation.

TMr. Thorson.]

It has only to be stated to the house to condemn it absolutely and entirely in the minds of hon. members.

The hon. member for Labelle (Mr. Bourassa) speaks frequently in the house with regard to matters of great national interest, and as a rule I may say that I find myself largely in agreement with what he says. But with deference to him and with the respect which is due from a younger to an older man, I do not agree with him as to his suggestion that the whole field of the marriage relationship should be assigned to the provinces. I think a transfer of jurisdiction of the nature which he suggests would be dangerous to the family, and therefore dangerous to the state. I do not agree that marriage is entirely a matter of civil rights. Surely those who believe in the sanctity of marriage, who believe in the family as the very keystone of the nation, must realize that there is more than merely civil right in marriage and the marriage status.

The constitutional position was very clearly put by the hon. member for Labelle. In respect of marriage and divorce parliament has exclusive jurisdiction to pass such legislation as it may desire, but out of that large field of jurisdiction there is carved what might be called a smaller field of jurisdiction, namely, that field which is called solemnization of marriage. The hon. member for Labelle spoke of that as being an absurd distribution of the field of legislation. With deference to him, I am of opinion that it was a very wise distribution of the field, because it took into consideration two varying concepts of marriage, particularly as regards the marriage ceremony. To some the marriage ceremony is nothing more than a civil contract, resulting of course, in a special status to the parties to that marriage. Many others in Canada regard the celebration of marriage as something more than a civil contract. They regard it as a sacrament. That difference of viewpoint, I suggest, was one of the reasons for assigning the field of jurisdiction relating to the solemnization of marriage to the provinces, so that they might enact such legislation as they desired in that regard.

With respect to jurisdiction as to the validity of marriage and jurisdiction as to divorce,

I think it is in the interests of Canada at large, as a nation, that that jurisdiction should continue to be vested in this parliament. Marriage is a matter of national interest and concern and divorce is a matter in which the nation at large is interested. It is not. a matter of local and provincial concern; it is a matter of national moment. My opinion, therefore, and I suggest it for what it is worth,

Marriage and Divorce-Mr. Church

is that the safety of the family and its continued sanctity as the very keystone of the nation is better safeguarded in this parliament than it would be if we were to assign jurisdiction over marriage and divorce to the various provinces. One province might have lax views with regard to divorce, and other provinces might enact divorce legislation that did not meet with general approval; but so long as the field of divorce jurisdiction rests with this parliament, I think that Canada may rest reasonably certain that the question will be dealt with in full appreciation of the national importance. of marriage and the family tie. I submit therefore, Mr. Speaker, that it would be injurious to the Canadian nation if jurisdiction over marriage and divorce were transferred from the federal parliament and were assigned to the provincial legislatures. The sanctity of the family as the central institution of the state is in better hands in this parliament than it would be if it were in the hands of the provinces. I cannot relinquish the view that marriage is a matter of national concern, and is not a matter of purely local or provincial interest. If it is a matter of national concern where does jurisdiction with regard to it more rightly belong than in the national parliament?

We have had a great deal of discussion on the subject of divorce this session and in the session preceding. All that discussion has been beneficial, I think m arousing the people of this country to the situation that exists. Those who voted for the divorce bill presented recently by the hon. member for Winnipeg North Centre (Mr. Woodsworth) are no less anxious to preserve the institution of marriage as one of fundamental institutions of the state than those who voted against it. Those who voted for the bill realized that divorce is an evil but that it is an institution which exists in Canada and was in existence in some of the provinces even before confederation. That is the situation. Then is it not the duty of this parliament to consider ways and means for administering the law of divorce as justly and as soundly as it is possible to do? That is the position of those who voted for the bill introduced by the hon. member for Winnipeg North Centre. We appreciate the views of many of the hon. members of this house who voted against the bill, their devotion to their church and their adherence to the principles laid down by their church. We respect their views and do not seek in any way to override them. We have our own views as to what is the proper machinery for dealing with the situation that actually does exist, and we cast our votes accordingly.

I have spoken at greater length perhaps than I ought to have done, but I desired to place before the house exactly what the purpose of this bill was. and what the consequences would be if it were enacted. I suggest to you in closing, Mr. Speaker, that the bill will not accomplish the purpose which the hon. member for Labelle (Mr. Bourassa) set forth, but that it will bring about a state of injustice to the married women of western Canada. I therefore urge that it ought not to be permitted to pass this honourable house.

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CON

Thomas Langton Church

Conservative (1867-1942)

Mr. T. L. CHURCH (Toronto Northwest):

There are three provinces which have not divorce courts at the present time, Ontario, Quebec and Prince Edward Island. When Ontario entered confederation, divorce was accepted as a principle of confederation. When the bill of the hon. member for Winnipeg North Centre (Mr. Woodsworth) came before the house last year, I urged that it should stand over for a year because the matter had not been discussed by any of the social or church organizations or the synods or the legislature of the province of Ontario, and I thought it would be well to learn the opinions of these organizations first. In the meantime the Anglican synod has passed a strong resolution in favour of a divorce court for Ontario, and so have the bar association.

The hon. member for Labelle (Mr. Bourassa), who has brought the present bill before the house, seems to have been very solicitous of the welfare of Ontario in the last year or two. I want to say to him that this bill will abolish divorce altogether for the provinces of Ontario, Quebec and Prince Edward Island, because it will convert chapter 127 of the revised statutes, known as an Act Respecting Marriage and Divorce, into a straight marriage act. His bill is really ultra vires of this parliament because under subsection 12 of section 92 of the British North America Act the solemnization of marriage comes exclusively within provincial jurisdiction. The hon. member for Labelle might just as well try to give Ontario a new education act as to try to dictate to Ontario what it shall do in a matter respecting purely civil rights in the province, namely marriage and divorce. This bill goes beyond the powers of this parliament. I think that the hon. member for Winnipeg North Centre (Mr. Woodsworth) deserves some credit for again bringing up his bill for a divorce court for Ontario. The people of the province of Ontario, like the people of other provinces, want to manage their own home affairs without any dictation from the other provinces. Divorce and education are local matters that should be left to the provinces to deal with. Who is asking for this

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Marriage and Divorce-Mr. Lapointe

particular bill in Ontario? Who wants to abolish divorce altogether in this province? Can the hon. member for Labelle name one organization in Ontario that is asking for his bill? To-day only the comparatively rich man in Ontario can obtain a divorce. I think this bill goes altogether too far, and I do not believe the people of Ontario will thank the member for Labelle for his assistance and advice. I think it would be far better if he would devote his attention to his own province regarding this particular matter. The next thing we know he will be giving Ontario a new separate school system! Let me tell him that the Catholics and Protestants of the city of Toronto all agree together and are all good citizens helping to build up a prosperous province.

I should Like to hear the Minister of Justice (Mr. Lapointe) on the question whether this parliament can do away with divorce, which was a contract made at confederation with the province of Ontario and the other provinces. At that time the principle of divorce was accepted, and this parliament was chosen as the body to deal with it. During the blockade of divorce bills last session the Prime Minister said that at this session the government would lay down a policy on this question of divorce. What is the policy of the government, and when are they to announce it? Are we going to have another blockade of divorce bills this session? The province of Ontario wants to manage its own home affairs without dictation from the hon. member for Labelle. He has no right to interfere with the educational system of the province of Ontario, and he has no right to seek to abolish divorce, which was accepted as a principle by Ontario and the other provinces at confederation. I think that before many days are over there will be a very strong expression of opinion in Ontario in favour of the bill for the dissolution of

marriage.

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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Hon. ERNEST LAPOINTE (Minister of Justice):

Mr. Speaker, at the outset I desire to say that I agree fully with both the hon. member for Labelle (Mr. Bourassa) and my hon. frieind from Winnipeg South Centre (Mr. Thorson) as to t'he jurisdiction of this parliament in divorce matters. As both these gentlemen have stated, the parliament ofCanada under the constitution is the only legislature which can deal with- the question of divorce; but, as I stated the. other night, it does not follow that the parliament ofCanada is bound to deal with divorce either

by granting divorce by way of private legislation or by establishing divorce courts in

the provinces. I fancy the purpose of my hon. friend from Labelle in introducing this bill is to leave matters as they were prior to the session of 1625; that is, until that date there was no public legislation on our statute books concerning divorce.

Topic:   MARRIAGE AND DIVORCE ACT
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IND
LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE:

Although under the constitution divorce is one of the subjects within the jurisdiction, of the federal parliament, this parliament at no time since confederation had enacted any statute to deal with divorce. Each application for divorce as it came here was considered on its merits and dealt with by a private bill. It was really a privilege granted to the parties. The bill of 1925 for the first time placed in the public legislation of Canada a statute dealing with divorce. At the time I took the position that I was opposed to the bill because of that fact, and also because I believed divorce to be a social evil. I believed then-as I believe today-that with that principle as a basis I could not consistently favour any measure which had the effect of increasing the. grounds of or the facilities for divorce. If I believe that some food is a poison, surely I cannot vote for any regulation for the distribution of that poison. That was my reason then; that is my reason to-day.

I fully agree with my hon. friend from Winnipeg South Centre as to the legal effect of the British legislation on divorce as it is to be applied in the three western provinces. Under the present law, it is the old Matrimonial Causes Act of England, enacted in 1857, with the amendments which have been made to that legislation from 1857 to 1870, which applies there. My hon. friend is quite right when he says that under that legislation the wife is not placed in, the same position as the husband as far as the grounds of divorce are concerned. That was the purpose of the bill introduced by the former member for Calgary, to correct what he thought was an anomaly, and that bill became law in 1925.

Now, my hon. friend from Labelle wants to have the only public legislation on divorce disappear from the statutes of Canada. Those of us who were opposed to that legislation in 1925, even my hon. friend from Winnipeg South Centre will admit, cannot but vote for the bill as introduced) in this house. But he says this bill, if it becomes law, will have the effect of repealing the legislation of 1925, but that the old situation, will not be revived, because, he says, the former legislation was repealed by that act. Well, I cannot agree

Marriage and Divorce-Miss Macphail

with my hon. friend in that regard. The act of 1925 had not the effect of repealing the old legislation in any way, far from it.

Topic:   MARRIAGE AND DIVORCE ACT
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LIB

Joseph Thorarinn Thorson

Liberal

Mr. THORSON:

May I ask the hon. minister a question? The act of 1925 does not in so many words repeal the pre-existing legislation; but does it not by necessary implication reipeal the old law in so far as it affects married women?

Topic:   MARRIAGE AND DIVORCE ACT
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March 13, 1930