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Social aspects of divorce legislation in British Columbia : an exploratory study of four major aspects… Boyd, Marion Carole 1966

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SOCIAL ASPECTS OF DIVORCE LEGISLATION IN BRITISH COLUMBIA An Exploratory Study of Four Major Aspects of Divorce L e g i s l a t i o n i n B r i t i s h Columbia and Their S o c i a l Implications with an Examination of Comparative L e g i s l a t i o n Suggesting Reforms by MARION CAROLE BOYD SUSAN JANE BREWSTER JOAN CATHERINE ELLINGHAM SUSAN BARCLAY GRAYSON Thesis Submitted i n P a r t i a l Fulfilment of the Requirements f o r the Degree of MASTER OF SOCIAL WORK i n the School of S o c i a l Work Accepted as conforming to the standard required f o r the degree of Master of S o c i a l Work School of S o c i a l Work 1966 The University of B r i t i s h Columbia In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall, make i t freely available for reference and study.' I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the Head of my Department or by his representatives. It i s understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. School of Social Work The University of British Columbia, Vancouver 8, Canada. Date ^PC^Nr^ In presenting t h i s thesis i n p a r t i a l f u l f i l m e n t of the requirements f o r an advanced degree at the University of B r i t i s h Columbia, I agree that the Li b r a r y s h a l l make i t f r e e l y a v a i l a b l e for reference and study. I further agree that permission f o r extensive copying of th i s thesis for scholarly purposes may be granted by the Head of my Department or by his representatives. It i s understood that copying or pu b l i c a t i o n of t h i s thesis for f i n a n c i a l gain s h a l l not be allowed without my written permission. School of Social Work The U n i v e r s i t y of B r i t i s h Columbia, Vancouver 8, Canada. CHAPTER 21. An Act to provide for Appeal to the Court of Appeal of the Province of British Columbia in Divorce and Matrimonial Causes. SHORT TITLE. 1. This Act may be cited as the British Columbia Divorce Short title-Appeals Act. 1937, c. 4, s. 1. 2. The Court of Appeal of the Province of British Appel late Columbia shall have jurisdiction to hear and determine mdivorce°n appeals from an order, judgment or decree of a court of the { ^ " f 4 " ' Province or a judge thereof having jurisdiction in divorce causes, and matrimonial causes. 1937, c. 4, s. 2. E D M O N D CLOUTIER, C.M.G., O.A.. D.SJP. QUEEN'S PRINTER A N D C O N T R O L L E R O F STATIONERY OTTAWA. 1952 443 R.S., 1952. C H A P T E R 176. An Act respecting Marriage and Divorce. S H O R T T I T L E . 1. This Act may be cited as the Marriage and Divorce s h o r t t i t l e . Act. R.S., c. 127, s. 1. M A R R I A G E . 2 . A marriage is not invalid merely because the woman Certa in a l id . is a sister of a deceased wife of the man, or a daughter " " h l v f * of a sister or brother of a deceased wife of the man. 1932, c. 10, s. 1. 3 . A marriage is not invalid merely because the man Certa in is a brother of a deceased husband of the woman or a son I^nvalid, of a brother or sister of a deceased husband of the woman. 1932, c. 10, s. 1. D I V O R C E . 4. In any court having jurisdiction to grant divorce R i g h t of a vinculo matrimonii any wife may commence an action divorce praying that her marriage may be dissolved on the ground husband for that her husband has since the celebration thereof been a u e r j -guilty of adultery. R.S., c. 127, s. 4. 5. If the court is satisfied by the evidence that the case Conditions of the wife has been proved, and does not find that thedTcreehlch wife has been in any manner accessory to or has connived pronounced, at the adultery of her husband, or that she has condoned the adultery complained of, or that .the action was com-menced and is prosecuted in collusion with the husband or the woman with whom he is alleged to have committed adultery, then the court shall pronounce a decree declaring such marriage to be dissolved; but the court is not bound to pronounce such decree if it finds that the wife during the marriage has been guilty of adultery, or if the wife in the ~ opinion of the court has been guilty of unreasonable delay 3733 in R.S., 1952. 2 C h a p . 176. Marriage and Divorce. in presenting or prosecuting such action or of cruelty towards the husband, or of having deserted or wilfully separated herself from the husband before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct as has conduced to the adultery. R.S., c. 127, s. 5. Rights 6. Nothing in sections 4 and 5 affects, restricts or takes preserve . a w a v a n y rjght 0 f a n v w j f e existing before the 27th day of June, 1925. R.S., c. 127, s. 6. E D M O N D CLOUTIER, C.M.G.. O.A., D.S.P. QUEEN'S PRINTER A N D C O N T R O L L E R O F STATIONERY OTTAWA, 1952 R.S., 1952. 3734 - i v -ABSTRACT The present study i s undertaken to explore s o c i a l aspects of divorce l e g i s l a t i o n i n B r i t i s h Columbia. The s p e c i f i c areas of procedures, grounds, domicile, and children of the marriage are examined as they would appear to have most si g n i f i c a n c e for s o c i a l welfare. The study attempts to draw attention to the relationship between law and human re l a t i o n s and to c r i t i c a l l y examine B r i t i s h Columbia divorce l e g i s l a t i o n , i t s functions and dysfunctions, i n terms of the i d e a l whereby the law acts as an enabling device aimed at problem-solving. Chapter I of the study reviews the h i s t o r i c a l s i g n i f i c a n c e of a t t i t u d e s , customs, and law s t i l l a f f e c t i n g divorce l e g i s -l a t i o n i n B r i t i s h Columbia and points out areas where they may presently be divorced from s o c i a l r e a l i t y . Chapter I I , I I I , IV, and V examine s p e c i f i c areas of divorce l e g i s l a t i o n and t h e i r s i g n i f i c a n c e i n modern society i n terms of a problem solving approach. Chapter VI involves a survey of expert opinion on matters pertaining to B r i t i s h Columbia divorce l e g i s l a t i o n . The purpose here i s to lend c r e d i b i l i t y to s o c i a l problems around divorce l e g i s l a t i o n outlined i n preceding chapters based on l i b r a r y research. Chapter VII i s a short survey of comparative divorce l e g i s l a t i o n i n a v a r i e t y of other j u r i s d i c t i o n s . This survey indicates possible solutions to some of the s o c i a l prob-lems a r i s i n g from l e g i s l a t i o n i n B r i t i s h Columbia. Throughout, the study method e s s e n t i a l l y involves l i b r a r y research with the exception of Chapter VI. A small sample of experts i n a v a r i e t y of f i e l d s interested i n the question of divorce were interviewed. Experts include clergymen, p o l i t i c i a n s , lawyers, judges, s o c i a l workers, etc., The interviews were structured by means of an interview schedule. I n i t i a l exploration carried out i n t h i s study indicates that the adversary nature j o f B r i t i s h Columbia divorce l e g i s -l a t i o n with i t s l i m i t e d grounds i s not conducive to problem-solving and appears instead to create new problems f o r those already suffering from damaged interpersonal r e l a t i o n s h i p s . A v a r i e t y of s o c i a l problems a r i s i n g from the l e g i s l a t i o n are more closely defined and documented by reading and expert opinion. Some of these s o c i a l problems involve the f a c t that i n undefended divorce cases the true facts are u n l i k e l y to emerge. - V -The adversary system prevents the parties concerned from taking a mature look at what caused the ma r i t a l breakdown. The law penalizes those who attempt r e c o n c i l i a t i o n due to factors involved i n condonation. Collusion bars also discourage discussion of matters of mutual concern o r serve to keep such discussion secret. In some cases even though a l l personal and s o c i a l functions of marriage have ceased to e x i s t , the l e g a l t i e must be maintained because neither partner has committed adultery o r i s w i l l i n g to engaged i n fraud. In other cases, those who have grounds f o r divorce are unable to obtain same because of l e g a l costs and d i f f i c u l t i e s i n estab l i s h i n g domicile or t r a v e l l i n g to a court that has j u r i s d i c t i o n . Scant i n v e s t i -gation of proposed plans f o r children of the marriage i s carried out unless the custody i s contested. In general, B r i t i s h Columbia divorce l e g i s l a t i o n does not provide f o r any i n v e s t i -gation concerning what r e a l l y causes a marriage to f a i l . I t provides no r e l i e f f o r many whose marriages have broken down beyond r e p a i r and no impetus towards problem-solving f o r others who might become reconciled or at l e a s t divorced with a minimum of secondary damage and with a recognition o f r e s p o n s i b i l i t i e s involving children. Divorce l e g i s l a t i o n i n other countries i s suggested as o f f e r i n g possible solutions f o r many of the problems inherent i n our own law. L i t e r a t u r e from the United States of America con-cerning Family-or Matrimonial Courts i s seen i n thi s study as the most f r u i t f u l . Hopefully then, the documentation of s o c i a l problems associated with B r i t i s h Columbia divorce l e g i s l a t i o n and suggested solutions f o r change w i l l aid others i n future re-search of a more s p e c i f i c nature. TABLE OF CONTENTS Page Introduction . . . . . . . . . . . . I Chapter I . An H i s t o r i c a l View of Divorce Ancient Greece. Ancient Rome. English C i v i l , Common and Canon Law. The Sacramental View of Marriage. The Reformation. Parliamentary Divorce. The Harwicke Act. Divorce and Matrimonial Causes Act of 1857, Canadian Adaptations. Resulting Problems. . . . . . . . . . . . . . 2 Chapter I I . Divorce Procedure Adversary Nature of Proceedings. Statement of Claim. Absolute Bars: Connivance, Condonation, Collusion. Costs. The Hearing. . . . . . . . . . . . . . . . . . . . 22 Chapter I I I . Grounds f o r Divorce Relationship of Marriage and Divorce Acts. Doctrine of the Matrimonial Offence. Description of Grounds. Breakdown theory and Modem Society. Protection of Public Interest. Absolute Bars. Discretionary Bars. Evidence and Proof of Adultery. Purpose and Function of the Law 38 Chapter IV. Domicile Rules f o r Determining Domicile. Wife has no Independent Domicile. Domicile Not Merely a Matter of B r i t h or Residence. Application to Modern Society. . . . . . . . . 54 Chapter V. Children of the Marriage Numbers Affected. J u r i s d i c t i o n . L e g i s l a t i o n and Precedents Af f e c t i n g Decisions. Parents Rights. Infor-mation Available to the Judge. Studies of Children from Broken Homes. Remarriage of Parents and Common Law Relationships. . . . . . . . . . . . . . . . . . . . . . . 62 Chapter VI. Expert Opinion Method. General Questions. Grounds. Procedures. Fi n a n c i a l Costs of Divorce Proceedings. Domicile. Children and Custody. Mo r a l i t y , the Church and Divorce. Conclusions and Comments • • • • • • • 79 - i i i -Page Chapter V I I . Comparative L e g i s l a t i o n with a View  to Reform Recent English Family Law. Divorce L e g i s l a t i o n i n A u s t r a l i a . Grounds. Fault. Family-Courts. . . . . . . 113 Chapter V I I I . Conclusion A Family Court: Implications f o r B r i t i s h Columbia. Legal Aid. Domicile. Consideration of Children. Grounds and Procedures . . . . . . . . . . . . . . . . . 141 Appendices: I . B. C. Rules Applicable to Divorce and Matrimonial Causes 147 I I . Divorce and Matrimonial Causes Act. Ghapter 118. 148 I I I . Equal Guardianship of Infants Act. Chapter 130, Sections 12 and 13. 149 IV. Bibliography 150 v i -ACKNOWLEDGEMENTS We wish to express our thanks and appreciation to those whose assistance and support made this thesis possible. We particularly acknowledge with thanks the encouragement and help of Mr. J. MacDonald and Dr. J. Crane, both of the School of Social Work, University of British Columbia. We also wish to acknowledge the contributions of those interviewed for expert opinion: Mr. John Stanton, Miss Norma Christie, lawyers; Dr. Ken Davies and Dr. J. R. Wilson, psychiatrists; Mr. Jim Karpoff and Mr. Derek Thompson, social workers; Father Roberts, priest; Rev. J. M, Taylor, minister; Mrs* Barbara Watts of the Canadian Law Reform Movement; and five others who wish to remain anonymous. SOCIAL ASPECTS OF DIVORCE LEGISLATION IN BRITISH COLUMBIA INTRODUCTION In working with the t o p i c , S o c i a l Aspects of Divorce L e g i s l a t i o n i n B r i t i s h Columbia, one cannot help but become aware of the s o c i a l problems a r i s i n g out of human relati o n s of which divorce i s one of the most f a r reaching. One also, however, becomes aware that to examine a l l aspects of the divorce s i t u -a t ion with i t s many l e g a l and s o c i a l implications i s a formidable task. Hence, i n t h i s study we are attempting to view four major areas of divorce: procedure, grounds, domicile and the custody and maintenance of children. We w i l l take into consideration that attitudes toward marriage and divorce are conditioned by the past and e s p e c i a l l y by the forces of r e l i g i o n . As a r e s u l t , the major areas outlined above w i l l be seen i n the l i g h t of h i s t o r y as w e l l as within the context of present l e g i s l a t i o n regarding them i n B r i t i s h Columbia, and the s o c i a l r e a l i t y within which they now e x i s t . I t i s hoped that an examination of the l i t e r a t u r e i n these areas and a survey of expert opinion on the subject w i l l help us c l a r i f y s o c i a l problems that presently e x i s t . I t i s not u n t i l these areas are defined that reforms can reasonably be suggested f o r t h e i r s o l u t i o n and/or future exploration of a more s p e c i f i c nature be i n i t i a t e d . CHAPTER I AN HISTORICAL VIEW OF DIVORCE Our law of marriage of which the law of divorce i s a branch i s derived from three great sources: the C i v i l Law, the Canon Law, and the Common Law. When looking at these sources i t i s most important to consider the undeniable eff e c t which the law has on human behaviour and conditions. "The i n t e r a c t i o n between law and s o c i a l behaviour and thought, i s a two-way i n t e r a c t i o n ; the l e g a l p r i n c i p l e s a f f e c t morals and behaviour, as well as vi c e versa."^ Hence, the law becomes an important s o c i a l factor. In an h i s t o r i c a l view of divorce, the in t e r p l a y between s o c i a l conditions and at t i t u d e s , and the law become readily apparent especially as i t i s possible to view the whole from a r e l a t i v e l y objective outsider's viewpoint. I t w i l l then be the objective of t h i s section of the paper to i l l u s t r a t e the development of attitudes and conditions surrounding divorce and to attempt to show how these a t t i t u d e s , customs and laws have persisted to the present day, sometimes causing s o c i a l problems when i n times past they performed a useful or acceptable function. Ian F. G. Baxter, "The Law of Domestic Relations," The  Canadian Bar Association, v o l . 36 (September, 1958), p. 299. In the p a t r i a r c h a l society of ancient Greece, women had few rights and very few i n regard to divorce. As i n most ancient s o c i a l systems, women held a po s i t i o n of subordinance to t h e i r mate. Marriage was a union mainly f o r the procreation of children and as a r e s u l t , the sexual function was of prime importance. Thus, grounds f o r divorce were related to the function of marriage and divorce was accepted s o c i a l l y when the woman whose business i t was to bear children was eith e r barren or adulterous. Since the husband had f a r more rights than the wife and h i s sexual behaviour was of less importance to the marriage, women were unable to get a divorce through some mis-deed of the husband. Furthermore, divorce did not have l e g a l connotations as i t does today. In Greece i t was mainly a private family a f f a i r and the granting of divorce was not under the j u r i s d i c t i o n of the state except i n the case of the wife's adultery. In ancient Rome (753-202 B.C.), the status of women and the place of divorce were not unlike that of Greece. By c i v i l law the wife was f i r s t owned by her husband and l a t e r looked upon as being i n the same l e g a l p o s i t i o n as h i s c h i l d . At no time did the Roman wife have property i n the children of her marriage. I t i s i n t h i s s i t u a t i o n that the remarks of Blackstone are rooted: By marriage, the husband and wife are one person i n law; that i s , the very being or l e g a l existence of the woman i s suspended during the marriage, or at le a s t i s incorporated or consolidated into that of her husband, under whose wing, protection and cover she performs everything.2 This l e g a l unity which began i n the s o c i a l customs of Greece and Rome persisted u n t i l the 19th century i n England and s t i l l e x i s ts today i n the form of domicile laws whereby a married woman has no separate domicile from her husband despite the fact they may be j u d i c i a l l y separated or she may have been deserted and knows not of his whereabouts. Again though, i n ancient Rome these p r i n -c i p l e s developed i n s o c i a l customs and the state was not involved i n marriage and divorce. As divorce became more frequent, however, the Romans l e g i s l a t e d effects on property rights and a body of c i v i l law began to grow. Also, rights of divorce i n t h i s p a t r i a r c h a l society lay exclusively with the husband who was the only person recognized by law and who, as was stated e a r l i e r , l i t e r a l l y owned his wife and children. The grounds for divorce acceptable to society were adultery, preparing of poisons, and f a l s i f i c a t i o n of keys, and although divorce was l e g a l l y u nrestricted, s o c i a l controls were s u f f i c i e n t to l i m i t blatant abuses of accepted patterns. H. Clarke, S o c i a l L e g i s l a t i o n . New York, Appleton-Century-Crofts, 1957, p. 64. - 5 -Thus up to and including the advent of C h r i s t i a n i t y , marriage was considered almost s o l e l y a s o c i a l i n s t i t u t i o n rather than a l e g a l one and this resulted i n the b e l i e f which i s s t i l l held by some people today that: the duties which are incumbant upon marriage partners have t h e i r guarantee and sanction i n the moral or r e l i g i o u s conscience of the parties i n established tr a d i t i o n s and i n s o c i a l conventions. Only i n mar-gi n a l situations does the law step i n to supplement the sanctions of the mores and to c l a r i f y doubtful situations.3 The c i v i l law of Rome during the period of early C h r i s t i a n i t y was s t i l l not deeply involved i n divorce l e g i s l a t i o n . I t did i n c i d e n t l y , however, operate on two maxims: 1) I f the parties are not l i v i n g together the marriage cannot be said to e x i s t , and 2) I f marriages are made by mutual a f f e c t i o n i t i s only r i g h t when that a f f e c t i o n no longer exists that they should be dissolved by mutual consent. The nature of marriage and the a v a i l a b i l i t y and grounds f o r divorce then coincided. No p a r t i c u l a r form of marriage was re-quired by c i v i l law and mutual consent was adequate reason f o r divorce. Hence, the idea of mutual consent rather than a system Rheinstein, "Trends i n Marriage and Divorce Law of Western Countries," Law and Contemporary S o c i a l Problems, ed. R. Kramer, Winter, 1953, p. 7. of fault on the part of one and innocence on the part of the other evolved here and continues to be discussed today i n legal circles. In England a tradition of common law and also the adapt-ation of Roman c i v i l law took place. By this time (527-565 A.D.) Roman marriage laws were well settled. Christians also of this time no longer held that marriage and divorce should be a private matter. Through a process of evolution, the marriage ceremony became religious i n nature and a function of the clergy. Mar-riage was uniformly contracted and received by the Church. Although during Saxon times divorce was freely allowed and from 668-698 A.D. the Archbishop of Canterbury allowed divorce on the grounds of desertion, adultery, impotence, relationship, long absence and captivity, religion was beginning to exert an i n -fluence in a new direction. The power of the emperors in Italy was declining and a succession of strong Popes made effective use of the prevailing anarchy by consolidating their power. Their decisions became Canon law and i t spread as Christianity rapidly spread and bishops gained huge areas of land and acquired power. These bishops administered law in their local courts. They became more and more powerful and as they defined more areas as being of sp i r i t u a l significance their influence grew. Royal courts accepted them and enforced ecclesiastical sentences. In - 7 -800 A.D. Charlemagne was crowned by the Pope and became the f i r s t temporal leader to proclaim marriage as indi s s o l u b l e and divprce cr i m i n a l . Hence, a new era i n the hi s t o r y of divorce began des-p i t e the fa c t that not u n t i l 1164, was there a clear formulation of the now seven sacraments, marriage being the l a s t to be accepted. The concept of marriage being a sacrament i s one that remains with us today despite the fact that marriage i s also con-sidered a c i v i l contract. Canon lawyers were the f i r s t to proclaim the sacramental implications of marriage when they said that marriage represented a union between Chri s t and Church according to the analogy of St. Paul. Marriage was a state not a contract; a permanent relationship that could not be destroyed by man. So high a view of marriage was held by the Church that a non-Christian ceremony or a purely l e g a l one was, and s t i l l i s , regarded as equally v a l i d upon the parties concerned and should therefore be governed by the same rules.4 Thus, as the Church gained j u r i s d i c t i o n over matters of marriage and divorce the sacramental view had far-reaching implications. The b e l i e f that marriage i s an i n d e l i b l e sacrament started when the Canon lawyers attempted to translate parables and R. S. W. P o l l a r d , The Problem of Divorce. London, C. A. Watts and Co., 1958, p. 457" - 8 -analogies of the B i b l e into p o s i t i v e law. In the Gospel accor-ding to St. Mark, Chapt. X, v.6-12, Jesus i s said to p r o h i b i t divorce. Unfortunately, the gospels are not consistent and " i n Mathew V, v.32 and Mathew VI, v.9, Jesus i s said to qu a l i f y his prohibitions of divorce i n the case of for n i c a t i o n but p r o h i b i t remarriage because the sacrament i s i n d e l i b l e 'for God never dies'.""' I t i s the general opinion of scholars that the q u a l i -f i c a t i o n was added a f t e r Jesus' death although early i n the his t o r y of the C h r i s t i a n church. There are two opinions why th i s q u a l i f i c a t i o n was added. One group says i t i s because the Jews to whom Jesus was tal k i n g believed adultery or fo r n i c a t i o n meant automatically a marriage was dissolved. The other group believes that the early Church recognized some form of divorce was needed and added the q u a l i f i c a t i o n believing i t was not i n -consistent with Jesus' teaching. Furthermore, the i n t e r p r e t a t i o n of f o r n i c a t i o n or adultery d i f f e r s today within d i f f e r e n t r e l i -gious groups. Some believe i t was mentioned as an example, others that i t allows divorce on one ground only. Hence we see the strong r e l i g i o u s feelings associated i n modem society with divorce reform. S. B. K i t c h i n , A History of Divorce. London, Chapman and H a l l Limited, 1912, p. 64. - 9 -The Canon lawyers, i t appears, concluded that the scriptures mean that a marriage cannot be erased as i t i s a union created by God not man. They d i d , however, consider Mathew XIX, v. 11 and 12, where Jesus contemplates that a l l men cannot receive His doctrines and suggests that human needs must be taken into consideration. This was interpreted by the Church to mean that a j u d i c i a l separation was permissible. Hence, j u d i c i a l separation was granted on grounds of adultery ( e i t h e r physical or " s p i r i t u a l " - " s p i r i t u a l adultery" meaning one of the marriage partners leaving the Roman Catholic f a i t h or pre-venting the other partner from p r a c t i c i n g i t ) , or i f one partner wished to take r e l i g i o u s vows. Remarriage on the part of either partner was not permitted due to the sacramental nature of marriage. The concept of f a u l t then developed when j u d i c i a l separations were not granted unless one party was g u i l t y and the other innocent. "A j u d i c i a l separation became a punishment f o r 6 the g u i l t y and a reward f o r the innocent." Later, when the Church had more power the grounds f o r divorce grew. By the 10th century two types of "divorce" existed: annulment and separation. The grounds were then extended to include cruelty and desertion. By the 12th century the church M. Rheinstein, "Trends i n Marriage and Divorce Law of Western Countries", Law and Contemporary S o c i a l Problems, ed. R. Kramer, Winter, 1953i p. 3. - 10 -had undisputed j u r i s d i c t i o n over divorce and t h e i r courts were administered by Canon law. Common law courts were involved i n so f a r as they determined property r i g h t s and thus frequently had to determine i f there had been a marriage or not. I t was here the defences of c o l l u s i o n , connivance and condonation developed as i t was an established p r i n c i p l e that one had to come to court "with clean hands". These absolute defences are incorporated into our present laws while the discretionary bars of adultery on the part of the p l a i n t i f f , delay, c r u e l t y , desertion and conduct conducing developed as an offshoot of the great discretionary powers held by the e c c l e s i a s t i c a l o f f i c i a l s i n t h e i r courts. As time went on the E c c l e s i a s t i c a l courts gained more power and t h e i r j u r i s d i c t i o n spread. This was the r e s u l t of "the astounding movement i n the thirteenth century by which the church remodeled a l l the ideals and i n s t i t u t i o n s of the age and i n t e -grated a l l s o c i a l i nterests into a system of which i t made i t s e l f the center and c o n t r o l l i n g authority."^ Marriage outside the Church had been referred to as a common law marriage and was considered v a l i d but i l l e g a l by the Church i n the sense that a r e s t r i c t i o n s v a l i d marriage existed but that ecclesiastical/were imposed upon ^ J . P. Lichtenberger, Divorce: A Study i n S o c i a l Causation. New York and London, King and Son, 1909, p. 55. - l i -the parties since the church had not blessed the union. In 1563 the Council of Trent maintained a l l marriages were "void f o r both c i v i l and e c c l e s i a s t i c a l purposes i f they were not cele-brated i n the presence of witnesses and a representative of the g Church." They thus denied j u r i s d i c t i o n of the common law courts and although t h i s was not made law, i t led to c o n f l i c t . Further-more, the Church, now growing corrupt, began to enlarge the grounds f o r annulment u n t i l i t became possible f o r any man (but not woman) to secure a "divorce" i f he could spare the money for the cost of a dispensation. "Divorce which could only be obtained through crime and disgrace, was treated as i t s e l f criminal and disgraceful i n a l l cases, and th i s t r a d i t i o n i s s t i l l f i r m l y 9 embedded i n law and certain sectors of public opinion." The Church p o s i t i o n was formalized i n Canon law and annulment was made only by formal decree. Legal regulation of marriage was i n ef f e c t . The period of the Reformation grew i n response to the corrupt power of the e c c l e s i a s t i c s . I t was b a s i c a l l y "a r e l i -gious movement opposed to the c e n t r a l i z a t i o n of e c c l e s i a s t i c a l power i n the Pope i n Rome."^ According to S. B. K i t c h i n , " the g H.I. Clarke, S o c i a l L e g i s l a t i o n . New York, Appleton-Century Inc., 1957j p. 47. 9 S.B. K i t c h i n , A History of Divorce. London, Chapman and H a l l Ltd., 1912, p. 123. ^H.I. Clarke, p. 51. "•S.B. K i t c h i n . - 12 -eff e c t of the Reformation upon the Canon law was very s l i g h t : Dogma succeeded dogma and the divine r i g h t of Kings under the influence of the Reformed ministers was substituted for that of the Pope. A l l that the Reformation achieved was, by s p l i t t i n g up the power of the Churches and making r e l i g i o u s t o l e r a t i o n possible at a future time, gradually to secularize marriage and divorce.12 Luther i n p a r t i c u l a r was responsible f o r abandoning the concept that marriage i s a sacrament and i n so doing paved the way to transfer j u r i s d i c t i o n to c i v i l courts. I t was during the Reformation that ideas changed but i t was many years before l e g i s -l a t i o n caught up. Henry VTII's demand f o r a divorce i n th i s era was the impetus that led to England's r e v o l t from the Roman Catholic church. Henry was unable to get a divorce i n the E c c l e s i a s t i c a l courts but obtained one i n the c i v i l courts. Shortly there-a f t e r , parliament threw o f f a l l papal j u r i s d i c t i o n over England by l e g i s l a t i n g the obedience of the clergy to the King. Henry t r i e d to press for other l i b e r a l i z i n g reforms during h i s time but died before they were passed i n parliament. He was attempting through "The Reform of E c c l e s i a s t i c a l Laws" to extend the grounds fo r divorce to include adultery, desertion, crue l t y , absence, and deadly hatred between spouses. In accordance with the f a u l t S.B. K i t c h i n , p. 122. - 13 -theory the innocent party would be free to remarry while the g u i l t y party would be subject to penalties. These reforms did not become law and a state of chaos i n divorce l e g i s l a t i o n continued f o r some time. The struggle between ideologies propounding the sacra-mental versus contractual theories of marriage continued. Reformers began to d i r e c t t h e i r attacks not only against the character of marriage but against the e c c l e s i a s t i c a l j u r i s d i c t i o n i n matrimonial a f f a i r s on the ground that they were purely temporal matters. During the protectorship of O l i v e r Cromwell, the doctrines of the Reformation were p a r t l y incorporated into l e g i s l a t i o n with the passage of the C i v i l Marriage Act of 1653 which made a c i v i l marriage ceremony obligatory f o r a l l . However, i n 1661 King Charles was restored, the Act repealed and not re-enacted u n t i l the mid-1700's. Divorce from the l a t e 1600's up u n t i l 1857 was handled i n parliament. A man f i r s t had to obtain a decree of j u d i c i a l separation from the e c c l e s i a s t i c a l courts, a judgment f o r damages from the Common Law courts and "then armed with these judgments the p e t i t i o n e r could go to parliament and ask f o r a b i l l of 13 divorce." In practice, t h i s arrangement was not open to women H. L. Cartwright, The Law of Divorce i n Canada. Toronto, Canadian Law-Listing Publishing-Co., 1945, p. 6. - 14 -nor to the poor for i t was most expensive. I n t e r e s t i n g l y , this i n s t i t u t i o n of executive divorce by the sovereign became the basis for that practice of divorce by the l e g i s l a t u r e which s t i l l survives i n Canada for the Provinces of Quebec and Newfoundland. Gradually, l e g i s l a t i o n i n England was inspired by the philosophy of enlightenment and individualism "which grew up from the 16th century to f i n d i t s c l a s s i c a l expression i n the 14 18th century through the works of Locke, Kant, and others." A b e l i e f i n the inalienable r i g h t of individuals to the pursuit of happiness encouraged the p r i n c i p l e that marriage was a c i v i l contract that could be dissolved. Thus, i n 1753, the Harwicke Act was passed and gave expression to the f o r m a l i t i e s of the contract theory. I t states i n part: that a l l marriages except those of Quakers, Jews and members of the royal family were to be solemnized only a f t e r publication of banns on the securing of a license and a ceremony performed i n an Anglican church by Anglican clergy i n the presence of two or more witnesses.15 And i n 1836 a b i l l permitting c i v i l marriage f o r those un w i l l i n g to accept established r i t e s eliminated the Anglican bias of the f i r s t b i l l . Together these acts constitute our present laws on marriage and exemplify the p r i n c i p l e of formal, public marriage M. Rheinstein, p. 12. *H. I. Clarke, p. 57. - 15 -contracts. In 1857, the English Divorce and Matrimonial Causes Act was passed and since B r i t i s h Columbia adopted the law of England as of November 19th, 1858, further B r i t i s h developments are of l i t t l e i n t e r e s t except i n so f a r as they i l l u s t r a t e a trend toward more l i b e r a l laws whereas i n Canada no such development has taken place. The law of 1857 was passed a f t e r much opposi-t i o n i n parliament on r e l i g i o u s grounds. The Act transferred divorce and matrimonial j u r i s d i c t i o n to an e n t i r e l y new C i v i l court - "The Court for Divorce and Matrimonial Causes." This court could grant divorce f o r the husband i f h i s wife was g u i l t y of adultery a f t e r marriage and f o r the wife upon proving adultery a f t e r marriage coupled with c e r t a i n other s p e c i f i e d matrimonial offences on the part of her husband. I t provided for remarriage of e i t h e r party a f t e r a divorce although there would be no com-pulsion on churches to perform a second marriage. Furthermore, provision was made fo r j u d i c i a l separations on grounds of adultery, crue l t y , or two years' desertion. In 1925, the Can-adian Parliament enacted the Marriage and Divorce Act which provided that adultery alone was a s u f f i c i e n t ground f o r a wife to be granted divorce. The wife could sue on the old e c c l e s i -a s t i c a l grounds of sodomy and b e s t i a l i t y , as w e l l . P e t i t i o n s were to be heard by three judges and t h i s led to a curious result s when the law was adopted by B r i t i s h Columbia. Provision was made i n the Act for an appeal from these three judges - 16 -to the House of Lords. However, i n B r i t i s h Columbia the powers afforded the three judges were granted to a single judge and no provision was made for an appeal. Since an appeal cannot e x i s t apart from express enactment i t was held p r i o r to 1937 that 16 there was no appeal. In 1937 an Act was passed giving the 17 r i g h t of appeal. The Divorce and Matrimonial Causes Act of 1857 continued the absolute bars of c o l l u s i o n , connivance and condonation, derived from p r i n c i p l e s of the early Common Law courts. Also included were discretionary bars such as adultery on the part of the p e t i t i o n e r , unreasonable delay i n presenting the p e t i t i o n , cruelty of the p e t i t i o n e r towards the other party to the marriage, desertion p r i o r to the adultery, and w i l f u l neglect or miscon-duct as conduced to adultery. The broad d i s c r e t i o n of the court, derived from the powerful E c c l e s i a s t i c a l courts, has resulted i n changes i n j u d i c i a l attitudes during the present century to take into account the welfare of both p a r t i e s , of t h i r d p a r t i e s , and 18 of society as a whole. The Act of 1857 also gave power to the court to make orders as to the custody of children "as i t may deem j u s t and 1 6Brown vs. Brown (1909), 14 B.C.R. 142 17 Statutes of Canada. 1937, C. 4. 18Howe vs. Howe, 1937, O.R. 57 and Blunt vs. Blunt, 1943, 2 A l l E.R. 76. - 17 -19 proper". There i s , however, no ob l i g a t i o n on the part of the court to make such orders. We would wonder what ef f e c t such vague l e g i s l a t i o n has on the welfare of children. When the 1857 law was adopted by B r i t i s h Columbia i t was subject to any relevant modifications made by the Dominion Parliament or P r o v i n c i a l Legislatures within t h e i r respective j u r i s d i c t i o n s . P r a c t i c a l l y the only modification, according to 20 Cartwright, i s the Dominion Act of 1925 allowing marriage with a deceased wife's s i s t e r or a deceased husband's brother and abolishing the double standard i n respect of matrimonial offences. By the B.N.A. Act (Sections 91-92), the subject of "Marriage and Divorce" i s within the purview of the Parliament of Canada; that of the "Solemnization of Marriage" i n the province i s within the purview of the p r o v i n c i a l l e g i s l a t u r e s . Thus, because the Federal government did not pass a general Divorce Act, the laws which were i n force i n the various pro-vinces at the time they entered Confederation have been allowed to remain with the r e s u l t that each province i s somewhat l i k e a separate country i n respect to divorce l e g i s l a t i o n . An excep-t i o n here i s Ontario. In the view of some, " i t i s preposterous See Appendix I . 2 0H. L. Cartwright, The Law of Divorce i n Canada. Toronto, Canadian Law L i s t i n g Publishing Co., 1945. - 18 -that l e g i s l a t i o n i n B r i t i s h Columbia should any longer stagnate at the l e v e l reached by England i n 1857 espe c i a l l y i n view of the fac t that the reform then achieved was seen by men of v i s i o n to 21 be woefully inadequate." In the chapters to follow, an attempt w i l l be made to examine present l e g i s l a t i o n and incumbent s o c i a l problems within the areas of procedure, grounds, domicile, and children of the marriage. Summarizing the h i s t o r i c a l view of divorce l e g i s l a t i o n can, we believe, point out broad areas where one might expect to meet with problems. F i r s t , we would suggest that the continued u t i l i z a t i o n of a law made i n 1857 fo r use i n B r i t i s h Columbia i n 1966 i s l i k e l y to create d i f f i c u l t i e s to the extent that the s o c i a l r e a l i t y f o r which i t was adopted no longer pertains. J . P. Lichtenberger notes i n r e l a t i o n to the influence of r e l i g i o u s b e l i e f on the Act that: throughout the entire course of hi s t o r y r e l i g i o n has been one of the strong and determining factors i n human conduct. B e l i e f s which have obtained the reinforcement of r e l i g i o u s sanction have exerted a c o n t r o l l i n g influence i n i n d i -v i d u a l action, and s o c i a l customs, which have been invested with a r e l i g i o u s nature, have been determinative i n s o c i a l conduct.22 C. B. Reynolds, Canada's Need f o r Divorce Reform. Vancouver, Wrigley P r i n t i n g Co., 1953, p. 295. 22 J . P. Lichtenberger, Divorce: A Study i n S o c i a l Causation. New York and London, P. S. King and Son* 1909, p. 190. -=19 -Generally, r e l i g i o n has been a strong conservative force and ce r t a i n l y was i n 1857 when the Act i n question was passed. However, i n recent times the r e s t r a i n t s of r e l i g i o u s i n -fluence have been somewhat modified. The Age of Reason has replaced the Age of Dogma, divorce rates have clim^d due to the nature of modern s o c i a l and i n t e l l e c t u a l l i f e . Women, no longer, f o r example, are accepting an i n f e r i o r status to men. Thus, p r i n c i p l e s such as the p r i n c i p l e that a married woman i s i n -capable of acquiring a domicile independent from that of her husband are i n t e l l e c t u a l l y hard to j u s t i f y when women no longer are chattels. And when th i s p r i n c i p l e i s applied to a s o c i a l system where high rates of mobility are accepted, the law i s not only hard to j u s t i f y but hard to u t i l i z e . This i s only one example then of the problems created by transplanting laws into d i f f e r e n t s o c i a l systems. " A t h i r d reason why r e l i g i o u s conservatism i s being modi-f i e d i s that e t h i c a l concepts are being revised. When the Act of 1857 was passed the impact of l i b e r a l i s m was nowhere as great as i t i s today while r e l i g i o u s sanctions were stronger. Today people tend to believe that marriage was made fo r man and not man for marriage. The moral value of marriage i s seen as con-s i s t i n g i n the mutual happiness secured by those who enter into i t and, i n general, there are higher expectations of domestic - 20 -happiness. Thus, when we combine t h i s with the increase i n general education and the advances i n p s y c h i a t r i c and psycho-l o g i c a l learning that are leading people to the b e l i e f that human relationships involve p a r t i c i p a t i o n and r e s p o n s i b i l i t y on the part of both parties involved, people are seeing divorce as a " r i g h t " should they be unhappy and are r e j e c t i n g the idea that any one person i s e n t i r e l y to blame should unhappiness occur. Hence, when we place the Act of 1857 into t h i s new and changing e t h i c a l framework we would expect to discover more problems. The p r i n c i p l e of the matrimonial offence i s no longer acceptable to large groups of people and does not stand up to c r i t i c a l scrutiny. Nonetheless, "the professional j u d i c i a r y c l i n g resolutely to the idea of divorce as necessarily involving 23 a t r i a b l e issue of r i g h t and wrong, of g u i l t and innocence." This p r i n c i p l e seems highly incompatible with that of j o i n t res-p o n s i b i l i t y for m a r i t a l breakdown and the grounds of adultery are now seen by many as the symptom not cause of a breakdown i n r e l a t i o n s h i p . I f , then, on the one hand we have large groups of people involved i n a s o c i a l r e a l i t y which involves the breakdown of L. N. Brown, "English Family Law Since the Royal Commission," University of Toronto Law Review, v o l . 14, 1961, p. 64. - 21 -marriages from which the parties f e e l j u s t i f i e d i n escaping, yet, on the other hand they are governed by an adversary system of law with very l i m i t e d grounds f o r securing divorce, one would expect to f i n d a discrepancy between the s t r i c t laws and actual practice as refl e c t e d i n more or less generally indulged i n c o l l u s i v e practices. Furthermore, an adversary system pre-supposes that the defendant should prevent the p l a i n t i f f from succeeding by bringing out the true facts and i n s i s t i n g on the best l e g a l construction of these f a c t s . Where t h i s does not hold true, as i n the case of undefended divorce actions, the ration a l e f o r the adversary system i s undermined with a further lessening of respect f o r the laws i n question. In the following chapters a more thorough examination i n the areas of procedures, grounds, domicile, and children of the marriage w i l l take place. An attempt w i l l be made i n more d e t a i l to r e l a t e the divorce l e g i s l a t i o n and practices i n B r i t i s h Columbia to s o c i a l r e a l i t y and point up and define s p e c i f i c problems a r i s i n g . A f t e r examining divorce from an h i s t o r i c a l point of view hopefully the o r i g i n s , both s o c i a l and r e l i g i o u s , of a t t i t u d e s , customs, and laws s t i l l a f f e c t i n g divorce l e g i s -l a t i o n w i l l be more apparent. When aware of h i s t o r i c a l reasons f o r t h e i r existence, one i s i n a better p o s i t i o n to say whether such reasons are obsolete or not i n B r i t i s h Columbia, 1966. CHAPTER I I DIVORCE PROCEDURE In B r i t i s h Columbia, the Divorce and Matrimonial Causes Act*" i s the substantive l e g i s l a t i o n that determines the e l i g i -b i l i t y of a person to i n s t i t u t e a divorce action. Order 60 of the B r i t i s h Columbia Supreme Court Rules applicable to Divorce 2 and Matrimonial Causes lays down the steps that must be gone through to obtain the divorce. Copies of both have been attached as Appendix I and Appendix I I respectively. Adversary Nature of Proceeding I t w i l l be noted that i n the divorce r u l e s , section 2 c l e a r l y states the adversary nature of the proceeding. Action i s started by a w r i t of summons covering an intended action 3 between a " p l a i n t i f f " and a "defendant". Section 4(a) of the rules further enlarges on the f a u l t theory of the proceeding by st a t i n g that every party with whom adultery i s alleged must be The Divorce and Matrimonial Causes Act. R.S.B.C., I960, ch. 118. 2 Order 60 of the B r i t i s h Columbia Supreme Court Rules applicable to Divorce and Matrimonial Causes. 3 The Divorce Rules. Rule 2. - 23 -made a co-defendant i n the s u i t . I f the adulterer i s unknown, the judge may allow the issuing of the w r i t without adding a 4 co-defendant. However, he must be s a t i s f i e d a l l reasonable e f f o r t s were made to i d e n t i f y the adulterer and may specify that the p l a i n t i f f continue to search f o r the co-defendant's i d e n t i t y and amend his w r i t i f such person i s found. Besides being an adversary proceeding, divorce i s a c i v i l 6 action i n Canada. This means that the defendant i s not obliged to attend the hearing or to defend the action. The judge i s bound to decide the case within the t r a d i t i o n a l framework of evidence presented and heard. The contents of the statement of claim define the l i m i t s of the issues to be dealt with. Besides the points covered, the judge has no o b l i g a t i o n to ask other questions around the breakup of the marriage. In cases where d i s c r e t i o n i s asked by reason of the p l a i n t i f f ' s adultery, the judge may d i r e c t some questions to the p l a i n t i f f but th i s i s a rare occurrence. As the vast majority of divorce cases are undefended and the t r i a l conducted without the defendant present, The Divorce Rules. Rules 4<a)-5(l). 3 I b i d . . Rule 5(3). ^ • J . D. Payne, ed., Power on Divorce. Calgary, Burroughs, 1964, p. 24. - 24 -one can see that the " i n n o c e n t " p l a i n t i f f ' S story has a good chance of being accepted without being challenged. Although most judges and lawyers are w e l l aware that a marriage breaks down usually because of the in t e r a c t i o n of two people, rather than the f a u l t of one, the system of hearing divorce cases negates this f a c t . Wives or husbands wishing to free themselves of a marriage grown burdensome, may present to the courts a picture of t h e i r own purity and t h e i r spouses' v e n a l i t y and no attempt i s made to help both parties face t h e i r r e s p o n s i b i l i t i e s i n the mari t a l breakdown. Although the " f a u l t " system of t r i a l i s c a r e f u l l y set up to prevent "divorce by mutual consent", i t s p r a c t i c a l application i n undefended cases makes "divorce by mutual consent" very l i k e l y . The present laws encourage only purported compliance with them.7 The r e s t r i c t i v e nature of the law i s further j u s -t i f i e d as necessary f o r making people s t i c k to t h e i r marriage and thus preserving i t s san c t i t y . However, as one expert has g sa i d , divorce i s not a disease but a cure f o r a disease. In i t s present form i t i s a cure that does not permit the parties or the community to take a mature look at what has caused the breakdown. 7 J . D. Payne, p. 27. 8 I b i d . , p. 28. - 25 -Statement of Claim The r u l e s , a f t e r having established the adversary-nature of the proceedings, set out the items that must be 9 contained i n the statement of claim. I t i s on th i s statement, together with any statement of defense, that might be submitted, that the t r i a l i s based. The statement of claim, among other things, sets for t h the date and the place of the marriage, the domicile of the husband, the names of the children of the marriage, and other proceedings i n s t i t u t e d with respect to t h i s marriage. The matrimonial offense must be stated and co-defendant named. I f the p l a i n t i f f wishes to claim custody of the chil d r e n , alimony, or maintenance, the facts on which such claims are based must be set f o r t h . Any separation agreement or f i n a n c i a l arrangements between the couple must be sp e c i f i e d . The statement of claim ends with a paragraph requesting d i s s o l u t i o n of the marriage, together with any other r e l i e f claimed such as: claim f o r custody of the children; claim f or interim alimony or maintenance; or permanent alimony or maintenance; claim f o r damages or costs; and any request that the court exercise i t s d i s c r e t i o n f o r the p l a i n t i f f . The Divorce Rules. Rule 11(1) and (2). - 26 -The statement of claim must be supported by the p l a i n -t i f f ' s a f f i d a v i t v e r i f y i n g the truth of the facts alleged. The p l a i n t i f f also states i n h i s or her a f f i d a v i t that no c o l l u s i o n or connivance has occurred. In the event that the p l a i n t i f f has commited adultery, grounds on which the discre-t i o n of the court i s to be asked are placed i n a sealed envelope and given to the judge. I t i s open to h i s inspection and the inspection of the Attorney-General, but no one else unless the judge so orders.*"^ The statement of claim must be delivered to the defendant personally and any amendments must also be delivered.*"*' The 12 defendant may f i l e a counterclaim. The form of the t r i a l , 13 usually by one judge, i s set down i n rules 18-21. Rules 22-25 permit the Attorney-General to intervene at any stage of the 14 proceedings to show fraud or c o l l u s i o n . Rules 26-28 pertain 15 to mentally i l l and infant p a r t i e s . Rules 29-30 deal with the 16 recovery of the wife's costs. Rules 32-35 deal with alimony and maintenance.*"7 The Divorce Rules. Rule 13. I b i d . . Rules 14-16. I b i d . , Rule 17. I b i d . , Rule 18-20. I b i d . , Rules 22-25. I b i d . , Rules 26-28. I b i d . . Rules 29-30. - 27 -Absolute Bars The most d i f f i c u l t procedural problem f o r couples seeking a divorce are the absolute bars of connivance, condonation and c o l l u s i o n . I f the judge suspects any of these, he i s bound to investigate and to dismiss the s u i t i f his suspicion proves correct. Let us examine each of these absolute bars separately. Connivance Connivance occurs when the adultery of one spouse i s caused by or knowingly, w i l f u l l y or r e c k l e s s l y permitted by the 18 other spouse as an assessory. To constitute connivance, the action must precede the adultery and the p l a i n t i f f ' s state of mind must be one of "corrupt intent" i n promoting or encouraging 19 the adultery. The case of Hechter vs. Hechter and Cohen, although a Manitoba case, i l l u s t r a t e s the courts current position on con-nivance. I t elaborates on the foregoing d e f i n i t i o n by holding that a spouse can watch her partner and even lay a trap to catch the partner i n the act of adultery provided she has reasonable grounds for suspecting the spouse of i n f i d e l i t y and that she 1 7The Divorce Rules. Rules 32-35. 18 J . D. Payne, p. 65, 1 9Hechter vs. Hechter and Cohen, (1958) 12 D.L.R. (2d) 326. - 28 -20 does not desire the adultery to occur. I t i s i n t e r e s t i n g to speculate on the results where a j u d i c i a l f i n d i n g of connivance i s made. In these cases, one spouse has desired the other to commit adultery and placed the opportunity i n hi s path. The tempted spouse acquieses and divorce proceedings are commenced on the evidence so obtained. I f the adulterous spouse wishes to plead connivance to "cl e a r h i s name" and the conniving spouse has not committed adultery, the adulterous spouse's v i c t o r y i s to remain married to the conniver. Hence, the " f a u l t " theory of divorce, declares the defending spouse "innocent" and f o r h i s reward leaves him married to the " g u i l t y " conniving spouse - a curious r e s u l t . For a s i t u a t i o n of this sort to a r i s e , i t i s not s t r i c t l y necessary f o r the defendant to plead connivance. Even i n an undefended case, i f the judge has reason to suspect connivance, 21 i t i s his duty to ascertain the truth. Although the nature of the proceedings of an undefended divorce makes this u n l i k e l y , i t i s a p o s s i b i l i t y that one seeking a divorce cannot r u l e out. Condonation W. Kent Power, i n hi s leading t r e a t i s e on divorce i n Canada, defines condonation as forgiveness of adultery with a 20 "Hechter vs. Hechter and Cohen, (1958) 12 D.L.R. (2d) 326. 2 1 D ivorce and Matrimonial Causes Act. Sec. 15-16. - 29 -f u l l knowledge of the circumstances, followed by reinstatment of the offending party to his or her former p o s i t i o n i n the home, subject to the implied condition that no further offense required to pursue a suspicion of condonation, even when i t i s not pleaded. The p l a i n t i f f i s bound to disclose any facts which 23 might y i e l d a finding of condonation to the courts. Beard vs. Beard, an English decision, followed i n B r i t i s h Columbia, d e f i n i t e l y establishes that condonation i s conditional on the forgiven spouse's continued good behavior and that a subsequent lesser matrimonial offense can revive the condoned adultery. Such lesser offenses include c r u e l t y , desertion, 24 adultery, or an intent to commit adultery. Thus a couple, one of whom has been g u i l t y of adultery, must think very c a r e f u l l y before " t r y i n g again". The fact of adultery i n a marriage usually indicates pre-existing problems. Each partner may well r e a l i z e h i s part i n the offense and wish to attempt a r e c o n c i l i a t i o n . However, i f f o r reasons short of a matrimonial offense, the couple f i n d they cannot l i v e together, the grounds f o r divorce are gone and the "innocent" spouse i s w i l l occur. 22 Again, as with a l l absolute bars, the judge i s 22 J . D. Payne, p. 51. 'ib i d . . pp. 54-55. W r d vs. Beard, (1945) 2 A l l ER 306. 23 24„ - 30 -l e f t with an empty marriage. This aspect of the law would seem to penalize the "innocent" spouse f o r his desire to make hi s marriage work and to perhaps deter some couples from attempting r e c o n c i l i a t i o n . Any professional persons wishing to help the parties of the marriage work out a sol u t i o n are also hamstrung by the law which makes i t d i f f i c u l t to work towards a t r i a l r e c o n c i l i a t i o n . Collusion The B r i t i s h Columbian courts have not yet s e t t l e d t h e i r p o s i t i o n as regards what constitutes c o l l u s i o n . There seems to be two main trains of thought as exemplified i n Dutko vs. Dutko and Johnson vs. Johnson and Arnet. Dutko vs. Dutko, a Manitoba case, decided by Bergman, J . A., defined c o l l u s i o n as a corrupt agreement to which the p l a i n t i f f i s party to obtain a divorce by manufactured evidence 25 or by p r a c t i c i n g a deceit or fraud on the courts. The Johnson vs. Johnson and Arnet case decided by Norris, J . i n B r i t i s h Columbia, f e l t that c o l l u s i o n was inherent i n any agreement that tended to obstruct the course of j u s t i c e . Hence according to this case, any deceit, fraud, f a l s e evidence, i s c o l l u s i o n but so i s any agreement not to defend the case, even Dutko vs. Dutko, (1946) 3 WWR 295 - 31 -where no defense i s possible. Also an agreement to furnish evidence would be an i m p l i c i t agreement not to defend and hence collusxve. Both judgments agree that i t i s an act of c o l l u s i o n to bargain f o r a divorce and that the p l a i n t i f f must desire redress fo r her wrongs rather than f i n a n c i a l benefit. The i n t e r p r e t a t i o n the courts give to c o l l u s i o n i s of utmost importance to parties seeking divorce. As there i s so much ambiguity surrounding c o l l u s i o n , the p l a i n t i f f usually reveals to the court any agreement e x i s t i n g which may be con-strued as such. Also, the judge i s bound to study cases before him f o r signs of c o l l u s i o n and the Attorney-General can intervene i f an agreement i s brought to his attention. Hence, i f parties to a divorce make a certain agreement to f a c i l i t a t e t h e i r divorce, e.g. the defendant supplies evidence and pays the costs, and reveal these i n f u l l to the court, they s t i l l run the r i s k of having the agreement declared c o l l u s i v e . One r e s u l t of th i s i s , of course, that agreements tend to remain private involving the parties i n a process of concealment. The other e f f e c t i s that parties to a divorce are f e a r f u l of discussing any matters pertaining to t h e i r action. I t should be noted that the one Johnson vs. Johnson and Arnet, (I960) 31 WWR (NS) 403. - 32 — agreement parties are e n t i t l e d by law to make i s i n regard to 27 the custody of children. Costs Rules 29 and 30 of the B r i t i s h Columbia Supreme Court rules pertaining to Divorce and Matrimonial Causes, state that whether the wife i s the defendant or p l a i n t i f f , successful or unsuccessful, she may be awarded her costs, at the d i s c r e t i o n 28 of the court. The costs are usually asked f o r i n the wife's favor. The rationale behind this r u l e i s that no wife should be denied a divorce or a defense due to lack of funds. A judge can exercise j u d i c i a l d i s c r e t i o n and refuse costs. However, i n B r i t i s h Columbia the wife i s usually granted her costs unless the court feels that her s u i t or defense were f a r c i c a l or where 29 she has a private source of income. The wife can however find herself without funds to i n s t i t u t e a divorce i n cases where her lawyer wishes a deposit or where she must h i r e a detective to obtain proof of adultery. She can, of course, recover such costs following the court hearing. In B r i t i s h Columbia, the cost of an undefended divorce i s about $600. This includes the lawyer's fee which averages $400, 27 Equal Guardianship of Infants Act, R.S.B.C., 1960, ch. 130, sec. 11. The Divorce Rules. Rules 29-30. 29 John Stanton, Verbal Communication, January 19, 1966. - 33 -the cost of various technical d e t a i l s e.g. serving the defen-dant, of about $100, and the cost of a detective of about $100. A young lawyer might charge as l i t t l e as $200 and an emminent lawyerr; considerably more than $400. Hence a husband i n i n s t i -t u t i n g a divorce must usually count on a b i l l of at le a s t $500 and this b i l l can go w e l l over $1500 mark. 3 0 In B r i t i s h Columbia, according to one p r a c t i s i n g lawyer, Legal Aid i s not normally provided f o r divorces as lawyers would 31 be swamped! Legal Aid i s provided i n divorce cases where a q u a l i f i e d s o c i a l worker has recommended such aid for the benefit of the infant children of the marriage or when a doctor has recommended aid on the grounds that the health of the applicant i s endangered by continuing matrimonial problems. Legal Aid i s also not rendered i n divorce proceedings where a lesser remedy, such as j u d i c i a l separation, w i l l s u f f i c e . Legal Aid has been rendered to obtain divorces i n cases of incest and 32 b r u t a l i t y to the children. These figures would seem to indicate that only a person with a steady, r e l i a b l e job and not too many family responsibi-l i t i e s would stand a f a i r chance of formally ending h i s marriage. 3 0John Stanton, Verbal Communication, January 19, 1966. 3^Norma C h r i s t i e , Verbal Communication, 1965. 32 The Law Society of B r i t i s h Columbia, Legal Aid i n  B r i t i s h Columbia. Vancouver, 1963, p. 3. - 34 -The Hearing On Fridays, between 11 and 1 o'clock, the Supreme Court of B r i t i s h Columbia hears undefended divorce actions. One of the authors attended one such session, and the following are her impressions of the hearing. One walks into the court room; the o f f i c i a l s are at the front and there are seats for spectators at the back. The judge i s dressed i n robes as are the lawyers. The court i s ca l l e d to order and the p l a i n t i f f i s sworn i n , asked his name, and h i s lawyer asks permission to lead the witness through the preliminary parts of the statement of claim. This i s usually granted. A picture of the defendant i s shown to the p l a i n t i f f to v e r i f y that the correct person was served with the w r i t and statement of claim. Domicile i s established, the welfare of the children i s asked a f t e r . The lawyer asks the p l a i n t i f f i f she has connived at the adultery of the defendant or entered into a c o l l u s i v e bargain with him. The lawyer also asks the p l a i n t i f f , although i t i s not required i n the r u l e s , i f she has condoned the adultery. Costs are asked f o r . The matrimonial offense on which the divorce i s granted i s then proven. In one case, the b i r t h of a c h i l d to the defen-dant, of which the p l a i n t i f f could not possibly be the father, was accepted as proof. In other cases, private investigators - 35 -were c a l l e d . In one case, the testimony was as follows: Two investigators were watching the defendant's apartment. At 2:45 the l i g h t s went out and at 3:15, the investigators knocked. A man answered the door dressed i n his trousers only. The detec-tives i d e n t i f i e d themselves, and asked f o r the defendant wife. I t was discovered that she was i n bed and the detectives l e f t . The defendant and co-defendant were i d e n t i f i e d i n court by pictures. The procedure made the author f e e l uncomfortable as when l i s t e n i n g to a not very funny d i r t y joke. The p l a i n t i f f looked uneasy and deeply embarassed. A f t e r t h i s the judge may ask some questions about the children or alimony. The marriage i s then dissolved. The en t i r e procedure la s t s approximately ten minutes. The attitud e i n the court room i s predominently one of boredom. Court o f f i c i a l s move about, the lawyer goes through h i s questions quickly, the judge does not inquire into anything except the occasional l e g a l d e t a i l . The p l a i n t i f f , although nervous, has the a i r of one going through a necessary r i t u a l . In one case, the male p l a i n t i f f ' s voice broke and he needed a few seconds to recover himself, the attitud e of the court was one of surprise and d i s t a s t e - imagine having the bad taste to cry about a divorce! Generally one f e l t that the court and the parties wanted an unpleasant and embarassing episode over with as quickly as possible. There was never any h i n t that anyone wished to - 36 -examine what had r e a l l y caused the marriage to f a i l . Hence i n this province, the divorce laws and r u l e s , c a r e f u l l y structured to prevent divorce by mutual consent and to punish theguilty spouse, are f a i l i n g i n t h e i r avowed purpose. The general practise of undefended actions make divorce by consent, or at least indifference, the ru l e . . Where the law i s invoked and connivance or condonation i s found, i t i s the "innocent" spouse who i s punished by being forced to continue i n the marriage. The state of the law on c o l l u s i o n i s such that many people, wisely, keep any agreements very private. In a healthy society, the distance between the formal law of the country and what the population considers j u s t i s s l i g h t . As the law becomes further and further removed from the s o c i a l r e a l i t i e s , more and more ways are found to circumvent i t . The divorce laws i n Canada are frequently circumvented. In f a c t , i t would appear that i f a couple has money and are not open about t h e i r private communications, a divorce i s assured. This wide-spread disrespect of one law, often the only one which "respectable" c i t i z e n s or t h e i r friends come i n contact with, can only t a i n t our other laws. The divorce laws of Canada do not merely need an extension of the grounds on which divorce can be obtained, they need re v i s i o n which allows the couple and the community to maturely study the reasons f o r the m a r i t a l breakdown, to explore - 37 -the chances of r e c o n c i l i a t i o n , and where impossible to make the necessary arrangements with as l i t t l e disruption to the couple, t h e i r children and the community as possible. CHAPTER I I I GROUNDS FOR DIVORCE Marriage i s a l e g i s l a t e d s o c i a l i n s t i t u t i o n which places a man and woman under l e g a l and s o c i a l obligations to each other and to society. I t would seem that the formal d i s s o l u t i o n of the m a r i t a l bond i n any society must be a c o r o l l a r y of the theory and practice of marriage, and that a d i r e c t r e l a t i o n e x i s t i n the law between these two aspects - marriage and divorce - of the same i n s t i t u t i o n . Due mainly to the empirical character of the law, however, there i s no general secular l e g a l doctrine of marriage or a clear statement of i t s nature, aims, and purposes.''" This lack makes the i d e a l of formulating a divorce law which would bear some congruence to our marriage law v i r t u a l l y impossible. In practice, the basis f o r contracting marriage i s volun-tary choice and a f f e c t i o n . We regard t h i s , i n f a c t , as the only j u s t i f i a b l e grounds for entering into marriage. Yet while the law accepts these conditions as v a l i d grounds for entering into marriage, i t does not accept the absence of these conditions as T)ominik Lasok, "The Grounds of Divorce i n Transition," S o l i c i t o r s Quarterly, v o l . 2, no. 4 (October 1963), p. 298. - 39 -2 v a l i d grounds f o r i t s discontinuance. On the matter of divorce grounds i n general, there are few branches of law upon which public opinion i s so sharply and widely divided, ranging from the b e l i e f that marriage i s ind i s s o l u b l e except by death to the advocating of divorce fey mutual consent. Our present l e g a l philosophy i s based on the doctrine of the matrimonial offense and p r i n c i p l e of g u i l t which was adopted by the church to grant a divorce to the "innocent" party as a sanction for an offense committed by the other party 3 i n v i o l a t i o n of the marriage contract. According to the current law i n B r i t i s h Columbia, the primary matrimonial offense which j u s t i f i e s the d i s s o l u t i o n of a marriage i s that of adultery. (While rape, sodomy, and b e s t i a l i t y are a d d i t i o n a l grounds, they are apparently seldom used and have received r e l a t i v e l y l i t t l e a ttention as issues i n divorce.) Even i f we accept the p r i n c i p l e of the matrimonial offense, i n the l i g h t of current psychological and s o c i o l o g i c a l data (which our law has managed to ignore e n t i r e l y ) , i t would be very d i f f i c u l t to assert that most marriages s u f f e r irreparable 4 breakdown as a r e s u l t of a single act or event. I t i s not the 2 Helen I. Clarke, S o c i a l L e g i s l a t i o n . New York, Appleton-Century-Crofts, Inc., 1957, p. 28. 3 Lasok, p. 307. 4 I b i d . , p. 318. - 40 -purpose of t h i s section to deliberate on the question of which comes f i r s t , the m a r i t a l breakdown or the "offense", nor to consider the more current view that i t i s a m u l t i p l i c i t y of factors which must be operative i n order to render married l i f e i n t o l e r a b l e . Our law does, i n f a c t , maintain the doctrine of the matrimonial offense, and adheres to the b e l i e f that t h i s offense must be i n the form of adultery. The question must be asked as to whether or not there are more cogent causes than a single act of adultery f o r releasing a spouse from the marriage contract. I t does not require much imagination or experience to be aware of the various situations which can be allowed to e x i s t under our present law. The cruelty i n a marriage can be so great that the mental and physi-c a l health of the spouses or children breaks, yet the law does not consider t h i s s u f f i c i e n t grounds to grant release from the s i t u a t i o n to the parties involved. An i n d i v i d u a l may f i n d himself or herself bound i n a marriage to someone who i s so mentally i l l as to require i n d e f i n i t e confinement; yet even though a l l the personal and s o c i a l functions of marriage have ceased to e x i s t , the l e g a l t i e must be maintained. In the case of desertion, a man or woman may remain away from hi s or her spouse forever, and s t i l l the deserted party i s unable to re-marry or make a new l i f e f o r himself. The individuals i n these and innumerable other not uncommon and equally t r a g i c situations - 41 -are denied the r i g h t to free themselves from t h e i r marriages. As a r e s u l t , people are often forced into i l l e g a l common-law relationships because they are unable to contract l e g a l ones.*' W. Kent Power has stated that the opinion of the majority of Canadians i n the English-speaking provinces i s that " . . . while marriage i s of public concern and i t s sanctity should be s t r i c t l y safeguarded by law, our present laws are out of touch with the conditions of modern l i f e and should be changed by en-6 larging the grounds on which divorces are obtainable." The fundamental p r i n c i p l e s of our divorce law at present, as implied and adhered to by the decisions of the courts, are that we do not recognize divorce by consent, that marriage and divorce concern not only the parties involved but the public as w e l l , and that i t i s i n the public i n t e r e s t that the sanctity and importance of the marriage relationship should be maintained and protected. I t i s this l a s t point which seems to be open to the greatest amount of questioning and c r i t i c i s m when viewed against the background of current s o c i a l r e a l i t i e s . Not only does i t ra i s e the very v i t a l issue of public i n t e r e s t versus i n d i v i d u a l i n t e r e s t , but also the important question of how the Norma B. C h r i s t i e , "Our Antiquated Divorce Laws: I l l o g i -c a l , Cruel, Barbarous, Disgusting," The Courier, v o l . 2, no. 5 (June 1964). 6 W. Kent Power, Power on Divorce. Calgary, Burroughs & Company, Ltd., 1964, p. 26. - 42 -public i n t e r e s t i s served by: forcing the maintenance of a demoralizing r e l a t i o n s h i p and disintegrated marriage. A decision handed down by the Supreme Court of Poland bears relevance to th i s point; i n this p a r t i c u l a r case, i t was stated that divorce i s a necessary e v i l which was introduced for the public good i n order to eliminate another s o c i a l e v i l , namely the continuation of a formal matrimonial union i n sp i t e of the fact that the unity had di s i n t e g r a t e d . 7 A further statement by a "learned commentator" agrees that while matri-monial law i s dominated by a paramount public i n t e r e s t , ". • . public opinion has long since recognized that there may be a public i n t e r e s t i n the non-existence or i n the discontin-g uance of a marriage as w e l l . " Although a large proportion of Canadians may believe that the present divorce grounds are inadequate and antiquated, yet they tolerate or even encourage a purported compliance with them when what they regard as r e a l grounds f o r freeing the 9 parties e x i s t . Under the law as i t stands at present, people who seek freedom from marriages which may be damaging to a l l concerned are forced to "construct" and "prove" adultery; i t has, Lasok, p. 298. Power, p. 29. I b i d . . p. 27. - 43 -i n f a c t , been asserted that the law i t s e l f has produced such abuses as dishonest detectives, professional co-respondents, and other l e g a l practices which " . . . wink at the true state of a f f a i r s and bring the courts into disrepute. """"^  I f the individuals involved can afford the expense of doing so, i t does not appear to be very d i f f i c u l t to "arrange" a case of adultery. I t i s safe to say that people not i n f r e -quently get divorces on the grounds of adultery which has never taken place or, i f i t has, which i s not the "reason" for the divorce at a l l . Persons who are determined to end t h e i r mar-riages to each other w i l l do so i f they can afford the f i n a n c i a l cost of proving adultery. And this i s where the law lends i t s e l f to corruption and forces desperate people to engage i n humiliating, degrading and dishonest behavior. Power goes so f a r as to say that c o l l u s i o n and other such i l l e g a l practices might a c t u a l l y disappear i f the law were changed to prevent a single act of adultery being r e l i e d on as the cause of a divorce a c t i o n . 1 1 In the f i n a l analysis, the gravest problem seems to be one of p r i n c i p l e . Divorces can i n f a c t be obtained on the grounds of adultery, r e a l or contrived, but i n Ithe process the ""^Christie, l o c . c i t . """"Power, p. 27. - 44 -parties involved, the l e g a l profession, and therefore society as a whole must suff e r . A s i t u a t i o n i n which the rules of law are so grossly out of harmony with the b e l i e f s and practices of the people which they are supposed to serve cannot i n any way contribute toward the development of a healthy society. There are several related l e g a l factors with s o c i a l im-pl i c a t i o n s which a f f e c t the granting of a divorce decree. One such matter i s that of discretionary bars. When an i n d i v i d u a l undertakes divorce proceedings against h i s or her spouse, even though his case has been proved and the court has not found an absolute bar, i t i s not bound to grant a decree f o r divorce i f i t finds a discretionary bar e x i s t s , as specified i n Section 16 of the Divorce and Matrimonial Causes Act. These discretionary bars are that the p l a i n t i f f himself has been g u i l t y of: (1) adul-tery during the marriage; (2) unreasonable delay i n presenting or prosecuting the p e t i t i o n ; (3) cruelty; (4) desertion without reasonable cause; or (5) w i l f u l neglect or misconduct which 12 conduced to the adultery. Where a discretionary bar a r i s e s , the law imposes on judges the duty of exercising a j u d i c i a l d i s c r e t i o n , but does not lay down any d e f i n i t i v e r u l e upon which the d i s c r e t i o n i s to Divorce and Matrimonial Causes Act. R.S.B.C., I960, Ch. 118, Sec. 16. - 45 -13 be based. Apparently the decisions made must be based on consideration of the facts of each p a r t i c u l a r case, and a decision on no one case can be an authority f o r another. This lack of d e f i n i t i o n seems to leave much room for f l e x i b i l i t y and v a r i a t i o n , but at the same time poses the question as to how much the i n d i v i d u a l opinions of judges enter into t h e i r decisions. Certainly those s i t t i n g on the bench represent a l l points along the continuum of views on divorce. A judge strongly opposed to the d i s s o l u t i o n of marriage may wel l give more narrow interpre-t a t i o n to h i s discretionary power and be more apt to discover a discretionary bar than one who entertains a more l i b e r a l view-point. Because of the fuzziness of the law regarding d i s c r e t i o n , i t would be d i f f i c u l t to determine what factors weighed most heavily i n producing the f i n a l decision i n a p a r t i c u l a r case. Regardless of t h e i r i n d i v i d u a l opinions, however, i t i s the duty of judges to apply the law as they f i n d i t , and they are bound to give e f f e c t to i t s provisions to the best of t h e i r a b i l i t y . The discretionary bar which has received the most attention both i n practice and i n the l i t e r a t u r e , i s that of adultery. According to Section 16 of the Divorce and Matrimonial Causes Act, " . . . the court i s not bound to pronounce such (divorce) decree i f i t finds that the p e t i t i o n e r has during the marriage Power, p. 30. - 46 -been g u i l t y of adultery. . . " Where the p l a i n t i f f i s found g u i l t y , Section 16 requires the court to decide whether or not to exercise d i s c r e t i o n i n hi s favor - that i s , whether or not to grant the decree. The p r i n c i p l e that appears to be operating here i s again that of g u i l t versus blamelessness. The doctrine requires that the p l a i n t i f f come into court with "clean hands" i n regard to the current proceedings. As a r e s u l t , he must disclose i n f u l l the d e t a i l s of his own adultery to h i s lawyer. This i n f o r -mation i s sealed i n an envelope and inspected by the presiding judge when the case i s opened. The p l a i n t i f f thereby places himself at the mercy of the court by confessing h i s own g u i l t and begging for leniency by asking that d i s c r e t i o n be exercised i n his favor. There i s no statement i n the law which makes i t mandatory for the p l a i n t i f f to disclose to the court his own adultery. The practice of d i s c r e t i o n originated i n the idea that i f the p l a i n t i f f ' s own misconduct was l i k e l y to be brought to the atten-t i o n of the court, there was more l i k e l i h o o d of favorable treat-ment for him i f he himself disclosed i t and sought favorable 14 judgement. Whereas i t i s supposed to be the knowledge of the Raymond G. Herbert, "Disclosure of the Peti t i o n e r ' s Adultery and the P r i v i l e g e Against S e l f - i n c r i m i n a t i o n i n Divorce Gases," U.B.C. Legal Notes, v o l . 2, no. 3, p. 248. - 47 -p l a i n t i f f ' s misconduct which gives r i s e to the exercising of d i s c r e t i o n and not his disclosure of i t , i n actual practice, however, disclosure seems to be a p r a c t i c a l necessity, as e v i -denced by the r e f u s a l of decrees which would otherwise have been granted due to discovery of the p l a i n t i f f ' s adultery."""' Yet adhering to even a s t r i c t i n t e r p r e t a t i o n of the law, the fact remains that the p l a i n t i f f should suffer no prejudice from non-disclosure, since he has no duty to make such a disclosure. I t appears to no longer be the exception that d i s c r e -tionary power i s exercised i n favor of the p l a i n t i f f . The changing s o c i a l conditions i n B r i t i s h Columbia and Canada have been r e f l e c t e d by more extensive exercise of j u d i c i a l d i s c r e t i o n i n favor of the p l a i n t i f f than was formerly accorded.*"4' The judgment of the House of Lords i n Blunt vs. Blunt, which has been consistently followed and applied by Canadian courts, established the circumstances which warrant exercise of d i s -cretion i n the p l a i n t i f f ' s favor. Perhaps the one most important "circumstance" which has allowed the courts to exercise favorable d i s c r e t i o n where formerly the decree would have been refused i s the stated need to consider the i n t e r e s t of the community at large, ". . . to be judged by maintaining a true balance between Herbert, l o c . c i t . Power, p. 107. - 48 -respect f o r the binding sanctity of marriage and the s o c i a l considerations which make i t contrary to public p o l i c y to i n s i s t on the maintenance of a union which has u t t e r l y broken down."*"7 J u s t i f i c a t i o n f or t h i s current trend i n the practice of exercising d i s c r e t i o n seems to l i e i n the court's apparent b e l i e f that when a case requiring a discretionary decision comes before i t , the marriage i n question must be i n such a state of di s r e p a i r that i t would be i n the best in t e r e s t s of a l l con-cerned to dissolve i t . Yet again, the problem seems primarily to be one of p r i n c i p l e . I f one spouse commits adultery, the other can obtain a divorce, provided he can prove the adultery. I f both commit adultery, one spouse must accuse the other f i r s t and beg f o r mercy f o r himself i n order f o r the divorce to be obtained. This discretionary bar may i n fact be a b e n e f i c i a l and valuable provision, as i t can allow the d i s s o l u t i o n of a marriage which has broken down; but sanctioning an i n d i v i d u a l to obtain a divorce on the grounds of his spouse committing an "offense" of which he himself i s also g u i l t y makes a mockery of the law and of the whole concept of marriage as w e l l . There are certain features of the law with regard to e v i -dence and proof of adultery which deserve mention and consideration. Power, p. 103. - 49 -To begin with, the burden i s on the p l a i n t i f f to prove adultery, 18 not on the defendant to disprove i t . The standard of proof required to prove adultery was established by the case of Smith vs. Smith and Smedman, 1952, i n which " . . . the Supreme Court of Canada held, so f a r as B r i t i s h Columbia i s concerned, that the standard of proof required to prove adultery i n a divorce action, where the legitimacy of o f f s p r i n g i s not i n question, i s the c i v i l standard of proof by preponderance of evidence rather than the criminal standard of proof beyond a 19 reasonable doubt." However, " . . . a p l a i n t i f f who seeks a decree of divorce on evidence which, i f accepted, w i l l bastar-dize a c h i l d born during the subsistence o f the marriage, must 20 prove adultery beyond reasonable doubt. . .", which i s the criminal standard of proof. In the opinion of the authors, the problem which arises here i s that the question o f i l l e g i t i m a c y i s merely one of the matters which should a f f e c t the seriousness of the issues and should therefore receive due consideration by the courts but not the actual standard of proof required, which should s t i l l be the c i v i l one of preponderance of evidence. 18 Power, p. 421. 19 W. G. N. Egbert, "Divorce - Standard of Proof of Adultery," CBR, v o l 30, 1952, p. 753. 20 Power, p. 427. - 50 -I t i s almost never possible to adduce d i r e c t evidence of adultery; i t i s usually circumstancial, and therefore must be s u f f i c i e n t to convince the court that i t should i n f e r that 21 adultery occurred. I t i s also impossible to lay down any general r u l e defining the circumstances which are s u f f i c i e n t to j u s t i f y a finding of adultery, " . . . except that the circum-stances must be such as lead by f a i r and reasonable inference to 22 that conclusion." Here again we f i n d a double standard to e x i s t : the p e t i -tioner f o r divorce i s protected against questions as to h i s or 23 her adultery, but the respondent i s not. The haziness surroun-ding the issue of evidence i s compounded by the use of vague and undefinable terms. Even though the charges of adultery are not denied, the court must be ". . . ' s a t i s f i e d ' on the evidence 24 that the case of the p e t i t i o n e r has been proved. . ." The testimony of a single witness, even i f i t i s an uncorroborated statement by the p e t i t i o n e r , i s s u f f i c i e n t i f i t i s "convincing". Admissions of g u i l t by the defendant are s u f f i c i e n t i f they are deemed to be "trustworthy;" but i t has been found i n practice that such admissions are looked upon with suspicion and zealously ^?ower, p. 427. 22I b i d . 2 3 i b i d . , p.686. 24 Divorce and Matrimonial Causes Act. Sec. 16. - 51 -scr u t i n i z e d f o r evidence of c o l l u s i o n , etc. 25 Whereas "hotel evidence" has been refused as s u f f i c i e n t by the courts i n recent years, the uncorroborated evidence of private detectives i s association i s not s u f f i c i e n t to prove that adultery has occurred, which seems to be a wise provision; f or f a m i l i a r i t i e s which would j u s t i f y suspicion i n certain environments are of l i t t l e s i g n i f i c a n c e i n other c i r c l e s . In a l l , however, the rules re-garding evidence are r e l a t i v e l y vague and undefined, and seem to demand subjective decisions and value judgments. In reviewing our laws regarding grounds f o r divorce, i t i s impossible to remain unimpressed with t h e i r g l a r i n g d e f i -ciencies and harmful elements. I t has always been stated, at least i n theory, that the purpose of laws i s to enable people to govern themselves while at the same time protecting t h e i r best i n t e r e s t s . Our current l e g a l practices regarding divorce grounds are not enabling. In p r i n c i p l e and i n practice, the law i s at odds with the s o c i a l conditions of the times. I t not only f a i l s to r e f l e c t current b e l i e f s and practices, but seems to present i t s e l f as a foe to those whom i t would serve, foster the s t i l l admissible. 26 Proof of i n c l i n a t i o n , opportunity and 25. Power, p. 432. 26 I b i d . , pp. 443, 451. - 52 -very s o c i a l and l e g a l decay i t i s supposed to prevent, and generally lends i t s e l f to d i s c r e d i t . Under these circumstances i t i s very d i f f i c u l t to maintain a high regard f o r the sanctity of the law. The problem has been stated by one lawyer as follows: "No one i s more p a i n f u l l y conscious than the l e g a l profession of the u t t e r i m b e c i l i t y of our present divorce pro-cedure and the pernicious and almost wicked philosophy upon which i t i s based. Every honest lawyer i s ashamed of the atmos-phere of hypocrisy and l i e s i n which he usually must handle a divorce a divor-ce case; every conscientious judge i s b i t t e r about his impotence under e x i s t i n g l i m i t a t i o n s and r e s t r i c t i o n s . " I f the law i s to serve a t r u l y useful purpose by attempt-ing to protect the i n s t i t u t i o n of marriage and the best interests of society, then i t must aim to make and keep marriages that are s o c i a l l y useful and to provide methods of d i s s o l u t i o n when con-tinuance of the marriage i s demoralizing to the partners. "The permanency of marriage does not rest on the external power of church or state; i t endures because of i t s own i n t r i n s i c charac-ter. To compel people to remain married due to archaic r e l i g i o u s b e l i e f s and anachronistic statutes i s as abhorrent as slavery. Divorce can be a healthy method of adjustment when marriage i s 27 Paul W. Alexander, "Family L i f e Conference Suggests New J u d i c i a l Procedures and Attitudes Toward Marriage and Divorce," GBR, v o l . 27, 1949, p. 239. - 53 -a f a i l u r e . " The following statement delivered i n conjunction with a divorce decision sums up many aspects of the current s i t u a t i o n quite w e l l : People do make mistakes i n marriage and discover too la t e that they cannot l i v e together, and so separate. Under the law as i t i s at present, such persons cannot be divorced and given a chance to s t a r t over again upon a respectable basis unless one of the spouses commits adultery which, by some means, not only comes to the notice of the other spouse, but actual evidence of which also comes into the hands of the other spouse; or unless they manufacture a set of circumstances upon which the Court i s asked to f i n d that adultery has taken place. This means that respectable persons who neither commit adultery nor perpetuate a fraud upon the Court are without r e l i e f . The law gives r e l i e f to persons when one spouse commits adultery and engages i n fraud. Is this i n the national interest? . . . To make an i s o l a t e d act of adultery the sole and only cause f o r divorce i s wrong i n p r i n c i p l e and vicious i n practice. I t i s time that the whole matter was considered by the responsible l e g i s l a t i v e authority. The sham which takes place i n the courts i n many of these matters should be put an end to.29 Clarke, p., 150 i Power, p. 31. CHAPTER IV DOMICILE The t h i r d aspect of the present divorce l e g i s l a t i o n and practice i n B r i t i s h Columbia, the s o c i a l effects of which might arouse concern, i s the concept of "domicile". This i s not d i r e c t l y a t t r i b u t a b l e to the divorce l e g i s l a t i o n i t s e l f , but arises out of the decisions determining whether or not a court has j u r i s d i c t i o n over the l i t i g a n t s applying for i t s service back through centuries of common law. There i s no Canada-wide domicile, instead a person's domicile i s located i n a s p e c i f i c province. Therrules f o r determining domicile i n divorce actions and other matrimonial causes do not d i f f e r from those applied i n respect to other matters where a man's c i v i l status i s involved; and i t may be that there are cases dealing with w i l l s or other branches of the law i n which the facts as to domicile are cl o s e l y s i m i l a r to, or even i d e n t i c a l with, those i n question i n a divorce s u i t . 1 I t i s not peculiar even to Canada. Likewise there i s not i n respect to divorce, domicile at large i n the United States of America; each state i s a separate j u r i s d i c t i o n , or i n the United Kingdom; England, Scotland, Northern Ireland, and Ei r e being separate 'countries'; as are also the cantons of Switzerland.2 Hf. Kent Power, The Law and Practice Relating to Divorce. Calgary and Toronto, Burroughs and Co., 1964, p. 386. 2 I b i d . . p. 385. - 55 -The effect of the "domicile" r u l e can have unfortunate s o c i a l r e s u l t s with regard to divorce proceedings because of a combination of factors. F i r s t , the wife's domicile (following the early s o c i a l customs which made a woman, i n e f f e c t , part of the husband's property) cannot d i f f e r from that of her husband. Thus, i n England and the Canadian common law provinces, the domicile of a married woman i s always that of her husband as long 3 as a v a l i d marriage subsists. In fact " t h i s unity of domicile i s created by operation of law even where the marriage i s 4 voidable" and "the i d e n t i t y of the domicile of a wife with that of her husband i s not founded on any duty of cohabitation but i s a consequence of the union between husband and wife brought about by the marriage t i e . I t i s conclusively presumed, and the wife has no capacity to acquire independent domicile."'' Secondly, the development of B r i t a i n as an expanding nation during the f i f t e e n t h to eighteenth centuries, combined with the development of the colonies (and, to a degree, B r i t a i n ) during the seventeenth to nineteenth centuries as a refuge for the r e l i g i o u s l y or p o l i t i c a l l y h e r e t i c a l of other nations, has prevented "domicile" from being simply considered a mere matter of b i r t h or residence. Thus, "a person's domicile i s e n t i r e l y 3 Power, p. 387. 4 I b i d . 3 I b i d . . p. 388. - 56 -d i s t i n c t from, and i n no way dependent upon, his n a t i o n a l i t y ; i t concerns his c i v i l status not h i s p o l i t i c a l allegiance." A person's domicile i s either h i s domicile of o r i g i n or a domicile of choice. Thel;, domicile of o r i g i n i s that which the law attributes to a person at h i s b i r t h . I t i s not necessarily, as i t i s sometimes erroneously assumed to be, the country of his b i r t h , but i t i s the domicile of the person upon whom he was then l e g a l l y dependent.7 The a c q u i s i t i o n of a domicile of choice i s the conse-quence which the law i n f e r s has resulted from the combination of two f a c t s , v i z : (1) Actual presence i n the country of choice; (2) Coupled with the intention of s e t t l i n g there permanently, or, at l e a s t , as Lord Cairns s a i d , 'for the rest of his natural l i f e , ' - i n the sense of making that place the person's p r i n c i p a l residence i n d e f i n i t e l y . Therefore a person may reside fo r many years i n a place without acquiring a domicile therev^the moment he_takes up residence i f he has the required intention. °V_/and on the other hand he w i l l acquire J a domicile there But, "since to estab l i s h a domicile of choice there must be the a c q u i s i t i o n of a new place of residence with the int e n t i o n of remaining there permanently, or at leas t i n d e f i n i t e l y Sine Animo  Revertendi. proof of actual residence i s not s u f f i c i e n t . " As can be seen the issue of domicile i s not exactly a clear-cut one. F i n a l l y , the conditions of modem l i f e have made the o l d concepts of "domicile" p a r t i c u l a r l y d i f f i c u l t to apply. Many a man, employed by a big national or i n t e r n a t i o n a l organization and Power, p. 386. I b i d . . p. 400. 'ib i d . , p. 402. Power, p. 405. - 57 -subject to change of job location at the organization's pleasure, i s never, during his working years, going to be i n a p o s i t i o n to t e s t i f y f r e e l y that he intends to s e t t l e i n one place " f o r the rest of h i s natural l i f e " . Among the lea s t a f f l u e n t , too, a f a i r amount of t r a v e l l i n g goes on, especially during periods of economic slump, i n an e f f o r t to f i n d a d i s t r i c t where work e x i s t s . This may r e s u l t simply i n the husband moving away and s e t t l i n g i n a province f a r from h i s family, but i t may also involve h i s bringing his family with him to a new d i s t r i c t and then, a f t e r a short unsuccessful stay, himself moving eit h e r back to the province of o r i g i n or on to a new province, alone because funds.no longer permit the family to t r a v e l with him.. I f the marriage i s already subject to some degree of stress and unhap-piness, he i s tempted to prolong the absence i n d e f i n i t e l y . The s i t u a t i o n of the wife l e f t behind with the children to care f o r by the deserting husband has been mitigated to a l i m i t e d extent by Sec. 2 of the Divorce J u r i s d i c t i o n Act R.S.C. 1952 Ch. 84 (passed i n 1930 as ch. 15). This enables the wife to sue for divorce i n the former domicile of her husband wherein she was deserted. However, the problems revealed i n a few B, C. cases show that the r e l i e f afforded by the Divorce J u r i s d i c t i o n Act does not completely solve the problems of the deserted "innocent" wife who wishes to obtain her freedom. - 58 -For example, there i s the case of the w i f e l e f t i n Saskatchewan w i t h her c h i l d i n 1929, w h i l e her husband went to l i v e w i t h another woman. ^  I n 1934 i n ord e r to make a l i v i n g f o r h e r s e l f and her c h i l d , she moved to B.C., and around the same time her husband moved to Manitoba. Some years l a t e r the w i f e f i n a l l y decided to take a c t i o n f o r d i v o r c e and s i n c e she was d o m i c i l e d i n B. C. and could prove her husband d e f i n i t e l y d eserted, she attempted a c t i o n i n B.C. Her case was turned down by the Court o f Appeal. E i t h e r Saskatchewan, where she was deserted, o r Manitoba, where her husband was r e p o r t e d l y l i v i n g i n a d u l t e r y , were h e l d to be the courts w i t h p o s s i b l e j u r i s d i c -t i o n . Even when the deserted w i f e sues i n the province i n which the husband p r e s e n t l y r e s i d e s , and to which she has sub-sequently moved, the Court w i l l not e x e r c i s e j u r i s d i c t i o n i f i t considers t h a t the husband i s merely a temporary r e s i d e n t because o f h i s employment.^ In recent years the B.C. courts have i n c l i n e d to a more sympathetic i n t e r p r e t a t i o n of d o m i c i l e i n di v o r c e a c t i o n s , and pleas o f l a c k o f i n t e n t i o n to r e s i d e i n d e f i n i t e l y i n B, C. have J o l l y v s . J o l l y (1940) 2 WWR 148 Brewster v s . Brewster (1945) 2 WWR 382 - 59 -12 been rejected as a defense, and the fact of having entered into a separation order has not been accepted as evidence that 13 there was no desertion. Apart from the ef f e c t of domicile when applied within Canada to determine which province has j u r i s d i c t i o n , there i s , of course, the whole question of foreign, e s p e c i a l l y U.S. divorces. While marriages performed according to more lenient U.S. laws are normally accepted as v a l i d by Canadian courts unless they were i n v a l i d according to the law of the state con-cerned, divorces obtained there are not l e g a l i n Canada unless granted i n a state where the husband had l e g a l domicile according to Canadian standards, (not residence) at the time the divorce 14 was acquired. The question of foreign divorce i s too large to be dealt with, but the existence of the above anomaly should be mentioned, p a r t i c u l a r l y as i t i s usually the immature young who rush to obtain a U.S. marriage, and then, when they have had time to r e a l i z e the wisdom of t h e i r elders' disapproval, discover that they are not permitted to correct t h e i r mistake as ea s i l y as they were allowed to make i t . 1 2Withers vs. Withers (1955) 16 WWR (NS) 271; Newell vs. Newell (1957) 21 WWR 572. 1 3 E l k i n s vs. Elkins (1952) 6 WWR (NS) 48. 14 W. Kent Power, "Throw Out Our Cruel Divorce Law," Macleans Magazine, v o l . 69 (August 4, 1956), p. 46. fc There i s general agreement w i t h i n the l e g a l p r o f e s s i o n that the present law of " d o m i c i l e " , having developed out o f ce n t u r i e s o f common law, has not kept abreast o f the l i v i n g c o n d i t i o n s o f modern Canada. A d r a f t model s t a t u t e on the law o f d o m i c i l e has been f i n a l l y approved by the Conference o f Commissioners on Uni f o r m i t y o f L e g i s l a t i o n i n Canada. The d r a f t s t a t u t e i s intended to supercede the common-law r u l e s f o r determining the d o m i c i l e o f a person and s u b s t a n t i a l l y amends the common-law i n tha t i t a b o l i s h e s the doc-t r i n e of r e v i v a l o f the d o m i c i l e o f o r i g i n and a l s o enables a married woman o r an i n f a n t to ac q u i r e an independent domicile.15 T e c h n i c a l l y , the minor c h i l d ' s d o m i c i l e continues to be that o f h i s f a t h e r even though h i s mother may have custody o f him. However, i n cases of custody, a t l e a s t , the B. C. c o u r t s , e s p e c i a l l y , take a p r a c t i c a l stand on the matter and h o l d t h a t "the court has no j u r i s d i c t i o n to a d j u d i c a t e upon the custody o f a c h i l d who i s not present w i t h i n the t e r r i t o r y over which the court has j u r i s d i c t i o n unless the person having the c o n t r o l and 16 a u t h o r i t y over t h a t c h i l d i s w i t h i n t h a t t e r r i t o r y * ' The matter o f custody and the p o s i t i o n o f the c h i l d r e n i n v o l v e d w i l l be considered i n the next s e c t i o n . Power, The Law and P r a c t i c e R e l a t i n g to Divorce, p. 414. ' i b i d . . p. 621. - 61 -So f a r as the non-legal l i t e r a t u r e i s concerned, though s o c i a l problems may a r i s e out of "domicile", t h e i r exact source i s not usually recognized and they are usually d i s -cussed along with other problems a r i s i n g from divorce l e g i s -l a t i o n without recognition of the part "domicile" may play i n t h e i r creation. No study of any type appears to have been done to discover what proportion of deserted wives s t i l l e x i s t , who have grounds f o r and would take action, but who are stopped by the necessity of paying f o r a lawyer and commencing the proceedings i n other parts of Canada. CHAPTER V THE CHILDREN OF THE MARRIAGE In the attempt to assess the s o c i a l e f f e c t of the present l e g i s l a t i o n and practice i n B. C. regarding divorce, l e t us now look at the children of the marriage. There were 587 men and 2877 women l i s t e d as "divorced heads of f a m i l i e s " caring f o r 9308 children (3540 under the age of f i f t e e n ) i n B.C. when the 1961 census was taken."" However, as the e a r l i e r chapters have shown there may be d i f f i c u l t y i n obtaining a divorce, and i t i s probably s i g n i f i c a n t that at the same time there were 2465 "husband only at home" and 9335 "wife only at home" families 2 caring f or 35,376 children (16,244 under the age of f i f t e e n ) . L e g i s l a t i v e j u r i s d i c t i o n regarding custody of the c h i l d has been held uniformly to be i n the provinces. In B.C., the provisions made i n Sec. 35 of the Act of 1857 were re-enacted unaltered as Sec. 20 of the Divorce and Matrimonial Causes Act, R.S.B.C., 1960, ch. 118. Under Sec. 20, action may be started to place the c h i l d under the protection of the Court of Chancery ( i n t h i s Province the Supreme Court of B r i t i s h Columbia). The ""Canada, Bureau of S t a t i s t i c s , Census of Canada 1961. Ottawa, Queen's P r i n t e r , 1962, 95-516, Table 73. 2 I b i d . - 63 -chief reason for t h i s section i n the 1857 Act was probably to protect the inheritance and f i n a n c i a l i n t e r e s t s of the c h i l d . Today this section i s supplemented by The Equal Guardianship of Infants Act, R.S.B.C., I960, Ch. 130, Sees. 12 and 13, which c l e a r l y show that custody or guardianship may be removed from a parent. When the court hears an action for divorce, nothing i n these acts forces the judge to make any order regarding the children of the marriage. However, the Supreme Court Rules, 1961, Province of B. C , require every statement of claim to include: "Sec. 11(1)(1) - the names and dates of b i r t h of a l l l i v i n g issue, and, i n the case of any such issue under 21 years of age, f u l l p a r t i c u l a r s of i t s present and proposed homes, maintenance, and education." Thus there i s no doubt, even i n an uncontested divorce where custody i s not being requested, the judge w i l l know something about plans for the children of the marriage. However, no automatic provisions e x i s t to provide for any independent inves t i g a t i o n of these plans. What pr i n c i p l e s determine the court decisions when pro-posed plans for the children are considered? So f a r as the Divorce and Matrimonial Causes Act i s concerned, the c r i t e r i o n 3 i s such provision . . . as i t may deem j u s t and proper." The Divorce and Matrimonial Causes Act. R.S.B.C., 1960, ch. 118, Sec. 20. - 64 -Equal Guardianship of Infants Act gives the c r i t e r i a as "such 4 order as i t may think f i t " and "having regard to the welfare of the i n f a n t , and to the conduct of the parents, and to the wishes as w e l l of the mother as of the f a t h e r . " 3 In using these c r i t e r i a precedents have established that "the governing p r i n -c i p l e i n deciding the question of custody i s that the paramount 6 factor to be considered i s the best interests of the c h i l d . " I f neither party to the divorce i s requesting custody and the divorce i s uncontested, the judge w i l l normally assume that the parents' plans, as outlined, w i l l ensure "the best in t e r e s t s of the c h i l d . " I f custody i s requested and neither the request nor the divorce are contested, he has one further piece of i n -formation provided to him i n the statement of the claim: "Sec. 11 ( l ) ( p ) , where the w r i t includes a claim f o r the custody of children, f u l l p a r t i c u l a r s of the facts upon which such claim i s founded." 7 However, i t i s a reasonable assumption that i n a majority of cases, unless the plans outlined i n the statement of 4 Divorce and Matrimonial Causes Act. R.S.B.C., I960, Ch. 130, Sec. 13. 5 I b i d . J u l i e n D. Payne, The Law and Practice Relating to Divorce. 2nd ed., Calgary, Burroughs and Company, Ltd., 1964, p. 611. 70rder LX - Divorce and Matrimonial Causes, i n Supreme  Court Rules, 1961. Province of B.C., V i c t o r i a , Queen's P r i n t e r , 1960, p. 139. - 65 -claim are obviously inadequate or unusual, the judge w i l l assume that the parents* plans ensure "the best interests of the c h i l d . " I f the custody request i s contested, the judge w i l l re-ceive the preceding d e t a i l s about both proposed plans, and w i l l have the opportunity to question the parents concerned and any witnesses they produce i n court. I f he wishes a further inde-pendent assessment, he may request the Superintendent of Child Welfare to obtain reports on the two proposed homes, and adjourn the hearing f or several months u n t i l these are received. For several reasons, these reports w i l l not be written u n t i l a f t e r the hearing and the judge's request even though both parties concerned may be well-known to s o c i a l agencies. Unless t h i s l a s t procedure and the consequent delay are decided on, the judge must decide from only a limi t e d amount of evidence what "the best interests of the c h i l d " i s . U n t i l t h i s century the "divine r i g h t s of parents" to d i s -pose of t h e i r children as they wished was generally accepted. In f a c t , the question of whether the mother, as w e l l as the father, had some claim to protect and plan for her c h i l d was s t i l l being debated, (The clause already quoted with i t s "as w w e l l of the mother", both s i g n i f i e s the recognition of the mother's claim, and i s evidence of how recently that recognition has occurred.) During the f i r s t h a l f of t h i s century an i n -creasing suspicion has developed that parental love i s not always - 66 -enough and that, at times, the most well-intentioned of parents are well-advised to seek expert help i n handling a child's problems. The co r o l l a r y developing i n recent years i s that the children of less perceptive and loving parents may even more frequently require the expert's help, and perhaps the state should devise methods to ensure that they receive i t , even i f t h e i r parents' rights have to be overruled. I t i s not surprising that with t h i s idea gaining accep-tance the law journals, e s p e c i a l l y , are beginning to question whether the judge has s u f f i c i e n t evidence to decide "the best in t e r e s t s of the c h i l d " , when he has only the parents' facts plus evidence from well-disposed but inexpert r e l a t i v e s and friends. Typical of the a r t i c l e suggesting the l i m i t a t i o n s of the present system i s the following quotation: . .. . . . i n reaching conclusions as to the best in t e r e s t s of a c h i l d and as to parental f i t n e s s , courts consider c r i t e r i a which, although u s e f u l , are inadequate, i n that they f a i l to force courts to consider e s s e n t i a l f a c t u a l , s o c i a l , medical, and psychological informa-t i o n . Consequently, a judge may have nothing but hi s common sense to guide him to a wise solution of a complex problem.o What i s also needed i s the professional assistance of experts to help the courts obtain e s s e n t i a l facts. The t r a d i t i o n a l adversary process i s inadequate i n custody cases.9 H. H. Foster, and D.J. Freed, "Child Custody," New York University Law-Review, v o l . 39 (May 1964), p. 438. 9 I b i d . , p. 441. - 67 -To back the suggestion that the parents are not capable of wisely planning for t h e i r children, there i s the a r t i c l e by a juvenile and family court judge who has counted h i s recent juvenile and family court cases and discovers that one-half of the children i n trouble with the law come from parents divorced two or more times.* - 0 Another a r t i c l e stresses the growing seriousness of the problem with the following comments: 'Longevity' one of the major causes of the increasing incidence of divorce. . . . Sharp drop i n mortality rate i n childhood and adolescence . . . . increasing numbers of minor children have divorced parents and f o r more years. . . . I t may be necessary, there, to develop new l e g a l instruments f o r the protection of the i n t e r e s t s of the children of divorced parents.H A review of non-legal l i t e r a t u r e revealed only three published reports of serious attempts to get some data regarding the ef f e c t of divorce on children. F i r s t , an a r t i c l e by F. Ivan Nye reported on the r e s u l t of attitude tests used on Washington high school students i n an attempt to discover i f the adjust-ment of children from broken homes was s i g n i f i c a n t l y d i f f e r e n t 12 from that of children from unhappy unbroken homes. He con-cluded " i n the l i g h t of these data, i t should be concluded that, ^ V i r g i l H. Langtry, "Juvenile Crime - An Approach to Solving Some Fundamental Problems Through Changes i n Divorse Laws," Oregon Law Review, v o l . 36 (February 1957), p. 98. . ii Lawrence S. Kubie, "Provisions for Care of Children of Divorced Parents: A new Legal Instrument," Yale Law Journal, v o l . 73, no. 7(June 1964), p. 1197. 12 F. Nye, "Child Adjustment i n Broken and i n Unhappy Un-broken Homes," Marriage and Family L i v i n g , v o l . 19(Nov.l957), pp. 356-361. ~ - 68 -contrary to fo l k knowledge, the adjustment of children i n homes broken by divorce i s not more d i f f i c u l t or unsuccessful than 13 i n homes broken otherwise." Secondly, Thomas P. Monahan did a survey of comparative delinquency data i n Philadelphia for 14 the years 1916, 1927, 1940, and 1956. At the beginning of th i s period the major reason f o r homes being broken was the death of a parent, i n the more recent years the home are frequently broken by separation or divorce. He concluded, The trend i n these Philadelphia data give no support to the b e l i e f i n the overriding importance of the s o c i a l l y broken home - - a s over against the orphaned home--in the p e r s i s t i n g pattern of youthful d e l i n -quency. A rather regular and high proportion of delinquent children have come from broken homes over the past f o r t y years i n Philadelphia. The changing character of broken homes has not altered the over-a l l proportion found.15 F i n a l l y , there i s the report by Judson T. Landis on a survey of the attitudes and ideas of 295 uni v e r s i t y students i n C a l i f o r n i a who were the children of divorced parents." 1^ He comments, In analyzing the data i t became clear that children of divorce cannot be treated as a homogeneous group. Divorce of parents affects children i n various ways, *""*Nye, p. 360. 14 .Ihomas P. Monahan, "The Trend i n Broken Homes Among Delinquent Children," Marriage and Family L i v i n g , v o l . 19 (November 1957), pp. 362-65. 1 5 I b i d . , p. 364. 16 Judson T. Landis, "The Trauma of Children when Parents Divorce," Marriage and Family L i v i n g , v o l . 22 (February I960), pp. 7-13; - -- 69 -depending upon such factors as the age of the ch i l d at the time of the divorce and how the ch i l d viewed the home s i t u a t i o n before he learned of the possible divorce.17 Thus, the only research reported i n the l i t e r a t u r e sug-gests that children are adversely affected by anything that breaks up t h e i r f i r s t family: death, divorce, or separation, and that they are equally harmed i f t h e i r parents remain un-happily l i v i n g together. This would support the idea that every attempt should be made to provide extra community coun-s e l l i n g f a c i l i t i e s and to adapt court procedures i n order to prevent marriages from breaking down, and to encourage a true r e c o n c i l i a t i o n p a r t i c u l a r l y of couples who are parents. There i s less evidence here to support those who believe that the divorcing parent i s less capable than other parents of judging the best int e r e s t s of his c h i l d . The l i t e r a t u r e quoted does not have i t s source i n B r i t i s h Columbia or even i n Canada. There appears to be almost no published research on Canadian divorces. In the 176 pages of 18 The Family i n Canada x o prepared for the Vanier Conference on the Family, the divorced and separated family gets j u s t a shade over one page (almost e n t i r e l y devoted to s t a t i s t i c a l material showing the flu c t u a t i o n i n the divorce r a t e ) . *"\andis, p. 7. 18 Fredrick E l k i n , The Family i n Canada, Ottawa, Canadian Conference on the Family, 1964. - 70 -The most detailed appraisal has been published i n the f i n a l report of the Commission on Ch r i s t i a n Marriage and 1 9 Divorce of the United Church of Canada. ' I t s comment on the lack of available research i s worth repeating: "there are scores of Canadians conducting research i n the breeding and care of poultry and livestock. There does not appear to be one f u l l -time research person i n Canada devoting attention to data about 20 marriage and i t s problems." This study takes time to consider 21 the possible problems of the children of divorcing parents, 22 and, of parents without partners or with common-law partners. I t supports the position of those who believe that the courts need more expert information than i s presently available to them; We urge that divorce courts use the services of people with special t r a i n i n g and s k i l l i n family matters. The minister, the trained s o c i a l i n v e s t i g a t o r , the marriage counsellor, the psychologist, the p s y c h i a t r i s t and others, have much to contribute when marriages are i n trouble.23 The only type of organized information that was found about divorced persons i n B r i t i s h Columbia was of the s t a t i s t i c a l 19 Commission on C h r i s t i a n Marriage and Divorce, Marriage  Breakdown. Divorce. Remarriage. Board of Ch r i s t i a n Education, United Church of Canada, 1962. 2 0 I b i d . , p. 4. 2 I I b i d . . pp. 30-31. 22 I b i d . , pp. 32-33. 23 I b i d . . p. 17. - 71 -v a r i e t y . Thus the United Church report included s t a t i s t i c s submitted by United Church ministers regarding divorced persons 24 marrying i n t h e i r churches i n 1950 and I960. In B. C. i n 1950, 10.57o of the brides and grooms had been divorced, and i n 1960 23.17. of them had been. ( I t should be remembered that because of the regulations of other denominations United Church ministers are often asked to perform marriage ceremonies for non-members when a divorced person i s involved.) This i s a far higher percentage than i s reported from any other part of Canada since i n 1960 the next closest c i t y , Toronto, had j u s t reached 10.37.. I t i s f a i r l y obvious from these figures that re-marriage not infrequently provides the children of the divorce with a two-parent family again. The material obtained during the 1961 census provided a l i t t l e information about a va r i e t y of B r i t i s h Columbia family 25 „ groups. Some comparisons are possible between the three types of one-parent f a m i l i e s ; divorced, widowed, and ". . . only at home". The l a t t e r presumably contains a large number of separated or deserted spouses as w e l l as a limit e d number whose separation i s neither voluntary nor permanent ( i . e . , separated by work requirements, chronically h o s p i t a l i z e d , or imprisoned spouses). 24 Commission on Christian Marriage and Divorce, p. 96. 25 Canada, Bureau of S t a t i s t i c s , Census of Canada 1961. Ottawa, Queen's P r i n t e r , 1962, pp. 93-516, Table 73. - 72 -The divorced appear to be the least disadvantaged f a m i l i e s , and have incomes averaging about $400 more per year f o r each sex than the ". . . only at home" group. They also provide f or a s l i g h t l y smaller family, and have a better chance of sharing a r e l a t i v e ' s home. Their f i f t e e n to eighteen year o l d children are more l i k e l y to be s t i l l i n school than are those of the widowed or the separated parent. S t a t i s t i c a l l y , therefore, i t seems that the "children of the marriage' that ends i n divorce, on the average, are provided f o r rather more s a t i s f a c t o r i l y than the children of a marriage which ends i n any other way. However, an alternate i n t e r p r e t a t i o n of these s t a t i s t i c s i s equally v a l i d . From t h i s viewpoint the s t a t i s t i c s merely prove that people who belong to the more prosperous and s o c i a l l y advantaged classes can best afford to pay for a divorce. No other s t a t i s t i c a l or researched s o c i a l information appears to e x i s t about the divorced family. Thus the entire question of how present procedure and l e g i s l a t i o n affects the children of the marriage, and of how co r r e c t l y "the best interests of the c h i l d " are assessed, remains a matter of opinion and personal experience. A further look can be taken at some of the cases decided i n B. C. courts to discover what type of decisions are being made. The most in t e r e s t i n g aspect of the more recent decisions regarding custody i n B.C. courts i s the lack of r i g i d i t y shown. - 73 -The fact that the mother i s the defender*t w i l l not prevent 26 custody of younger children being awarded to her. In recent years, a judge has exercised h i s prerogative and given custody to r e l a t i v e s other than the parents. Here two cases, almost twenty years apart i n time, show contrasting methods of protecting children. In 1942 the judge had decided that he could not leave children with the father and co-respondent. He believed they would keep i n touch with t h e i r mother, and the bitterness of her feelings toward the co-respondent would a f f e c t them as the years went on. However, he had doubts about the mother's a b i l i t y to r a i s e the children s a t i s f a c t o r i l y h erself. He awarded custody to her on condition that she and the children l i v e i n the home of her s i s t e r , with whose fondness f o r the children and understanding attitude the 27 judge had been impressed. In 1962 a judge considered another set of parents, neither of whom seemed very responsible, and awarded custody of t h e i r three-year o l d g i r l to the husband's s i s t e r so that the s i s t e r i f she desired, could l e g a l l y oppose 28 e i t h e r parent i n t e r f e r i n g with her care of the c h i l d . Wilson vs. Wilson and Fisher (1957) 21 WWR 281; Graham vs. Graham and Detta (1957) 22 WWR 372. 2 7Knox vs. Knox (1942) 3 WWR 612. 28 Hargreaves vs. Hargreaves and Cassiday (1960) 32 WWR 159. - 74 -These cases seem to have been decided on the basis of evidence presented i n the court and there i s nothing to suggest that custody reports were obtained from the Superintendent of Child Welfare. What addi t i o n a l guidance does the court have i f a hearing i s adjourned u n t i l a custody report i s received? P r o v i n c i a l l y , the instructions suggest that the s o c i a l worker should follow the o u t l i n e used f o r foster home investigations, p a r t i c u l a r l y noting the emotional and physical environment, and add a warning 29 that hearsay and rumours should not be embodied i n the report. The foster home investi g a t i o n outline covers the background of the "parents" involved, t h e i r m a r i t a l s i t u a t i o n , health, and attitudes toward the c h i l d . S i m i l a r d e t a i l i s given about any other occupants of the home including other children. The number of v i s i t s a worker w i l l make to acquire this information w i l l vary. L o c a l l y , the s o c i a l worker's immediate supervisor reads and approves the report before i t i s returned to V i c t o r i a . Here i t i s again read over by a supervisor, and normally nowa-days i t i s forwarded on to the judge without any change. That this service i s u t i l i z e d i n d i f f i c u l t cases i s shown by at least one recent j u d i c i a l decision. The boy involved was almost ten years o l d and had been l i v i n g with his father since 29 B r i t i s h Columbia, Department of S o c i a l Welfare, P o l i c y  Manual. V i c t o r i a , 1965, p. 81E. - 75 -h i s parents separated when he was e i g h t and one-half years o l d . His custody had been awarded to h i s f a t h e r when h i s uncontested d i v o r c e was obtained a sh o r t time l a t e r . During the year f o l -lowing the s e p a r a t i o n the f a t h e r f i r s t placed h i s son wit h another separated woman. L a t e r t h i s man s e t h i m s e l f up i n a new home and moved the woman, her c h i l d r e n , and h i s son i n a l s o . (Marriage was impossible because the whereabouts o f her deser-t i n g husband was unknown and she was, t h e r e f o r e , unable to o b t a i n a di v o r c e . ) The f i r s t w i f e a few months l a t e r remarried and a p p l i e d f o r the custody o f her son. Apparently, there were reasons to doubt the s t a b l e c h a r a c t e r o f both h e r s e l f and her new husband. The s o c i a l worker's comment th a t the f a t h e r ' s common-law w i f e i s "an unusually good mother" i s mentioned by the judge i n support of h i s d e c i s i o n not to award custody to the n a t u r a l mother."^ From these examples, i t i s apparent t h a t , i n B r i t i s h Columbia a t present, as a r e s u l t o f f o l l o w i n g the p r i n c i p l e o f "the best i n t e r e s t s o f the c h i l d " , d e c i s i o n s about custody can vary g r e a t l y according to the circumstances o f i n -d i v i d u a l cases. The l a s t case a l s o focuses on an e f f e c t of the present d i v o r c e l e g i s l a t i o n which has not been di s c u s s e d . This i s the Hind v s . Hind and Wilson (",962) 31 DLR (2nd) 622. - 76 -pr o b a b i l i t y that when people are unable to obtain a divorce some w i l l enter a common-law rela t i o n s h i p and keep t h e i r children with them. No figures e x i s t to show how numerous such families are. The children i n these situations enjoy the advantage of l i v i n g i n a two-parent family, but they s u f f e r several s o c i a l disadvantages. A change of t h e i r surname by adoption i s impossible, t h e i r parent may f e e l g u i l t y and trans-mit a sense of unworthiness to them, and they and t h e i r parent have no f i n a n c i a l protection i f the rela t i o n s h i p breaks down. F i n a l l y the relationship i s l i k e l y to r e s u l t i n addi t i o n a l children who are i l l e g i t i m a t e . These are the concealed victims of the present divorce l e g i s l a t i o n . This review has been concerned with the children of the marriage which ends i n divorce, and p a r t i c u l a r l y with the custody decisions made as permitted i n the divorce l e g i s l a t i o n . In B r i t i s h Columbia, no action need be taken by the court regarding the children, and i f t h e i r custody i s being l e f t unchanged and the reported plans sound s a t i s f a c t o r y the judge has scant means to investigate further. Only when custody i s being contested i s the judge certain to hear witnesses, and possibly to ask the Superintendent of Child Welfare f o r custody reports. Case decisions based on "the best int e r e s t s of the c h i l d " are varied. The modem stress on the c h i l d , rather than the parents, i s increasingly r a i s i n g the question of whether or not with present - 77 -procedures the judge can obtain s u f f i c i e n t information to make a good decision. Concern i s also f e l t f o r those children regarding whose custody no decision i s requested. Unfortunately, l i t t l e f a c t u a l evidence of any type i s avail a b l e about the children of divorced parents so no con-clusions are possible. Various suggestions are being made regarding methods of adjusting court procedures so that more attention i s paid to the children. The l i t t l e data found suggested that much more e f f o r t should be put into helping couples achieve a true r e c o n c i l i a t i o n when there are children involved. For t h i s reason those suggestions which involve methods to ensure that couples see a m a r i t a l counsellor before before they can s t a r t divorce proceedings seem the most desir -able. Such a counsellor could then discuss planning f o r the children with the parents i f divorce was necessary, r e f e r the few parents and children who required more help to suitable re-sources, and routinely supply the judge with an observer's opinion of the plans the parents wish to make. One other group of children i s affected by present divorce l e g i s l a t i o n although no information i s available about them. When present l e g i s l a t i o n prevents couples from obtaining a l e g a l divorce, they tend to enter a common-law re l a t i o n s h i p . The eff e c t of this on t h e i r children's a t t i t u d e s , and on the l a t e r - 78 -o f f s p r i n g of the new relationship i s a subject which needs more consideration. The present divorce l e g i s l a t i o n and pro-cedure c e r t a i n l y does not appear to be operating to strengthen the family t i e s f o r the children of the marriage. CHAPTER VI EXPERT OPINION Method I t was f e l t by the authors that points raised i n Chapters I I , I I I , IV, and V needed the v e r i f i c a t i o n and c l a r i f i c a t i o n that could be obtained by interviewing a number of people who had frequent contact with persons seeking a divorce. An i n t e r -viewing schedule was designed to tap the experts' opinions. I t was subdivided into seven sections: a general one to quickly seek out the main areas of d i s s a t i s f a c t i o n ; a section each on grounds and procedure designed to ascertain whether people were d i s s a t i s f i e d with the sole ground of adultery, the method of t r i a l or both; and sections on f i n a n c i a l costs, domicile, and the custody of children. A short section e n t i t l e d "Morality, the Church and Divorce" was included to t r y and i l l i c i t the current Catholic p o s i t i o n on the p o s s i b i l i t y of change and the way non-Catholics viewed the r o l e of the Church. The experts were chosen to represent seven major cate-gories: judges, lawyers, p o l i t i c i a n s , p s y c h i a t r i s t s , s o c i a l workers, ministers, and lay people involved i n divorce reform movements. Two members from each category were interviewed, - 80 -except i n the category of lay people where only the President of the Divorce Reform League was contacted. As so many of our respondents wished to remain anonymous, eit h e r because of t h e i r o f f i c i a l p o s i t i o n or private wishes, we decided not to name the remaining members. Lawyers were s l i g h t l y over-presented inas-much as both public representatives had had l e g a l t r a i n i n g . As stated, our experts were not chosen randomly from a l i s t of members of t h e i r professions, but rather because of t h e i r known concern with and knowledge of divorce matters. Hence i t i s possible that as a group they may express more l i b e r a l views than the bulk of the population. In e l i c i t i n g the answers to the questionnaire, we used an unstructured approach. The questions were put to the res-pondents but the i n t e r p r e t a t i o n was t h e i r decision. Depending on the fullness of the respondent's answers, i n d i v i d u a l ques-tionnaires took anywhere from one-half to one and one-half hours to complete. Our method of recording has been to state the question asked, followed by a summary of the answeres received. Where i t seemed s i g n i f i c a n t , the profession of the respondent was i d e n t i f i e d . General conclusions and comments appear i n a sep-arate section at the end of the chapter. - 81 -Interview Results General 1. From your experience, what are the major reasons people seek divorce? Seven of the respondents gave incompatability as the major reason f o r divorce. Four others wished to express this cause i n sharper terms and preferred the terms " i n f l e x i b i l i t y " , "disharmony, or immaturity" (the l a s t of these was also given as an underlying reason by two of the seven who used "incompata-b i l i t y " ) . Two respondents, both lawyers, avoided incompatability altogether; one of them saying that each case was so i n d i v i d u a l that there was no major cause, but by the time they reached a lawyer's o f f i c e , a l l divorce c l i e n t s were mentally disturbed to some degree. The other lawyer f e l t that f i n a n c i a l problems were the background cause of three-quarters of the cases seen as often the husband had been i r r e g u l a r l y employed and there were heavy debts they quarreled over. The other two causes which were mentioned by more than two respondents were mental i l l n e s s (four) and separation (three). In view of the grounds on which divorce i s granted i n B.C., i t i s in t e r e s t i n g that only two respondents, both of them - 82 -i n the l e g a l profession, even mentioned adultery as being among the major causes f o r divorce. * * * * * * * * * * 2. Do you know of cases where people who wish to are unable to obtain a divorce? Do you know the reason? Only three respondents re p l i e d negatively to this ques-t i o n , a l l the rest knew cases where one spouse, at le a s t , wished a divorce but could not obtain i t . The most frequently mentioned reason ( f i v e ) was the ref u s a l of both spouses to give the other grounds, and two more broadly stated r e p l i e s doubtless intended to include t h i s reason i n t h e i r answer. I t should be noted that one clergyman c l e a r l y divided such cases he knew into two types: those where r e l i g i o u s scruples prevented the couples acting, and those where he f e l t the basic reason was h o s t i l i t y . The next two most mentioned reasons were desertion with the spouse*s present whereabouts being unknown (four plus the two broad responses), and economic reasons (four). The next most mentioned reason (three plus one of the broad answers) was ref u s a l of one spouse to take action although grounds already existed. Long imprisonment, lengthy mental i l l n e s s , and a problem because of domicile were the other reasons c i t e d . * * * * * * * * * * - 83 -3. Are you s a t i s f i e d or d i s s a t i s f i e d with existent divorce l e g i s l a t i o n and procedures? Why? There was unanimous d i s s a t i s f a c t i o n with present sub-stantive divorce l e g i s l a t i o n , and only two people were s a t i s -f i e d with the present divorce procedure. One of these two, however, made i t clear l a t e r i n the interview that he was strongly opposed to one aspect of B.C.'s present procedure. The major objection (nine) was that wider range of grounds should e x i s t as the present law was not related to r e a l i t y . Almost as many respondents (eight) complained i n some form about the effe c t the present law had i n lowering the par-t i c i p a n t s ' self-respect or i n having detrimental effects on the children. Two other objections were raised, each from a couple of respondents; f i r s t , that disrespect for the law i s encouraged, and second, that a proper understanding of the meaning of marriage i s discouraged. * * * * * * * * * * Grounds 1. In your experience, i s adultery on the part of one partner of the marriage the main cause of ma r i t a l breakdown? In the opinion of a l l respondents, adultery i s a symptom rather than the cause of ma r i t a l breakdown. One of the ministers - 84 -expressed the view that the adulterous partner sometimes used th i s approach to shock his spouse into changing. * * * * * * * * * * 2. Do you consider uncondoned adultery should be the sole basis f o r granting a divorce? No one f e l t that uncondoned adultery should be the sole grounds f o r granting a divorce. * * * * * * * * * * 3. I f the answer to question 2 i s no, on what other basis would you consider divorce should be granted? In considering what grounds would be s u i t a b l e , the ex-perts expressed a f a i r l y wide range of opinion. In general, most f e l t that the grounds used i n England - cru e l t y , desertion, adultery, and incurable mental i l l n e s s - were s a t i s f a c t o r y grounds. However, eight of the thirteen people interviewed f e l t that complete ma r i t a l breakdown, generally referred to as i n -compatability, should also be a ground. The Roman Catholic p r i e s t was among the eight respondents favouring divorce i n cases where suitable evidence shows complete m a r i t a l breakdown. * * * * * * * * * * - 85 -4. Do you think condonation, connivance and c o l l u s i o n are sound absolute bars to divorce? Seven people f e l t that condonation, c o l l u s i o n and con-nivance were sound absolute bars under the present system of law. Generally, i t was thought that c o l l u s i o n was interpreted l i b e r a l l y and limited to a fraud being perpetrated on the courts. I t was thought that condonation of previous adultery should be assumed i n cases of " t r i a l r e c o n c i l i a t i o n " because i t was f e l t that a sincere attempt a t r e c o n c i l i a t i o n could not occur i f one partner held the whip of divorce over the other. The f a c t that condoned adultery can be revived by a future marital offense was f e l t to be s u f f i c i e n t protection should one of the parties wish to commence proceedings f o r divorce a f t e r f a i l u r e of " t r i a l r e c o n c i l i a t i o n " . Six people f e l t that the three absolute bars were not sound bars. They f e l t that the state of the divorce laws i n Canada were such to force many seeking the d i s s o l u t i o n o f t h e i r marriage to make c o l l u s i v e bargains with t h e i r spouses. Having these bars was f e l t to add to the s t u p i d i t i e s of the law. * * * * * * * * * * - 86 -5. Do you know any cases where a divorce was refused on grounds of condonation, connivance or collusion? I f so, how many? I f so, what were the circumstances surrounding the case? Only lawyers and judges knew of cases where d e f i n i t e l y one of the absolute bars led to the divorce being refused. Connivance was seldom evoked but cases were refused on the grounds of c o l l u s i o n and condonation. The judges f e l t that c o l l u s i o n should be interpreted as an intent to commit a fraud on the court and would refuse a divorce when this intent was present. Condonation has also been used as a bar. In t e r e s t i n g l y one lawyer f e l t the judges were lenient i n t h e i r i n t e r p r e t a t i o n of condonation, the other f e l t they were not. In discussing c o l l u s i o n , one respondent expressed the be l i e f that lawyers "set up" t h e i r cases so that they never had f i r s t hand knowledge of any co l l u s i o n . For example, a lawyer may refuse to handle a case because the couple have made a c o l l u s i v e bargain, but the couple learn by the experience and the next lawyer consulted does not hear of the agreement. * * * * * * * * * * 6. Do you know any cases where the p l a i n t i f f was refused a divorce on the sole grounds of adultery admitted i n wri t i n g to the presiding judge? - 87 -No one knew of a case where a judge refused to exercise his d i s c r e t i o n i n favor of the p l a i n t i f f except where the defendant had cross-petitioned. To quote one judge: "we try to grant a decree when the court feels the marriage has had the course". * * * * * * * * * * 7. Given that people are confronted with the problem of wishing to dissolve t h e i r marriage, do you think they see the law as a procedure enabling them to do th i s l e g a l l y or as presenting a further problem o r hurdle requiring circum-vention i n the form of dishonesty and fraudulent behavior i n order to obtain t h e i r release from the marriage? A l l but one respondent f e l t that people seeking divorce saw the law as a hurdle that one had to pass through to obtain t h e i r ends. However, not everyone f e l t that fraud or dishonesty was involved. One respondent said that h i s t o r i c a l l y the law was set up as a hurdle and i s not intended to be an enabling pro-cedure. The one respondent who f e l t that the law was seen simply as a method of enabling people to get a divorce, was of the opinion that fraud was not as common as many people supposed. He f e l t that the widespread b e l i e f i n the "set up" divorce was a method society had found to gloss over the unpleasant fact - 88 -that many of i t s most respectable c i t i z e n s were indeed adul-terers . Both judges f e l t that the large majority of cases coming before them were bona f i d e . Other respondents also expressed the opinion that usually the adultery was bona fid e and that the deceits practiced on the courts were more i n terms of c o l l u s i v e bargains and the f a l s e importance given to the adultery. Theoretically, the horror of one spouse at the i n i q u i t y of the adulterous spouse compelIs her to take action. In r e a l i t y , the adultery i s often not the matter which has caused, or even contributed to the mari t a l breakup as i t has occurred a f t e r the couple has separated. One lawyer voiced the opinion that when one spouse or the other a c t u a l l y began divorce proceedings, i t was because they or t h e i r spouse was l i v i n g i n a common law rel a t i o n s h i p . Divorce was not thought necessary u n t i l the p o s s i b i l i t y of remarriage occurred. * * * * * * * * * * Procedures 1. Do you think the present system of t r i a l r e s u l t s i n a s u f f i c i e n t exploration into the causes of mar i t a l breakdown? No one f e l t that the present system of t r i a l resulted i n a s u f f i c i e n t exploration of the causes of the mari t a l breakdown. One respondent did add, that i n defended divorces the exploration - 89 -i s quite thorough but i s dine, i n c i d e n t l y , i n the course of proving other points. As a judge pointed out, the p l a i n t i f f i s e n t i t l e d to a divorce i f the adultery i s proven and the t r i a l procedure i s designed to prove adultery as quickly and e f f i c i e n t l y as possible. * * * * * * * * * * 2. In'your experience, what are the reactions of people when they take the matter of adultery into court? Three respondents did not wish to express an opinion about t h i s . I n t e r e s t i n g l y , a l l three are pr a c t i c i n g lawyers. Four respondents f e l t that people looked upon t h e i r day i n court as a necessary e v i l but that they were not too d i s -turbed by i t . A l l added that, depending on the person's moral code and personal involvement i n the procedure, i t could be very traumatic. One respondent f e l t that people treated the whole thing as a joke and two mentioned that people were cy n i c a l at having successfully deceived the courts. A p s y c h i a t r i s t f e l t that while i n i t i a l l y people experienced g u i l t , the l a s t i n g emotion was one of h o s t i l i t y . Both judges were of the opinion that most people were disturbed by t h e i r court appearance. To quote one -Friday i s a pretty sad day around here. * * * * * * * * * * - 90 -3. In your opinion, what effect, i f any, do the present divorce laws and procedures have on the citizen's respect for the law of the land? Ten respondents f e l t that the present divorce laws lessened the citizen's respect for law generally; one lawyer did not feel that people's respect for the lav; was in any way lessened, except when the divorce was fraudulent. Neither judge f e l t that the people's respect for the law was lessened. One f e l t that chincanery was less widespread than supposed and that only those engaged i n fraud had their respect for the law lessened. The other judge f e l t that the average citizen was aware that the courts were unhappy with the situation and were trying to effect change. Also, he did not feel any dissatisfaction with the divorce laws carried over to other laws. * * * * * * * * * * 4. What alternative type of t r i a l proceedings, i f any, do you deem appropriate i n divorce proceedings? Only one person was entirely happy with the present system of t r i a l , although wanting the grounds expanded. Two people f e l t that a private t r i a l was more appropriate but would retain the present adversary procedure. A lawyer was satisfied - 91 -with the present system of t r i a l but f e l t that i t should occur at the County Court l e v e l , freeing the Supreme Court for more important business. A judge favoured a system whereby the couple could be referred to a marriage counsellor before the case was set f o r t r i a l . He cite d the Los Angelos courts as a sa t i s f a c t o r y example of what he saw as appropriate. The other eight respondents f e l t that the adversary system of t r i a l was not appropriate to divorce cases, and that c o n c i l i a t i o n courts or boards were more s a t i s f a c t o r y . The boards were conceived as m u l t i - d i s c i p l i n a r y with such members as judges, p s y c h i a t r i s t s , ministers, s o c i o l o g i s t s , lawyers, and s o c i a l workers s i t t i n g . Most envisioned counselling ser-vices attached to the courts (and one p s y c h i a t r i s t , one s o c i a l worker, a lawyer and a p r i e s t ) , r e f e r r a l s being made before the couple was seen by the board. Some f e l t that these services should be compulsory, especially when children were involved. As one would expect, respondents trained i n the le g a l profession were more i n c l i n e d to r e t a i n the adversary system of t r i a l , although two of the strongest advocates of the "board" system were pr a c t i c i n g lawyers. * * * * * * * * * * - 92 -Fin a n c i a l Costs of Divorce Proceedings 1. What i s the cost of obtaining an undefended divorce? The lowest figure quoted f o r costs was $150 for the lawyer's fee alone. This figure was cite d by a s o c i a l worker and could be low. Court disbursements and detective fees were extra. The lawyers interviewed charged between $350 and $400 excluding disbursements. Fees of up to $750 f o r an undefended divorce were known.. In an uncomplicated case a detective w i l l cost $75 to $125. I f a person must be watched over a long period of time, t h i s cost r i s e s considerably. As one would expect, respondents who dealt p r i m a r i l y with the lower income groups quoted lower figures than those whose c l i e n t e l were from the middle and upper classes. * * * * * * * * * * 2. What i s the po t e n t i a l cost to either or both partners, of a defended divorce? The costs of a defended divorce was at least double that of the undefended divorce and could run to w e l l over $2000, depending on the length of t r i a l , the detective fees etc. * * * * * * * * * * - 93 -3. On what basis are costs awarded by the court as between the parties to a divorce proceeding? The respondents who answered th i s question (lawyers and judges) indicated that the wife, whether p l a i n t i f f or defendent, was e n t i t l e d to her costs unless her case was found to be f r i -volous. Even then her lawyer must be found to be acting i n bad f a i t h to be deprived of his fee, which the husband i s l i a b l e f o r . The husband, of course, can sometimes recover costs and damages from the male co-defendent. A g u i l t y wife might not recover costs i f she has a private estate. Many f e l t that t h i s automatic granting of the costs to the woman was un f a i r i n the l i g h t of today's s o c i a l conditions. One of the lawyers f e l t that i t a c t u a l l y worked against the woman as the husband was less i n c l i n e d to be generous about the settlement i f he had to pay the costs. Also husbands paying support often could not afford to pay costs and support and f e l l hopelessly behind i n support payments and were faced with the threat of j a i l . I f the husband did go to j a i l , the wife of course received no support and by the time the husband was re--leased, he was so f a r behind i n his payments that the temptation to leave the province or country was overwhelming. * * * * * * * * * * - 94 -4 . Do you know of cases where the commencement of divorce proceedings was delayed because of the i n a b i l i t y of the person to afford the necessary l e g a l and court fees? How common i s this? A l l respondents had heard of or personally known of people where the commencement of proceedings had been delayed by lack of finances. Although no one had exact s t a t i s t i c s , i t was f e l t t h i s was quite common, especially among deserted wives. * * * * * * * * * * * 5. Do you know cases where commencement of divorce proceedings was prevented by reason of the f i n a n c i a l circumstances of a person who would otherwise take such proceedings? How common i s this? Two respondents, one a lawyer and one a s o c i a l worker, f e l t that anyone who r e a l l y wanted a divorce eventually got the money. A lawyer did not f e e l even deserted wives could not ra i s e the money. Apparently, banks w i l l lend the woman money on the basis of a lawyer's l e t t e r . The rest of the sample, except f o r two who had no opinion, knew cases where people never commenced divorce proceedings because of lack of money. Again, no s t a t i s t i c s were available - 95 -but i t was f e l t t h i s was p a r t i c u l a r l y prevalent among deserted wives. Although e n t i t l e d to costs, a wife must pay the lawyer at l e a s t h i s disbursements i n advance. Often, too, the husband i s d e s t i t u t e and cannot pay costs even i f assessed them. * * * * * * * * * * Domicile 1. In your opinion, have problems i n r e l a t i o n to proof of domicile increased the fees for divorce? The r e p l i e s to th i s question varied according to the occupation of those interviewed. Four respondents did not know: the ministers and the p s y c h i a t r i s t s . The two s o c i a l workers and two of those engaged i n p o l i t i c a l action believed the answer was affirmative. The two pr a c t i s i n g lawyers and the judges, plus one p o l i t i c i a n a l l r e p l i e d that fees were not i n -creased by these problems, but several of them went on to point out that other costs to the c l i e n t could increase i f domicile w was d i f f i c u l t to prove and i t was necessary to obtain evidence by a f f i d a v i t from other j u r i s d i c t i o n s , etc. * * * * * * * * * * 2. What i s your opinion concerning the fact that a wife has no domicile other than that of her husband? Is t h i s - 96 -sound? What d i f f i c u l t i e s , i f any, i n your experiences does t h i s present? What remedies would you suggest? Four of those interviewed said c l e a r l y that a woman should be able to have her own domicile, and two more observed that the present law i s archaic. D i f f i c u l t i e s were seen a r i s i n g from the present s i t u a t i o n , although those professionally i n -volved with the law knew a va r i e t y of devices available f o r overcoming the problem i n many cases. The main suggestion f o r solution seemed to be the idea that the wife should be free to esta b l i s h her own domicile, although some of the respondents foresaw d i f f i c u l t i e s a r i s i n g out of t h i s . One of those engaged i n p o l i t i c s suggested Canada-wide domicile. * * * * * * * * * * 3. Do you know of cases where the cost involved i n going to the husband's domicile has meant a woman was unable to secure a divorce? The majority of the respondents gave an affirmative answer. Only one minister and one s o c i a l worker had known no cases, and one person engaged i n p o l i t i c s had had no personal knowledge but f e l t such cases might e x i s t . The two lawyers replying f e l t that i n v a r i a b l y with the combination of a good lawyer and a r e a l desire f o r divorce, this problem did not present an impassable b a r r i e r . On the - 97 -o t h e r hand, two others i n the l e g a l p r o f e s s i o n each knew o f a very few cases, as d i d the two p s y c h i a t r i s t s , w h i l e two people i n v o l v e d i n p o l i t i c a l a c t i o n and one s o c i a l worker a l l s t a t e d they knew o f a l a r g e number o f cases. There seems no doubt that such a cost does prevent d i v o r c e i n some cases, but the number o f people a f f e c t e d i s u n c e r t a i n . * * * * * * * * * * 4. Do you know o f cases where a d i v o r c e has been postponed o r proceedings never s t a r t e d because o f d i f f i c u l t y i n v o l v e d i n proving the d o m i c i l e o f a migrant husband o r one who wishes to evade the court? This question r e c e i v e d the same m a j o r i t y o f a f f i r m a t i v e answers as the preceding one, w i t h the i n t e r e s t i n g v a r i a t i o n that the f o u r people i n v o l v e d i n the l e g a l p r o f e s s i o n switched s i d e s " One s o c i a l worker knew o f no cases where the problem was proving d o m i c i l e , but o f cases where the spouse could not be l o c a t e d . F i v e respondents knew o f a few cases, and the two i n v o l v e d w i t h s o c i a l a c t i o n knew o f la r g e numbers o f such cases. * * * * * * * * * * C h i l d r e n and Custody 1. What e f f e c t , i f any, has the i n a b i l i t y to get a d i v o r c e had on c h i l d r e n of the marriage? - 98 -The r e p l i e s to this question generally indicated that the ef f e c t was undesirable. One lawyer thought the r e s u l t might be good, if_ the husband stayed i n the home as a r e s u l t , and one s o c i a l worker mentioned that a few exceptions occurred where the partners concerned f i n a l l y made a sa t i s f a c t o r y ad-justment to each other because they could not escape the marriage. However, th i s respondent also pointed out that the effec t more often was bad fo r the c h i l d , because of continued i n t e r n a l s t r i f e i n the family, and this was the opinion of both p s y c h i a t r i s t s and both ministers. Several respondents pointed out that very often the parent who had the children entered a common-law r e l a t i o n s h i p , although they varied i n t h e i r opinion as to the ef f e c t this had on the children. Three respondents pointed out that e i t h e r staying to-gether because of i n a b i l i t y to get divorced, or getting the divorce, had bad effects on the children. * * * * * * * * * * * 2. Do you know of cases where parents with children are l i v i n g i n a common-law relationship because of the i n a b i l i t y of one of the parents to get a divorce? I f so, how long has this continued? - 99 -A l l the respondents replied that they knew of such cases, and a l l apparently knew of more than one such case. (In com-p i l i n g r e s u l t s , the c o n f l i c t between the answer to t h i s question and to question 2 i n the General section f o r three respondents was noted and the responses reviewed to see i f there was any reason for the v a r i a t i o n . I t would seem that i n replying to this question the respondents based t h e i r answers on less recent experience than they had e a r l i e r thought about, and also less intimate acquaintance with the parties involved.) Some of the respondents indicated that they had knowledge of one hundred or more such families through t h e i r work. That these were very often long-lasting relationships continuing for years was also brought out c l e a r l y i n t h e i r answers. In a few cases among them, i t was suggested that the i n a b i l i t y to obtain a divorce was suspected not to be the r e a l reason f o r continuing as a common law r e l a t i o n s h i p , but the people involved "emotionally don't want", "won't be bothered", or "could have got money sooner". * * * * * * * * * * 3. In cases you know where divorces were obtained, did you f e e l more help was needed i n planning f o r the children than was available? One person interested i n l e g i s l a t i v e action r e p l i e d that the plans made by the parents were usually s a t i s f a c t o r y , and - 100 -one other had had too l i t t l e contact with such families to know. One minister and one lawyer f e l t that i n t h e i r experience the families who needed help had been getting i t from s o c i a l agencies and had been able to make sa t i s f a c t o r y plans. The remaining nine respondents a l l f e l t d e f i n i t e l y there should be a f l e x i b l e method so that help was given to the parents and children i n the early stages of the m a r i t a l breakdown, so that less pressure was f e l t by the children, even i f t h e i r parents did get divorced. One lawyer suggested that the welfare department should have a d i v i s i o n to help parents make mutually s a t i s f a c t o r y plans f o r children, and to readjust them when necessary >, without l e g a l custody decisions being asked f o r . * * * * * * * * * * 4. Were custody reports obtained by the court from the Superintendent of Child Welfare, and i f so, did they con-tr i b u t e to a wise disposition? Five respondents were unsure whether or not they knew cases where reports had been obtained and therefore had no opinions. Two lawyers indicated that they were d e f i n i t e l y opposed to permitting custody reports to be obtained as they had no confidence i n the judgement and i m p a r t i a l i t y of the s o c i a l workers making the reports. This opinion was shared by one - 101 -s o c i a l worker, one of those i n the f i e l d of s o c i a l action, and one member of the j u d i c i a r y . In fact only two of those replying thought the reports contributed to a good d i s p o s i t i o n ; one lawyer and one s o c i a l worker. I t i s worth noting that the lawyer's reason for favoring the reports indicates a misunder-standing of the probable subsequent action of the s o c i a l workers, as the presumption was made that supervision of the children would continue. Also, l a t e r remarks of the s o c i a l worker sug-gested that the reply was c h i e f l y based on experience outside B r i t i s h Columbia. * * * * * * * * * * 5. Should the court be required to have an investi g a t i o n made with regard to the welfare of the children as a condition of granting a divorce decree? There was almost complete agreement that the court should be so required, but the additional comment showed that the question was receiving varying interpretations. Two of the le g a l profession pointed out that the divorce decree should not be conditional on t h i s , apparently thinking of problems i f investig a t i o n could not be promptly done, and one of these res-pondents had already suggested that plans f o r the children be counselled by the welfare department, generally without court involvement. One judge and one s o c i a l worker suggested that - 102 -only some cases should be investigated. The remaining nine r e p l i e d a f f i r m a t i v e l y . Of those who elaborated t h e i r answer, two suggested s o c i a l workers or mari-t a l counsellors attached to the court, and two others wanted the nature of the divorce court i t s e l f changed to permit other d i s c i p l i n e s to share the bench. * * * * * * * * * * 6. Are there any other suggestion you would l i k e to make whereby the interests of the children of divorced parents would be adequately protected? The r e p l i e s to this question show almost everyone thought that the present s i t u a t i o n could be improved although they might have no ideas, except those already discussed about how. Five stressed some form of provision permitting m a r i t a l coun-s e l l i n g to s t a r t as soon as couples s t a r t to think about divorce, the counsellor probably being attached to the court. Three wanted arrangement to ensure in v e s t i g a t i o n of proposed plans probably by more than one d i s c i p l i n e , such as "a panel of ex-perts". One person suggested that i f both parents were very antagonistic to each other so the children got used as weapons, the government should provide whatever subsidization was necess-ary to enable the children to be sent to private boarding schools - 103 -so they would be away from t h e i r parents f o r a large part of the year. I t was f e l t t h is would cost less eventually than the present cost i n emotionally damaged c i t i z e n s . Thinking of s i m i l a r types of situations where one parent i s c l i n g i n g to possession of a c h i l d c h i e f l y to hurt the other parent, one s o c i a l worker suggested that, for children who were quite young when divorce occurred, the court should be able to waive the consent to adoption of the parent who has been denied custody so that desirable step-parent adoptions could be com-pleted. * * * * * * * * * * Moral i t y . The Church, and Divorce 1. Do you view marriage as a sacrament, a s o c i a l contract, or some combination of the two? How does this viewpoint a f f e c t your feelings around divorce? Almost a l l respondents r e p l i e d that they viewed marriage as some combination of the two, although three of them indicated that personally they f e l t the sacramental element was the more important factor i n the combination. One lawyer simply viewed i t as a contract, and another stated that i t was simply a status. Generally, the respondents said that they t r i e d to view divorce o b j e c t i v e l y while i n t h e i r professional r o l e . Three respondents (two of whom had not mentioned personal stress on - 104 -the sacramental element) said t h e i r own a t t i t u d e made them believe that more care should be taken by society before per-m i t t i n g marriage so that divorce would not so often be necessary. * * * * * * * * * * 2. What part do you f e e l churches or r e l i g i o u s organizations play i n retarding or advancing changes i n divorce law and procedure? What part, i f any, do you f e e l they should play? A l l accepted, i n some way, the idea that h i s t o r i c a l l y the C h r i s t i a n church has acted to discourage divorce. However, there was a range of viewpoint regarding what the s i t u a t i o n has been i n the more recent past, and what i t i s today. Four res-pondents pointed out that during t h i s period the d i f f e r e n t denominations have been working i n d i f f e r e n t d i r e c t i o n s . Five pointed out i n various ways that the recent p o l i t i c a l a t t i t u d e has been perhaps based on what the p o l i t i c i a n s think t h e i r constituents think t h e i r church thinks on the issue, no one having dared to test t h e i r assumptions f o r a number of years. The Protestant minister pointed out that the church leaders were more advanced today than many of t h e i r congregation i n t h e i r ideas, and that there was an even larger mass of people - 105 -who based t h e i r attitudes on what they understood the church believed when they l a s t v i s i t e d i t ten years ago. Two respondents (not Roman Catholic) pointed out that the Anglican Church, as much as the Roman Catholic, discouraged change i n the divorce law, one of them f e e l i n g the claim that the Roman Catholic atti t u d e prevented change was merely con-venient scapegoating. The Roman Catholic p r i e s t explained that much thought has recently been given by his church to this problem. When the o r i g i n a l marriage was simply a c i v i l contract a c i v i l divorce as a remedy to protect marriage and the family was not unacceptable. Furthermore, where a c i v i l divorce i s obtained a f t e r a church marriage and the spouses do not remarry, continued f u l l p a r t i -c i p a t i o n i n the church i s encouraged. Even i n cases where remarriage has occurred church attendance i s welcomed, and i n some parts of Europe these people are being admitted p r i v a t e l y to the sacrament. The Roman Catholic Archbishop of Cairo presented a report l a s t f a l l which presented evidence that the early fathers allowed remarriage a f t e r divorce, and studies based on new insights are s t i l l i n progress. Adultery has never been accepted by the Roman Catholic church as a v a l i d ground for breaking a marriage (they think t h i s i s a Protestant misin-terpretation of s c r i p t u r e ) , but hate i s a much greater s i n . - 106 -Three respondents suggested, i n d i f f e r e n t terms, that the churches should help provide more and better pre-marital edu-cation and/or counselling at le a s t f o r those people getting married i n a church, and also marriage counselling. One of them plus another respondent mentioned that the ministers should be bringing the more recent views of t h e i r church to the attention of t h e i r congregations. * * * * * * * * * * Conclusions and Comments General While those interviewed were selected because they were i n f i e l d s of t h e i r profession or avocation which increased t h e i r opportunity to meet divorced people, they were also chosen i n the expectation that they would see divorce from several d i f f e r -ent viewpoints. I t i s , therefore, s i g n i f i c a n t that they were a l l d i s s a t i s f i e d with the present l e g i s l a t i o n . A l l of them had known people who wanted divorce but who could not obtain i t . This supports the b e l i e f that the present l e g i s l a t i o n i s pre-venting l e g a l divorce, although i t i s not preventing separation. None of those interviewed believed adultery was r e a l l y the cause of divorce. The consensus of the majority was that the necessity f o r divorce arose not from any s p e c i f i c set of - 107 -actions, but, from the personal fe e l i n g s , a t t i t u d e s , and reac-tions of the two individuals concerned. This would seem to support the viewpoint of those reformers who say that, although increasing the number of grounds on which divorce i s available i s better than no change, what i s r e a l l y required i s a change i n the whole "offense" system. Procedure and Grounds I t was generally observed that people with t r a i n i n g i n law tended to be more s a t i s f i e d with e x i s t i n g procedure than those who were trained i n other professions. However, th i s was by no means a clear-cut d i v i s i o n and would vary from question to question. For example, judges and lawyers were more s a t i s -f i e d with the absolute bars of connivance, condonation, and c o l l u s i o n . They were also less i n c l i n e d to believe that a large number of divorces were fraudulent. Also the changes lawyers envisioned tended to be more i n terms of enlarging the grounds on which divorce could be obtained rather than changing from an adversary system to a mutual consent system. However, two of the lawyers were among our more r a d i c a l respondents. The age of the more conservative respondents tended to be somewhat older than the mean. Generally, however, the given responses would seem to be a function of personality rather than profession or age. - 108 -One concludes that the expert opinion was that at very leas t grounds should be considerably expanded. Many f e l t that the adversary system of t r i a l was inappropriate and divorce by mutual consent should be allowed. However, the advocates of divorce by mutual consent were not by any means undervaluing the importance and sanctity of the family. In f a c t , t h e i r usual condition, that counselling be strongly recommended and i n some cases compulsory, showed a r e a l concern with the fate of the family. Every respondent seemed to f e e l that when a couple f e l t they were unable to l i v e together happily a f t e r honestly try i n g to reconcile, the marriage should be dissolved. The controversy around presumed fraud i n the form of manufactured evidence of adultery was inconclusive. Lay people had more tendency to f e e l i t was prevalent than lawyers. The judges f e l t most cases before them were bona f i d e . One mentioned that, i n many cases, the proof of adultery was the existence of a common-law re l a t i o n s h i p . One lawyer f e l t the big problem was adultery on the part of both spouses and the hypocrisy of "begging d i s c r e t i o n f o r the p l a i n t i f f " . Another lawyer said that when evidence was fraudulent i t was because of extenuating circumstances; f o r example, to protect an intended second wife, or because the husband being sued i s impotent or homosexual, etc. However, the hypocrisy of the law generally was attested to by a l l respondents. I t was f e l t that the very form of t r i a l - 109 -gives the impression of something being "put over" on the law. The law implies that adultery i s a heinous offense. Often, however, both parties are adulterers and one begs the courts d i s c r e t i o n . Also the t r i a l i s supposed to be an adversary one, but i n actual fact i t i s often mutually agreed by the parties that a divorce at this time i s desirable and they sometimes help to make grounds av a i l a b l e . Also there should be no bargains made between the parties to a divorce when, i n a c t u a l i t y , bargains of a c o l l u s i v e nature often e x i s t but are not mentioned. The law also makes much of i t s desire to protect the family and especially to seek a f t e r the welfare of the children. In court, the children are mentioned only i n passing and c e r t a i n l y there i s no counselling service offered to keep the family together. I t concerns i t s e l f with a single physical act, which i s not r e a l i s t i c . They w i l l remain thus u n t i l the law recognizes the r e a l i t i e s of ma r i t a l breakdown and r e f l e c t s them i n r a t i o n a l divorce laws and procedures. Fi n a n c i a l Costs of Divorce Proceedings Although divorce i s construed as a redress f o r an un-bearable wrong, i n a c t u a l i t y i t i s a luxury item. To obtain a divorce one does not have to be r i c h but one must have a steady income to budget from. Many deserted wives, and husbands struggling on inadequate and flu c t u a t i n g incomes to raise a family - 110 -cannot afford a divorce. This leads to one-parent families and common-law relationships amongst "the poor". The very existence of these poor family conditions i s often c i t e d as one reason f o r the troubles of the delinquent c h i l d i n adjus-ti n g to the larger society. Although we do not suggest a le g a l aid system for divorce cases w i l l erradicate a l l s o c i a l i l l s , i t would seem to give the p o s s i b i l i t y of these families forming a more stable adjustment. Domicile Although the people interviewed were well-educated, and most highly trained professionally, some of the same vagueness regarding the actual degree to which domicile i s responsible f o r problems appeared as had been noted i n the l i t e r a t u r e . Obviously the less c l o s e l y involved observers are vague about where a problem arises from the d i f f i c u l t y i n simply locating the spouse, or from a d i f f i c u l t y i n proving domicile. The general opinion was that some change should be made i n the pre-sent law, but there was no agreement regarding how many people were being injured by the present law, or how large a problem i t caused. There was no doubt from the r e p l i e s that some people were being adversely affected. The most frequently suggested so l u t i o n seemed to be a law allowing the woman to establi s h her own domicile. I t was noticeable that the problem a r i s i n g from the husband being - I l l -outside of Canada was a much more prevalent source of d i f f i c u l t y than problems a r i s i n g because he i s i n a d i f f e r e n t province. Children and Custody I t became clear from the repl i e s i n t h i s section that the present law i s not protecting the children of the marriage at a l l from trauma because of t h e i r parents' antagonism. Almost without exception the respondents f e l t they saw as many bad effects r e s u l t i n g f o r children whose parents had not been able to get the divorce as for children whose parents were divorced. The viewpoint that i f divorce i s not obtained a common-law relationship often r e s u l t s , received strong support from the experience of those interviewed, as they a l l knew at least a few cases. Many of these were long-lasting r e l a t i o n s h i p s , and they existed apparently because at l e a s t one person involved could not obtain a divorce. There was a general f e e l i n g that more help should be provided to parents, preferably before the divorce got into court, p a r t l y to t r y to reconcile them, but at least to help them to understand t h e i r children's feelings and reach an ami-cable agreement on plans. The present system, of custody reports obtained through the Superintendent of Child Welfare by judge's request only, was not thought to be s a t i s f a c t o r y , par-t i c u l a r l y since the information i n them was only seen by the judge, and the s k i l l of the s o c i a l workers making them was - 112 -suspect. I t was i n t e r e s t i n g that the idea of in v e s t i g a t i o n by s o c i a l workers employed by the court was suggested by some of those c r i t i c i z i n g the present reports. There was also a number i n favor of people from several d i s c i p l i n e s being involved i f any r e a l i nvestigation of alternate plans f o r the children should be desired. Two systems of achieving this were suggested; f i r s t that a p s y c h i a t r i s t and s o c i o l o g i s t share membership on a board with the judge, second that a "panel of experts" be available to see those children and parents who were referred to them. Mora l i t y . The Church and Divorce The information received here confirmed the expectations aroused by the review of l i t e r a t u r e , with the exception that we learned that the Roman OSatholic ideas are presently i n the process of major r e v i s i o n . I f t h i s proceeds, t h i s should either have a major e f f e c t on the chance of new l e g i s l a t i o n being accepted i n Canada, or else the r e a l opponents to any change i n the law of 1857 w i l l be forced to expose themselves. CHAPTER VII COMPARATIVE LEGISLATION WITH A VIEW TO REFORM In this chapter we hope to indicate avenues f o r reform by examining some comparative l e g i s l a t i o n i n the divorce f i e l d . F i r s t , i t seems pertinent to view recent changes i n the B r i t i s h system which retains the f a u l t theory. Then a look at Australian l e g i s l a t i o n i s of value. This l e g i s l a t i o n has also retained the concept of a matrimonial offence yet so broadened the grounds for divorce that i n fact i t would seem to acknowledge theories concerning breakdown of marriages. F i n a l l y , l e g i s l a t i o n , l a r g e l y American, based upon breakdown theory should be examined es-p e c i a l l y as i t i s related to the advent of family courts. Br i e f mention w i l l also be made of areas where mutual consent i s adequate reason f o r divorce. This, of course, represents an ultimate response to breakdown theories. Recent English Family Law In 1937 a reform b i l l was passed i n England extending the grounds f o r divorce to not only include adultery but also de-sert i o n f o r three years preceding the p e t i t i o n , c r u e l t y , and unsoundness of mind with continuous care and treatment f o r f i v e years preceding the p e t i t i o n . There were addi t i o n a l grounds for the wife i f her husband was g u i l t y of rape, sodomy or b e s t i a l i t y . - 114 -The grounds apparently were extended as people began to see a d u l t e r y as a symptom o f m a r i t a l breakdown and to recognize that i t could not f a i r l y be claimed as the o n l y cause when a marriage ceased to work. Then i n 1956, the Royal Commission Report on Marriage and Divorce"'" was published. This r e p o r t r e j e c t e d any move toward s e t t i n g up f a m i l y courts and r e t a i n e d the i d e a o f a solemn and adversary system as opposed to an i n f o r m a l and i n -v e s t i g a t o r y system such as was represented by f a m i l y c o u r t s . The Commission f e l t t h a t o n l y a formal adversary system could b r i n g home to the marriage partners the g r a v i t y o f the s i t u a t i o n w h i l e a t the same time p r o t e c t i n g the paramount i n t e r e s t o f s o c i e t y i n the s t a b i l i t y o f marriage as a s o c i a l i n s t i t u t i o n . Nonetheless, w h i l e r e t a i n i n g the p r i n c i p l e of m a r i t a l o f f e n c e the Commission d i d acknowledge t h a t a r a d i c a l change i n the basis on which d i v o r c e was granted might make d e s i r a b l e a d i f f e r -ent k i n d o f a d j u d i c a t o r y process. Since the Royal Commission a number o f changes have taken p l a c e i n E n g l i s h procedure and law surrounding d i v o r c e . The changes were made i n order to e l i m i n a t e some of the s o c i a l problems which we have i n d i c a t e d i n r e l a t i o n to present B r i t i s h Great B r i t a i n , Royal Commission on Marriage and Divorce  Report. Minutes o f Evidence. H.M.S.O., London, 1952-1956. - 115 -Columbian legislation. The Royal Commission recommended adding two additional grounds to the existing ones of adultery, cruelty, desertion, rape, and certain other unnatural offences, and incurable insanity. The extensions were: (i) the a r t i f i c i a l insemination of the wife by a donor without the husband's consent, and ( i i ) the wilful refusal to consummate the marriage Thus, i n England there has been an increased tendency to enlarge the grounds for divorce. At present, the ground of incurable insanity i s an exception to the principle of resting a divorce on an offence. Furthermore, the broadened interpretation of cruelty and constructive desertion tend to lead one to the conclusion that marital breakdown theories are accepted infor-2 mally i f not formally. In the view of L. N. Brown "some of the advantages of having no general grounds for divorce are miti-gated by the breadth and f l e x i b i l i t y with which the courts interpret the grounds of cruelty and desertion." Also, a divorce i n England may be granted even i f both partners to a marriage are at fault. Thus, "safety-valves" have been provided L. N. Brown, "English Family Law Since the Royal Commission," University of Toronto Law Journal, vol. 14, 1961, p. 54. -- 116 -while retaining the basic premise of f a u l t . Procedures have also been changed i n England i n order to mitigate problems of the e x i s t i n g divorce system without r a d i c a l l y a l t e r i n g i t . A 3 new rule whereby the court may order the separate representation i n the divorce s u i t of any children by appointing a guardian ad lit e m to watch over t h e i r interests indicates a growing concern f o r the welfare of children of divorced parents. Also, i n the same s p i r i t i s "the practice e x i s t i n g i n the Divorce D i v i s i o n i n London and now being extended on the advice of the Royal Commission to the divorce courts i n the provinces, whereby the services of a court welfare worker are made available to the 4 court." This person, trained i n s o c i a l work, could then i n -vestigate the plans proposed by the m a r i t a l partners concerning the future of the children under sixteen years of age, especially i n cases where there was disagreement over the question of custody of access. Furthermore, by St a t u t e 3 the court has now been given the power to refuse to make absolute a divorce decree u n t i l i t i s s a t i s f i e d that the best possible arrangements have been made for ^Matrimonial Causes Rules, 1957, r u l e 56. ^Brown, p. 55. P a t r i m o n i a l Proceedings (Children) Act, 1958, supra, s.2. - 117 -the future care of the children. I f the court i s i n any doubt i t can adjourn and c a l l f o r a report from the welfare worker. I t can also place children under the care and supervision of the welfare o f f i c e r i f t h i s i s necessary f o r t h e i r w e l l being. Another area i n which English law surpasses ours i n i t s concern f o r the welfare of children can be found i n a new pro-v i s i o n included i n the Matrimonial Proceedings (Children) Act 6 • . • of 1958. This provision empowers the court to make orders as to the custody, maintenance and upbringing of children even where i t dismisses the p e t i t i o n f o r divorce or other matrimonial re-l i e f . In other words, i t i s recognized that an unsuccessful p e t i t i o n f or divorce i s not going to increase m a r i t a l harmony or cause parents to be s o l i c i t o u s of the welfare of t h e i r o f f s p r i n g . Thus, i t can be seen i n England that there i s a growing preoccupation of divorce courts with the p l i g h t of children and a movement towards more inv e s t i g a t i o n around planning f o r children. There i s also an increased extension of grounds and broad i n t e r p r e t a t i o n of those provided so that the i l l s of too l i m i t e d grounds are mitigated. Furthermore, the Royal Commission paid t r i b u t e to the work done by marriage counsellors despite r e j e c t i n g the creation of an o f f i c i a l c o n c i l i a t i o n service and atrimonial Proceedings (Children) Act, 1958, supra, s.3 - 118 -also recommended that facts learned by marriage counsellors i n the course of c o n c i l i a t i o n should be inadmissible as evidence i n any subsequent matrimonial proceedings between the spouses. Hence, more emphasis was placed upon advice and counselling rather than s t r i c t e r l i t i g a t i o n i n order to preserve marriages. Divorce L e g i s l a t i o n i n A u s t r a l i a The Commonwealth Matrimonial Causes Act of 1959 brought about some important divorce reforms i n A u s t r a l i a which are of i n t e r e s t to Canadians. P r i o r to the Act, the question of domi-c i l e = had been troublesome as i t l e f t i n d ividuals uncertain when they approached the court as to whether the judge would be s a t i s f i e d that the domicile claimed would be the correct domicile. The Act brought about uniformity of j u r i s d i c t i o n and of the grounds f o r matrimonial causes throughout the Australian common-wealth so that there are no longer c o n f l i c t s of j u r i s d i c t i o n and anomalies of law between the d i f f e r e n t parts of the country as we f i n d i n Canada. Grounds f o r divorce i n A u s t r a l i a are quite extensive and r e f l e c t a b e l i e f that marriages do, i n f a c t , break down. Nonetheless, the adversary system i s retained i n the courts. At present, Australians c i t e fourteen grounds f o r divorce as follows: - 119 -1. Adultery 2. W i l f u l desertion for not less than two years 3. W i l f u l and persistent r e f u s a l to consummate the marriage 4. Cruelty 5. Rape, sodomy, b e s t i a l i t y 6. Habitual drunkeness or drug addiction for not less than two years 7. Husband's frequent convictions f o r crime since marriage within f i v e years with a minimum of three years imprisonment and h a b i t u a l l y f a i l i n g to support the wife 8. Respondent imprisoned since marriage f o r not less than three years f o r offence punishable by death or l i f e imprisonment or imprisonment f o r f i v e years or more and s t i l l i n j a i l 9. Respondent since marriage and within one year immediately preceding the p e t i t i o n convicted on indictment of grievous bodily harm or the intent to i n f l i c t such on p e t i t i o n e r or attempt to mur-der p e t i t i o n e r . 10. Respondents habitual and w i l f u l f a i l u r e f o r two years immediately preceding the p e t i t i o n to maintain the p e t i t i o n e r under order or separation agreement 11. Respondent's f a i l u r e to comply with a decree for r e s t i t u t i o n of conjugal rights a f t e r a year o r more 12. Respondent of unsound mind at date of p e t i t i o n and .unlikely to recover and since the marriage and within s i x years immediately preceding the p e t i t i o n has been for periods aggregating at l e a s t f i v e years confined i n a mental i n s t i t u -t i o n and i s s t i l l so confined. - 120 -13. Separation whether by agreement or order f o r a continuous period of not less than f i v e years immediately preceding the p e t i t i o n and no reasonable l i k e l i h o o d of resuming cohabitation ( Q u a l i f i c a t i o n i n Section 37) 14. Absence of spouse i n circumstances and f o r a time s u f f i c i e n t to presume h i s or her death I t should be noted that the 13th ground l i s t e d approaches divorce by mutual consent. The English Royal Commission disapproved of divorce by mutual consent because i t f e l t there were i n s u f f i c i e n t safeguards i f a spouse was unwi l l i n g but slowly worn down by her partner to give consent. A u s t r a l i a apparently feels separation fo r f i v e years i s a s u f f i c i e n t safeguard. Another section of the Act i s also of s p e c i f i c importance as i t provides "a new mechanism at the one moment designed to bring the consequences of divorce for the children to the notice of the parents, and to secure the welfare of the children when divorce ensues." 7 The Act then provides that no divorce s h a l l be granted u n t i l the court i s s a t i s f i e d that adequate provision has been made f o r the children. Clause 14 of the Act represents "an endeavour to afford Australians an opportunity to have a law that w i l l o f f e r some g machinery towards the saving of marriage." Clause 14 states: W. Latey, "Divorce Law i n A u s t r a l i a , " The Law Times, v o l . 228 (September 1959), p. 116. g "Discussion of the Commonwealth Matrimonial Causes B i l l , " A u s t r a l i a Law Journal, v o l . 33 (August 1959), p. 182. - 121 -The court must give consideration from time to time to the p o s s i b i l i t y of a r e c o n c i l i a t i o n of the parties to the marriage i n appropriate cases, and with that end i n view the judge may either adjourne the proceedings for a fortn i g h t , or longer i f the spouses desire i t ; or with the:cdnsent of the spouses interview them i n his chambers, with or without counsel, as he thinks proper; or nominate an approved marriage guidance organization or a person with experience or t r a i n i n g i n marriage c o n c i l i a t i o n , or i n s p e c i a l circumstances some other su i t a b l e person to endeavor, with the con-sent of those p a r t i e s , to ef f e c t a r e c o n c i l i a t i o n . ^ Clause 16 adds a necessary requirement that nothing said i n the course of such c o n c i l i a t i o n proceedings w i l l be admissible i n any court. There has been divided opinion about these clauses. Some f e e l that the o f f i c i a l sanctioning of marriage counselling w i l l enhance the prestige of organizations o f f e r i n g such services and thereby encourage couples to v i s i t them before i n s t i t u t i n g divorce proceedings. Others f e e l that the court a c t u a l l y discourages r e c o n c i l i a t i o n "because the whole court proceeding emphasizes that they are adversaries instead of two persons who are seeking a solution to common intimate problems."*'0 The new Australian Commonwealth Matrimonial Cause Act of 1959 then has i n s t i t u t e d some important reforms by creating a country-wide domicile, by protecting the rights of children i n 9 Commonwealth Matrimonial Causes Act of 1959. Clause 14. 1 0 J . M. Biggs, " S t a b i l i t y of Marriage - A Family Court?" The A u s t r a l i a Law Journal, v o l . 34 ( A p r i l 1961), p. 349. -• 122 -so f a r as adequate provision must be made f o r them before a divorce i s granted, by introducing l e g a l machinery to make r e c o n c i l i a t i o n between mar i t a l partners more possible, and by creating extensive grounds for divorce so that persons who are married i n name only can be freed from matrimonial bonds. At the same time, the adversary system of law s t i l l does not guarantee that a l l the facts relevant to the case w i l l be brought out i n uncontested divorces and does stress the f a c t the marriage partners are i n fact adversaries. Marriage coun-s e l l o r s although supported by the system are not d i r e c t l y connected with the court and may s u f f e r as a consequence of t h i s . Furthermore, divorce cases are not dealt with against the background of a family u n i t where a l l aspects of broken family l i f e come to l i g h t . Hence, i t would seem important that we look beyond the Australian system to other systems which o f f e r family courts as a response to modern l e g i s l a t i o n and modern times. Grounds U n t i l very recently, the most frequently suggested divorce reform has been to a l t e r the grounds for divorce, with the trend being to increase the number of grounds. As a r e s u l t , New York and several Canadian provinces are the only important common-law - 123 -j u r i s d i c t i o n s which s t i l l r e t a i n adultery as the exclusive ground?^ In the United States, however, the overwhelming per-centage of divorces are sought and granted on the grounds of cruelty or desertion, and i t has been found that adultery i s seldom alleged i n States that permit these two other grounds. Regardless of t h i s , the f a c t remains that i t i s generally recog-nized that the grounds alleged i n divorce s u i t s are seldom the r e a l reasons f o r the marriage breaking up; at best, they are 12 merely sumptoms of basic causes. The general world trend, then, i s to allow f o r more general f a u l t grounds, which r e a l l y indicates a b e l i e f — a l t h o u g h 13 unadmitted—that breakdown occurs. I t appears that those who take issue with t h i s trend and advocate a tightening of the divorce laws i n order to curb the divorce rate do not f u l l y understand the s i t u a t i o n , as experience has shown that as long as divorce i s permitted on any ground at a l l , spouses who have 14 agreed to part can obtain a divorce. I t would seem much more desirable to eliminate much of the hypocrisy from modern divorce ^ Q u i n t i n Johnstone, "Divorce: The Place of the Legal System i n Dealing with M a r i t a l Discord Cases," Oregon Law Review, v o l . 31 (June 1952), p. 312. 1 2 I b i d . . p. 301. 13 L.D. Rutman, "Departure from Fault," J.Fam.Law. v o l . 1 ( F a l l 1961)^ p.182. 14H.R. Hahlo, "Can Law Reform Stop the Disintegration of Family L i f e ? " South A f r i c a n Law Journal, v o l . 71 (November 1954). p. 393. " : - 124 -law by bringing the legal grounds closer to the r e a l i t i e s of marital disintegration. One interesting proposal for divorce grounds reform was developed by the National Association of Women Lawyers which drafted a b i l l advocating adoption of a "therapeutic approach" to divorce. In line with this approach i t was proposed that the focus of j u d i c i a l investigation would be on one or more of five c r i t i c a l components of marriage: mutual f i d e l i t y , mutual respect, mutual right of "consortium" mental capacity and sexual capacity.*3 The usual grounds of adultery, cruelty, insanity, desertion etc. would be embraced by these broader areas and given appropriate weight in the sub-sequent j u d i c i a l decision. It has been suggested that a l l previous reform efforts have failed because they were mainly attempts to ". . . graft good branches upon an ai l i n g tree - to patch up a rotten struct-16 ure on a sand foundation with a sound plank here and there." It must be admitted that reform attempts centered around the broadening of grounds alone are not basic or fundamental, and do not go to the root of the problem. Attempts to s t i f l e these and IS Helen I. Clark, Social Legislation. New York, Appleton-Century-Crofts, Inc., 1957, p. 145. 16 Paul W. Alexander, "The Follies of Divorce: A Thera-peutic Approach to the Problem," ABA, vol. 36 (February 1960), p. 105. - 125 -even more pro g r e s s i v e types of reform are o b v i o u s l y based upon f a l l a c i e s and misconceptions, such as the b e l i e f t h a t d i v o r c e destroys marriages and breaks up f a m i l i e s . Yet the l e g a l s e c t i o n o f the N a t i o n a l Conference on Family L i f e h e l d a t Washington, D.C. i n 1948 i t s e l f asserted the f o l l o w i n g c o n c l u s i o n s : t h a t the broken f a m i l y i s not the r e s u l t of d i v o r c e , but d i v o r c e i s the r e s u l t o f the broken f a m i l y ; that spouses are not d i v o r c e d by the c o u r t , but d i v o r c e themselves before coming to court; t h a t d i v o r c e i s not the cause but the r e s u l t o f marriage f a i l u r e . " " 7 F a u l t One o t h e r major aspect o f the d i v o r c e law which seems to be almost an absolute d e t e r r e n t to d e a l i n g e f f e c t i v e l y w i t h the problem of d i v o r c e i s the concept o f f a u l t , which i s i n h e r e n t i n the law. According to Kenneth D. Johnson, former J u v e n i l e Court Judge and c u r r e n t l y Dean o f the New York School o f S o c i a l Work, "The u n i v e r s a l acceptance of the b e l i e f t h a t people can be i n need of help without being a t f a u l t i s a r e l a t i v e l y new b e l i e f . " " * And the law has not done much to i n c o r p o r a t e t h i s b e l i e f i n t o i t s p r a c t i c e s . As long as f a u l t d o c t r i n e s and adversary pro-cedures are maintained, people coming to the courts f o r h e l p w i l l ""^"Family L i f e Conference Suggests New J u d i c i a l Procedures and A t t i t u d e s Toward Marriage and Divorce," CBR. v o l . 27, 1949, p. 238. 18 L P a u l W. Alexander, "Let's Get the Embattled Spouses out o f the Trenches." Law & Contemp. Probs.. v o l . 18 (Winter 1953), p. 103. - 126 -be forced into positions of h o s t i l i t y , antagonism, and f i g h t i n g , thereby making divorce almost i n e v i t a b l e ; and basing divorce on proof of f a u l t or g u i l t makes the adversary concept inescapable. Attempts at preventive j u s t i c e under these circumstances are impossible. "And so i t appears that the law by making g u i l t the index of marriage f a i l u r e and by placing so much emphasis upon the grounds or forms of g u i l t has contributed to i t s own f a i l u r e i n i t s avowed purpose to preserve marriage and the family. I t i s not preventive; i t i s punitive. I t does not conserve; i t 19 disserves." I m p l i c i t i n eliminating the f a u l t concept i n divorce pro-ceedings and i t s adversary nature would be l e g a l recognition of the f a c t that termination of the mar i t a l status by a divorce decree i s not an award to a successful l i t i g a n t ; rather the dec-ree would terminate the mar i t a l status for both parties equally as a decree of a court of equity would terminate a partnership. Yet because we have l i v e d f o r so many years with f a l l a c i e s and misconceptions about the relationship between divorce and the law, i t has been asserted that we cannot be too o p t i m i s t i c about a complete change i n the law. One thing which can be done, however, i s to adopt a statute that would permit divorce courts Alexander, "The F o l l i e s of Divorce," p. 107 - 127 -to apply the s k i l l s of other professionals i n an attempt to resolve m a r i t a l problems; this would not disrupt the e x i s t i n g pattern of law and would be a good proving ground upon which to test the effectiveness of a new approach, at the same time improving the receptiveness of the public and the l e g i s l a t u r e 20 toward changing our divorce laws. This i s a rather conser-vati v e view, however, as compared with that of Paul W. Alexander, who asserts that we must reconstruct the entire philosophy of the law so that i t conserves family l i f e , and t h i s would mean wiping the s l a t e clean and s t a r t i n g from scratch. Our archaic l e g a l philosophy as evidenced by ideas on g u i l t and punishment should be abrogated and i n t h e i r place substituted the modern 21 philosophy of diagnosis and therapy. Family Court The philosophy stated above by Alexander i s the very basis of the suggested divorce reform which i s currently receiving the most attention and which seems to be the most promising—that of the family court. Alexander, who i s Judge of the Court of Common Pleas, Department of Domestic Relations, Lucas County (Toledo) Ohio, i s the prime advocate of this reform. Enthusiasm 20 Noah Weinstein, "Proposed Changes i n the Law of Divorce," Missouri Law Review, v o l . 27 (June 1962), pp. 328-329. 21 "Family L i f e Conference. , .," p. 239. - 128 -fo r the movement has been attributed to d i s s a t i s f a c t i o n with other types of reform, Alexander's e f f e c t i v e advocacy, the popularizing of psychiatry and specialized counselling, and the fact that family courts are acceptable to both the " l i b e r a l s " 22 and "conservatives" i n the f i e l d of divorce. The term "family court" i s loosely applied to various types of courts, and i s sometimes synonymous with domestic relati o n s courts. According to Alexander, the two primary func-tions of a l l family courts are: (1) j u d i c i a l , and (2) minister-23 i a l or therapeutic. There are a v a r i e t y of courts c a l l e d family courts, but with d i f f e r i n g procedures and services, i n twelve States of the United States, and i n four other States there are courts with provisions for i n v e s t i g a t i o n and procedures 24 25 approaching those of the family courts. * The c h a r a c t e r i s t i c s of a family court are as follows: i t i s an inter-professional i n s t i t u t i o n which has integrated j u r i s d i c t i o n over a l l family matters; i t maintains a s t a f f of s p e c i a l i s t s , such as investigators or caseworkers, which make fac t u a l investigations for the court, and also employs marriage 22 Johnstone, p. 317. 23 Paul W. Alexander, "Family Cases are Diffe r e n t - Why not Family Courts?" Kansas Law Review, v o l . 3, no. 1 (October 1954), p. 28. 2"*Quintin Johnstone, "Family Courts," University of Kansas C i t y Law Review, v o l . 22. no. I ( F a l l 1953); pp. 18-22. "'Charles L. Chute, "Divorce and the Fan & Contemp.Probs.. v o l . 18 (Winter 1953), p. 54. - 129 -and family counselors; and i t exists f o r the purpose of pro-v i d i n g help for families i n trouble, employing extensive use 26 27 of community resources to that end. ' The family court movement can be considered as part of two broader trends i n law: (1) greater absorption into sub-stantive and procedural law of the knowledge and methods of the behavioral sciences; and (2) increased employment of s o c i a l workers by the court and by government agencies i n the admini-28 s t r a t i o n of the law. More s p e c i f i c a l l y , i t seems to r e f l e c t the growing r e a l i z a t i o n that a multitude of psychological and s o c i a l factors contribute to divorce, and therefore a s p e c i a l court equipped with s p e c i a l s t a f f i s needed i n order to under-stand and adjust these factors with a view to preventing divorce. The idea of the family court i s an outgrowth of j u v e n i l e courts, whose duty i t i s to safeguard, cure, r e h a b i l i t a t e , correct, and remedy causal s i t u a t i o n s ; and to t h i s end they employ informal procedures, work closely with community resources to provide p s y c h i a t r i c , educational, medical and f i n a n c i a l help, avoid a penal approach, and employ a s t a f f of s p e c i a l i s t s . The no n - j u d i c i a l s t a f f which Alexander suggests would be necessary for a t r u l y e f f i c i e n t family court would be a p s y c h i a t r i s t , 2 6 Johnstone, "Family Courts," p. 21. 27 H. H. Foster, "Spadework f o r a Model Divorce Code," J . Fam. Law, v o l . 1 (Spring 1961), p. 12. 28 ~ Johnstone, p. 21. - 130 -c l i n i c a l psychologist, psychometrist, p s y c h i a t r i c caseworker, s o c i a l caseworker, marriage counselor, group worker, minister, etc., and a l l of these would regularly invoke the services of the l e g a l profession, church, school, public and private 29 agencies, and a l l available community resources. Some i l l u s t r a t i o n should be made here of various aspects of family court procedures and services which have been imple-mented by several United States courts. The family court movement i s considered to be most developed i n Ohio, as there are eight such courts i n that State. Once the parties have f i l e d f o r a divorce, there i s a six-weeks waiting period before the case i s heard, and they are i n v i t e d during t h i s time to apply for m a r i t a l counselling, which i s given free of charge by family counselors with a view to preventing the divorce. Special investigators or probation o f f i c e r s are used i n the s o c i a l i n v e s t i g a t i o n of cases coming before the court, and re-ports are made on the family and individuals i n i t to the court to a s s i s t i n a r r i v i n g at a decision. Under a 1951 law, a l l cases i n which there are children under 14 years of age must be investigated. The s o c i a l i n v e s t i g a t i o n reports are considered c a r e f u l l y , and the decisions reached are not hurried or casual, Johnstone, "Divorce: The Place of the Legal System. . .," pp. 318-319. -- 131 -but based upon the c r i t e r i o n of what i s deemed best for the welfare of the f a m i l y . ^ A v a r i a t i o n on this procedure i s I l l i n o i s ' "60-day cooling o f f period". On the b e l i e f that i t i s useless to attempt a r e c o n c i l i a t i o n during the heat of divorce proceedings, a spouse f i l e s a notice of intention to f i l e f o r a divorce (which contains no complaints or charges, thereby eliminating the ad-versary procedure) and then must wait 60 days before the summons for the case i s lodged. When the summons i s lodged, i f the judge thinks that a r e c o n c i l i a t i o n attempt may be worthwhile he c a l l s the parties before him f o r an informal discussion, with the lawyers present, before the action for divorce i s a c t u a l l y f i l e d . I f there i s i n d i c a t i o n that the couple may benefit from the services of a marriage counsellor or some other expert, the 31 judge then makes such a r e f e r r a l . In the State of Wisconsin, the 1960 Wisconsin Family Code rejects the specialized s t a f f approach common to a model family court, but provides other features which are geared toward re-c o n c i l i a t i o n . This code also provides f o r a 60-day waiting period before a divorce case may be heard i n order to attempt Chute, p. 53. 3 1Hahlo, p. 394. - 132 -a r e c o n c i l i a t i o n , and even i f no r e c o n c i l i a t i o n i s effected, there must be a one-year cooling-off period between the time the decree i s granted and the date upon which i t becomes f i n a l . The code contains requirements to compel the appearance of the defendant spouse for purposes of attempting r e c o n c i l i a t i o n . No judgement i n any action i s made u n t i l a family court commissioner (who i n this case i s a lawyer) has " . . . made a f a i r and im-p a r t i a l i n v e s t i g a t i o n of the case and f u l l y advised the court as to the merits of the case and the rights and interests of the parties and the public, and the ef f o r t s made toward recon-c i l i a t i o n of the parties or the reason such r e c o n c i l i a t i o n 32 attempt has not been made." The proposed Pennsylvania Divorce Code does not establi s h a true family court as there i s no integrated j u r i s d i c t i o n over a l l family matters, but i t leaves room for family court-type s t a f f as a l o c a l option and t r i e s to promote the s o c i a l p h i l o -sophy of a family court. Probation o f f i c e r s are employed whose function i t i s to provide consultation and r e f e r r a l s i f necessary, and perform marriage counselling i n an attempt to eff e c t r e c o n c i l i a t i o n s . The probation o f f i c e r makes a report of his investigations into the family, and copies of th i s report Foster, pp. 13-15. - 133 -are made available to a l l interested parties f i v e days before the hearing of the case. I f an objection i s made to any aspect of the report, the l a t t e r may be received i n evidence only i f the probation o f f i c e r who wrote i t i s made available f o r cross-examination by the objecting party. This i n v e s t i g a t i o n and report i s required by the court i f there are children of the marriage under 14 years of age, and the court may further require a conference between a l l involved parties when there are children. Before a divorce i s granted, the court must f i n d that " . . . attempts at r e c o n c i l i a t i o n would be impracticable or f u t i l e and not to the best interests of the family." I f there are no children involved the court can stay the proceedings up to s i x t y days, and up to s i x months i f there are children, i f i t finds attempts at r e c o n c i l i a t i o n are practicable and to the best i n -33 terests of the family. The procedures of the Pennsylvania code l i m i t the scope of t r a d i t i o n a l defenses, i n that discussing property settlements, children, and coming to agreement between the parties are not considered to be c o l l u s i o n . And here again, the establishment of a f a u l t s i t u a t i o n which would make attempts at r e c o n c i l i a t i o n d i f f i c u l t i s avoided by providing that the notice of inte n t i o n to f i l e f o r a divorce does not contain any Foster, pp. 13-17. - 134 -34 complaints or grounds. Both the Pennsylvania and Wisconsin codes protect p r i v i l e g e d communication i n marriage counselling, but shy away from compulsory counseling while at the same time providing leverage to induce or persuade the parties involved 35 to submit to such counseling. A more detailed look should be taken here at the philoso-phy and procedures of one of the most extensive family court systems- that of Los Angeles County. A l l the domestic relat i o n s functions of the Los Angeles Family Court come under the super-visory j u r i s d i c t i o n o f j a presiding judge, and i n conjunction with and as an i n t e g r a l part of the j u d i c i a l process, c o n c i l i -ation services are performed by trained and experienced s o c i a l workers, t h e i r function, however, being l i m i t e d to short-term 36 counseling. The court operates on the b e l i e f that i t has an o b l i g a t i o n to provide expert l i m i t e d s o c i a l service on a non-compulsory basis i n both in v e s t i g a t i o n and counseling, to enable i t to determine what i s best for the health and welfare of the children involved and to save marriages otherwise doomed. The court endeavours to eliminate a l l adversary aspects as f a r as possible i n domestic relations cases. S o c i a l workers are attaches of the court, are paid by the court, and work d i r e c t l y 34 Foster, pp. 13-17. 35 -Ib i d . , p. 16. 36 Roger Alton P f a f f , "The Role of the S o c i a l Worker i n the J u d i c i a l Process," ABA, v o l . 50 (June 1964), p. 565. - 135 -iinder i t s supervision. They serve f i r s t l y as investigators, and t h e i r reports into cases are f i l e d as secret exhibits to be opened only upon order of the court, thereby maintaining c o n f i d e n t i a l i t y . At one time a recommendation was made by the s o c i a l worker as part of his report, but t h i s was eliminated i n 1962 as i t was found they only i n v i t e d c r i t i c i s m and antagonism from attorneys. The purpose of the reports i s to furnish the court with information to a s s i s t the judge i n making a decision for the best i n t e r e s t s of the children and a l l parties involved. The Los Angeles County C o n c i l i a t i o n Court has extended the function of s o c i a l workers to include counseling. This court " . . . represents a unique and pioneering i n t e r d i s c i -p l i n a r y approach on the part of lav? and s o c i a l work to provide 38 an enabling service to families with m a r i t a l discord." According to the law, " p r i o r to the f i l i n g of any action f o r divorce, annulment, or separate maintenance, ei t h e r spouse, or both, may f i l e i n the c o n c i l i a t i o n court a p e t i t i o n invoking the j u r i s d i c t i o n of the court for the purpose of preserving the 39 marriage by effecting a r e c o n c i l i a t i o n between the p a r t i e s . . . " 3 7 P f a f f , pp. 565-566, 3 8 I b i d . , p. 566 39 Chute, p. 58. - 136 -Access to the court i s simple - a couple may l i t e r a l l y walk i n o f f the street. A f t e r one spouse f i l e s the above-mentioned p e t i t i o n , neither may f i l e an action f o r divorce f o r at least t h i r t y days, and during t h i s time the attempts at r e c o n c i l i a -t i o n are made. Counseling i s li m i t e d to a short«term basis, as i t was found that extended counseling by the court results i n c r i t i c i s m from other public and private family counseling agencies. As a r e s u l t , the court works i n close cooperation with other community agencies i n order to r e f e r cases which i n -dicate a need for long-term counseling. The court also stresses the non-compulsory aspect of t h e i r counseling services, as this frees the s o c i a l workers to devote t h e i r time to those cases i n which the parties want and can use the help and frees them from the time-consuming task of processing a l l cases regardless of 4 whether or not r e c o n c i l i a t i o n attempts are desired or fe a s i b l e . The procedures of the court are informal, private, and con f i d e n t i a l and there i s no fee for any of the services. The f i r s t step i s to f i l e a c o n c i l i a t i o n p e t i t i o n , as mentioned above. A statement i s then prepared which sets forch general information concerning the p a r t i e s , t h e i r backgrounds, and contains a che c k - l i s t of mar i t a l d i f f i c u l t i e s which aids the counsellor i n determining what the s p e c i f i c problems i n a case P f a f f , p. 567. - 137 -are. A notice i s then sent to inform the respondent of the time and place of the hearing with the counsellor, and the court can issue a c i t a t i o n requiring the attendance of the respondent i f necessary. In preparation for the hearing, the counsellor talks to the attorneys involved and informs the parties themselves of the purpose of c o n c i l i a t i o n court, stressing that they are not i n any way forced to reconcile. The counsellor then confers with each party separately, and a f t e r that sees them together. I f e i t h e r party remains opposed to r e c o n c i l i a t i o n , the proceed-ings are terminated and the attorneys so n o t i f i e d . Court orders can be made i n respect to the conduct of the parties as i t may deem necessary to preserve the marriage or to implement the r e c o n c i l i a t i o n of the spouses. The duration of these orders i s l i m i t e d to t h i r t y days from the hearing of the p e t i t i o n , unless the parties mutually consent to a longer duration. I f r e c o n c i l i a t i o n i s decided upon, a r e c o n c i l i a t i o n agreement i s drawn up which sets forth the terms and conditions upon which the couple agree to reconcile. The parties sign this agreement, and can be found i n contempt of court i f they v i o l a t e t h e i r promises, thereby facing the p o s s i b i l i t y of a j a i l sentence. A court order requiring compliance with the above agreement i s attached. ajad_^je,ryM-fon.-th.e .gar^ie^...,. I t i s f e l t that t h i s agree-ment lends dignity to the promises made and also serves as a working document to be referred to by the parties i n times of - 138 -trouble. Third parties are named and brought into the pro-ceedings as w e l l , and may also sign an agreement. I f a f t e r t h i r t y days the parties f e e l they cannot remain reconciled, they may c a l l f o r a new conference, and i f t h e i r views remain unchanged the agreement and court order w i l l be terminated. A l l aspects of the c o n c i l i a t i o n procedures are considered as privi l e g e d communication and are not admissible as evidence. The r e c o n c i l i a t i o n agreement i t s e l f contains a paragraph en-t i t l e d " T r i a l R econciliation" which makes i t c l e a r that enter-ing the agreement and resuming cohabitation w i l l not be con-strued as condonation or r e c o n c i l i a t i o n i t s e l f ; the parties thereby r e t a i n grounds i f they decide to seek a divorce l a t e r , and are given the opportunity to decide f i n a l l y at the end of the t r i a l period whether or not they wish to enter a "true" 41 r e c o n c i l i a t i o n . Regarding the results of the c o n c i l i a t i o n court's e f f o r t s , 4,095 applications for counseling were made i n 1962. Using the concepts and pr i n c i p l e s of s o c i a l work, eleven trained marriage counsellors reconciled s i x t y - f o u r out of every one hundred couples who participated i n c o n c i l i a t i o n procedures; and three 42 out of four of these couples were s t i l l together one year l a t e r . ^*Xouis H. Burke, "The Role of C o n c i l i a t i o n i n Divorce Cases," J;Fam. Law, v o l . 1 ( F a l l 1961), pp. 209-226. 4 2 P f a f f , p. 566. - 139 -The assertion has been made that t h i s court i s demonstrating that the law can provide a healing service to unhappy fami-l i e s , and i s exploding the myth that couples on the verge of divorce cannot be helped. I t i s further demonstrating that communication and cooperation between the le g a l profession and s o c i a l work are r e s u l t i n g i n maximum benefit to estranged 43 couples and therefore to the community at large. This asser-t i o n seems to be supported by a statement made by one of the world's great lawyers, the l a t e Roscoe Pound: "In e f f e c t , what there i s i n the way of preventive j u s t i c e . , . i s achieved not by l e g a l , but by s o c i a l agencies. I t i s done, for the most part, not by the agencies of the law, but by the s o c i a l 44 workers." But the family court as i t has been described here could i n fact be considered a " s o c i a l agency". One very p o s i t i v e step made i n the United States toward an enlightened divorce law was the appointment i n 1948 by the American Bar Association of a Special Committee on Divorce and Marriage Laws and Family Courts. This committee i n 1950 set Alexander, "Let's Get the Embattled Spouses Out. , .," p. 103. . --44 Paul W. Alexander, "Not the Least Item: A Section of Family Law," ABA, v o l . 42 (July 1956) 5 p. 733. • -- 140 -up an Inter-Professional Commission composed of professional people from the f i e l d s of psychiatry, medicine, sociology, law, and the ministry, to bring about an improvement i n the divorce law; and the American Bar Association's Section on Family Law was the r e s u l t of the work of this Commission. CHAPTER VIII CONCLUSION The i n i t i a l exploration carried out i n t h i s study i n d i -cates that the adversary nature of B r i t i s h Columbia divorce l e g i s l a t i o n with i t s r e s t r i c t e d grounds i s not conducive to problem-solving and tends to create new problems for those already suffering from damaged interpersonal r e l a t i o n s h i p s . Some of these secondary problems have been documented i n this study and are b r i e f l y outlined as follows: one, the true facts i n a case are u n l i k e l y to emerge during an adversary proceeding es p e c i a l l y i n view of the fact that many cases are undefended. Also, the adversary system prevents the parties concerned from taking a mature look at what caused the ma r i t a l breakdown. The law penalizes those who attempt r e c o n c i l i a t i o n due to factors involved i n condonation. Collusion bars also discourage d i s -cussion of matters of mutual concern or serve to keep such discussion secret. In some cases even though a l l personal and s o c i a l functions of marriage have ceased to e x i s t , the l e g a l t i e must be maintained because neither has committed adultery or i s w i l l i n g to engage i n fraud. In other cases, those who have grounds f o r divorce are unable to obtain same because of l e g a l - 142 -costs and d i f f i c u l t i e s i n establishing domicile or t r a v e l l i n g to a court that has j u r i s d i c t i o n . Scant i n v e s t i g a t i o n of proposed plans for children of the marriage i s carried out unless the custody i s contested. In general, B r i t i s h Columbia divorce l e g i s l a t i o n does not provide for any investigation concerning what r e a l l y causes a marriage to f a i l . I t provides no r e l i e f for many whose marriages have broken down beyond repair and no impetus towards problem-solving f o r others who might become reconciled or at least divorced with a minimum of secondary damage and with a recognition of r e s p o n s i b i l i t i e s involving children. Comparative l e g i s l a t i o n then has been examined with a view to proposals for reform. In such an examination i t becomes apparent that merely extending the grounds f o r divorce or adding l e g i s l a t i o n aimed at c o n c i l i a t i o n i s less e f f e c t i v e when incor-porated i n systems where f a u l t theory i s retained than i n systems which do not proceed on an adversary basis. Hence, progressive l e g i s l a t i o n combined with specialized Family or C o n c i l i a t i o n Courts would seem most f r u i t f u l f o r reducing s o c i a l problems associated with divorce and f o r reconciling many who f e e l t h e i r marriages cannot be salvaged. In B r i t i s h Columbia, the formation of C o n c i l i a t i o n Courts has a v a r i e t y of implications. F i r s t , the court would need to be given j u r i s -- 143 -d i c t i o n i n matters pertaining to divorce as this i s presently under the j u r i s d i c t i o n of the Supreme Court. L e g i s l a t i o n would need to be introduced to provide for c o n c i l i a t i o n pro-cedures and services. These could perhaps be modeled a f t e r the Los Angeles experience. Such l e g i s l a t i o n implies the use of s p e c i a l l y trained judges and lawyers who are q u a l i f i e d to handle family problems. I t also would involve the use of trained s t a f f such as s o c i a l workers and p s y c h i a t r i s t s i f ser-vices were to be f u l l y e f f e c t i v e . An a l t e r n a t i v e , and one which seems of secondary impor-tance, i s to maintain j u r i s d i c t i o n over divorce i n the Supreme Court but provide f o r a d i v i s i o n of that Court to operate on the basis of a Family Court. This a l t e r n a t i v e has the disad-vantage of combining both adversary and breakdown theories within one j u r i s d i c t i o n and as such i t i s u n l i k e l y to produce the r a d i c a l changes i n dealing with divorce that a true Family or C o n c i l i a t i o n Court might provide. Paramount to the proposal that divorce j u r i s d i c t i o n be transferred to a newly-created Family or C o n c i l i a t i o n Court i s the b e l i e f that the law should be such as to strengthen family l i f e and enable problem-solving. C o n c i l i a t i o n services esta-blished without hinderance from a law stressing f a u l t and an adversary system seem most l i k e l y to bring out the true reasons for m a r i t a l breakdown and lead to a mature consideration of - 144 -these reasons. Without such a process many marriages might needlessly dissolve. Hence, c o n c i l i a t i o n services should be available p r i o r to divorce action. Should they f a i l to re-unite the marital partners, they s t i l l provide an atmosphere whereby important decisions governing custody of the children, finances, etc. can be made. I t would seem c a r e f u l l y considered decisions would more l i k e l y r e s u l t i n such an atmosphere than the h o s t i l e atmosphere engendered by an adversary system. Grounds f o r divorce i n B r i t i s h Columbia need also to be expan-ded i n harmony with breakdown theory so that those who fi n d they cannot become reconciled may be enabled to use divorce as a means of problem-solving. Grounds that include i n c o m p a t i b i l i t y and desertion are i n keeping with breakdown theory. Such grounds would allow divorce to be granted on r e a l i s t i c grounds, a factor which i s not the case when the singular ground of adultery i s present. Other proposals for constructive changes i n B r i t i s h Columbia divorce l e g i s l a t i o n include the proposal that a mar-r i e d woman be able to acquire a domicile separate from that of her husband and that a Canada-wide domicile be established so that the courts are made more re a d i l y a v a i l a b l e to those re-quiring t h e i r services. Furthermore, i t would be necessary f o r a Family or Co n c i l i a t i o n Court established i n B r i t i s h Columbia to provide - 145 -c o n c i l i a t i o n services free of charge i f t h e i r frequent use was to be assured. I f not, i t would seem important that the present Legal Aid services be expanded to cover cases involving divorce. In conclusion, the authors wish to submit that a Family or C o n c i l i a t i o n Court with sjurisdiction over divorce and the custody of children, operating within a framework recognizing the breakdown of marriages and eliminating the f a u l t or ad-versary system would do more to preserve marriages and act i n the best interests of society than the present r e s t r i c t i v e B r i t i s h Columbia l e g i s l a t i o n . Surely i n t h i s province we must reaffirm through careful research followed by s o c i a l action and s o c i a l change, the words of H.H. Foster: I t i s not unduly o p t i m i s t i c to believe that i t i s possible to adapt a law to the needs of our times and to fashion i t into a force for p o s i t i v e good as d i s -tinguished from negative c o n t r o l , so that i t helps families i n trouble rather than avenges mans' transgressions. Only i f we adopt a problem-solving approach w i l l we be able to make family law responsive to s o c i a l needs and an e f f e c t i v e instrument of s o c i a l j u s t i c e . 1 n. H. Foster, "Spadework f o r a Model Divorce Code," Journal of Family Law, v o l . 1 (Spring 1961), p. 37. A P P E N D I C E S - 147 -APPENDIX I B. C« Rules Applicable to Divorce and Matrimonial Causes 818 APPENDIX I. .Mil British. Columbia Rules Applicable to Divorce and T;' — ;*; 'f Matrimonial Causes* g ' ' ' : ORDER LX . ..'v...- r:: ,.-;L'C • DIVORCE AND MATRIMONIAL CAUSES Definition ;/- . , 1. 'In this Order "matrimonial cause" means a cause or pro-ceeding for any relief claimed under the provisions of the Act intituled "An Act to amend the Law relating to Divorce and Matrimonial Causes in England," being chapter 97 of the "Revised Statutes of British Columbia, 1948," and amendments thereto, referred to in this Order as the "principal Act" Form of action . ... ."h^ hsu" ,u:.-r„'.!r:v:."tL'.f.: ."..a;; 2. All matrimonial causes shall be by action commenced by writ of summons and shall be styled:— .."•„'* In the Supreme Court of British Columbia Between and Plaintiff Defendant. These rules purport to abrogate certain substantive rights concern-ing alimony and maintenance which formerly existed under the Su-preme Court Rules, 1943, as ratified by the Court Rules of Practice Act, RSBC, 1960, ch. 83. For an extremely valuable comment on these changes see Herbert, "The Supreme Court Rules 1961—Their Effect on the Subject of Maintenance" (1960) The Advocate, vol. 18, at 204-.207, who states: > ,><*•>-: "Though it is clear that section 4 subsection 4 of the Court Rules . of. Practice Act is enacted subject to subsection 6—giving the - Lieutenant-Governor in Council power to alter, add to, vary, amend or repeal the orders and rules, one wonders whether the Executive '-•Council speaking as of November 29, 1960—repealing the 1943 Rules •'•!'and substituting the 1961 Rules speaks louder than the legislature .''•'through the Court Rules of Practice Act expressly declaring the ' ^Divorce;Rules, 1943, * * * to be .. - - •;,.,./ "" " '' .it:,*>'-: * '•' valid and binding according to their tenor, notwith-standing that the said rules and order contain substantive law "arid1 even more one wonders whether the'legislature consciously '•'.intended that, in delegating to the Council, the power to make • * rules and orders relating to practice and procedure, it should have 2power to take away substantive rights expressly affirmed by the dJlegislature *.*•*." See also Dovmes v. McRae (1961-62) 36 WWR 323, 1961 Can Abr • 564; Ambrose v. Ambrose (otherwise Hamish) (1961) 29 DLR (2d) -766, 1961 Can Abr 578; Tipping v. Hornby (falsely called Tipping) (1961-62) 36 WWR 278, 1961 Can Abr 577, wherein it was held that Order in Council No. 2573 which purported to repeal the Divorce Rules :1943 along with the Supreme Court Rules for 1943 and substitute therefor the Supreme Court Rules for 1961, is not effective to repeal substantive law as contained in Divorce Rule 65 of the Divorce Rules lor 1943. .... .-a.-::.-. /.>-_»-.<:'.;'.i:-sf;5-->!_ -J:., WV.:-.:T «••-. -BRITISH COLUMBIA RULES 819 and, except as in this Order otherwise provided, the practice and procedure relating to actions commenced in the Court shall apply mutatis mutandis to matrimonial causes. Joinder of causes of action, restriction of 3. (1) No cause of action, save for alimony, maintenance, the care, custody, or control of children, settlement of property under section 34 of the principal Act, or damages for adultery, shall be joined with a claim in a matrimonial cause without leave of a Judge, to be obtained ex parte before the service of the writ, or thereafter upon notice to all parties who have been served. (2) The order granting such leave shall be served with the writ or amended writ, as the case may be. : Application of RR. 5 to 9 . , . "4. (1) This Rule and Rules 5 to 9 inclusive, apply only to actions for dissolution of marriage or for judicial separation. Adulterers to be defendants .: . : • - •>_-. .'.(2) Unless otherwise ordered, every person with whom adultery is alleged to have been committed, whether such adult-ery is alleged as the cause of action or by way of revival of a prior matrimonial offence which has been condoned, shall be made a defendant in the action if living at the date of the issue of the writ Adulterer unknown ' " * ' 5. (1) If the name of the person with whom adultery is alleged to have been committed is unknown to the plaintiff at the time of the issue of the writ, a Judge, on being satisfied that all reasonable efforts have been made to ascertain the name, may grant leaVe to the plaintiff to issue the writ with-out adding such person as a defendant. : . ,-. • T ' (2) After a writ has been issued, a Judge may grant leave to amend the same by alleging adultery with a person whose name is unknown to the plaintiff. . k \ (3) The order granting leave may require that the plain-tiff continue to make all reasonable efforts to ascertain the name of the person with whom adultery is alleged; and that as soon as the name of such person is ascertained, he be added as a defendant and all necessary amendments be made. (4) If the order is made after tha writ has been served, it may require the amended writ, amended statement of claim, and affidavit verifying the same to be re-served, and in such. 820 APPENDIX L case it shall also prescribe the times within which the appear-ance and the statement of defence to the amended writ and amended statement of claim shall be delivered. (5) Unless the Judge otherwise orders, the order granting leave shall be served with the writ or with the amended writ, as the case may be. Death of adulterer before action 6. Where a person with whom adultery is alleged to have been committed has died before the issue of the writ, it shall hot be necessary to make the legal representative of such per-son a defendant in the action-Death of adulterer pending action 7. (1) Where a defendant with whom adultery is alleged to have been committed dies while the action is pending, the action may be continued without adding the legal representative of such defendant as a party, unless the plaintiff intends to claim in the action for any relief against the estate. •.:; (2) Where no such claim is made against the estate, the plaintiff shall file an affidavit verifying the death of the defen-dant, and in all proceedings in the action thereafter the words "now deceased" shall be added immediately after the name of the deceased defendant in the style of cause, and the action may be continued without notice to the legal representative of such defendant ... Application may be made to represent deceased adulterer 8. Where a legal representative of a deceased person with whom adultery is alleged to have been committed has not been made a defendant, any person desiring to represent such de-ceased person may apply to a Judge for leave to be added as a defendant. - _ /,. .* .... Where action based on criminal offence I:::: '•^ nr .-i'tiTH 9. If the action is based on a matrimonial offence which constitutes a criminal offence for which the defendant husband has been convicted in a Court of competent''jurisdiction in Can-ada, the other person who was involved in such offence shall not be made a defendant in the action unless a Judge otherwise orders. - • -•' - -.• Statement of claim to be filed and served with writ • .. • 10. The statement of claim shall be filed at the time the writ is issued and shall be served therewith. . , Contents of • - : •• r "7 >''" . 11. (1) The statement of claim shall include the following particulars:— - - •..;vi-s>SH ?tv^o.,.„-BRITISH COLUMBIA RULES 821 (a) A short statement of the relief claimed: (&) The place and date of the marriage: (c) The name and status of the wife before the marriage: (d) The address of the wife at the date of the issue of the writ: (e) The birthplace of the husband: (/) The status of the husband before marriage: {g) The domicile of the husband at the time of the mar-riage: (Ti) The occupation, address, and domicile of the husband at the date of the issue of the writ: (i) Whether any party to the action is an infant or under : any other disability, and, if so, the age of such party, or the nature of such other disability: (j) If the wife is the plaintiff and claims to be entitled to maintain an action by reason of the "Divorce Jurisdic-tion Act," all the facts upon which such claim is founded: -• (fc) The principal places of residence where the spouses have cohabited: .;, (J) Whether there has been issue of the marriage, and, if so, the names and dates of both of all living issue, and, ; . in the case of any such issue under 21 years of age, full particulars of its past, present and proposed homes, maintenance, and education: (m) A statement of all previous proceedings instituted with 7 : reference to the marriage or to any issue thereof, in-eluding^applications to the Parliament of Canada, ac-.tions for alimony, or applications under any statute, ; > i '•-i'aujj t h e result of such proceedings: .. (n) The matrimonial offences alleged or other grounds upon " ^ j{'vwhich' relief is sought, the same to be set out fully in 'separate paragraphs with the name and address of every person with whom a matrimonial offence is al-leged to have been committed: . : • x; ,7 (o) If such be the case, that any person with whom a matri-"'. monial offence is alleged to have been committed has died before the issue of the writ: (p) -Where the writ includes a claim for the custody of the : .- children, full particulars of the facts upon which such - . claim is founded: : -unr-iloXj 822 APPENDIX I. (q) The existence of any separation agreement or any finan-cial arrangement between the spouses: ".. (r) Where the writ includes a claim for alimony or main-tenance, or for maintenance of the children of the mar-riage, a statement of the income and property of the respective spouses in so far as they are within the knowledge or belief of the plaintiff. C2) The statement of claim shall conclude with a statement giving full particulars of the relief claimed, including:— (a) Any claim for dissolution or annulment of marriage, . judicial separation, restitution of conjugal rights, or :>" jactitation of marriage: ^ - . (b) Any claim for custody of children: •,*:•(<?):; Any claim for interim alimony or maintenance: (d) Any claim for permanent alimony or maintenance: (e) ..Any claim for damages or costs: (/) In appropriate cases, a request that the Court will exer-cise its discretion in favour of the plaintiff, notwith-standing the commission of a matrimonial offence; and (gr) Any other claim. Supporting: affidavit 1". '.,12. (1) Every statement of claim shall be supported by an affidavit of the plaintiff verifying the facts alleged of which he or she has personal knowledge and deposing as to belief in the truth of the other facts alleged. (2) In actions for dissolution or nullity of marriage, judi-cial separation, or jactitation of marriage, the plaintiff shall further state in the affidavit that no collusion or connivance 6xists between the plaintiff and the other party to the marriage or alleged marriage. . (3) The affidavit shall be contained in the same document as the statement of claim, and shall be at the foot or end there-Where discretion asked ." .:::<"'. 'i-.y.l zyzd O J bo^sl ;.13._(1) Where a party who has been guilty of a matrimo-riial offence intends to ask at the hearing that the discretion of the Court be exercised in his favour, a statement signed by such party setting forth all facts relating to such offence and the grounds upon which the exercise of the discretion is asked shall be placed in a sealed envelope and filed with the statement of claim or counterclaim, as the case may be. BRITISH COLUMBIA RULES 823 (2) Such statement shall be open to the inspection of the Attorney-General, but, except by the direction of a Judge, shall not be open to inspection by any other person. (3) The Judge presiding at the trial may peruse the state-ment and may order it to be resealed or to be communicated to the opposite party, or to be otherwise dealt with as he sees fit Service of writ and other papers therewith ->"'!'> ••" : 14. Cl) Unless otherwise ordered in special circumstances, the writ and all papers required to be served therewith shall be served on the defendants personally. . •• C2) The provisions of Order LX, Rule 1,* shall not apply to such service. ': ' '•- ; : (3) Such service shall be made by some person other than the plaintiff or his solicitor. • '(4) :The affidavit of service or certificate under Order LX, Rule 8,t shall state fully the means of knowledge of the depon-ent as to the identity of the person served, and shall be filed in the Registry. \_,. ... '.. . • ;; (5) No judgment shall be pronounced unless it is.clearly shown at the trial that the person served was the defendant. Service ex juris .'. '' .'7 ..C ..J- . ; -.. ; .±..y 15. In a matrimonial cause no leave shall be required to issue or serve a writ for service out of the jurisdiction, and the time for appearance to such writ may be fixed by the Reg-istrar in a summary way. This rule applies as well to notice of the. writ, and all papers required to be served with the writ or notice thereof, as to-the writ itself. v _ . • :-Amendment of statement of claim ' roi'j,; ' J I tit-: 16. (1) The statement of claim" may be amended without leave-before service-thereofi 7——: — ~ ?!Bule lreads: ;•' ynl z-nq :r..:>.:u No service; of writ shall be required when the defendant, by his solicitor, undertakes in writing to accept service, and enters an appear-ance. . ";'V :F>:r-"-'^ -!'o '7' ';- -,- - ' •'. .tRule 8 reads:. •^.-."t n\ 8.: Where any person serving in Her Majesty's Canadian Forces outside of Canada has been served by an officer of Her Majesty's Canadian Forces with a writ of summons, notice of a writ, or any originating notice, petition, notice of motion, or other originating pro-ceeding under any statute, Rule of Court, or practice whereby pro-ceedings can be commenced otherwise than by writ of summons, then proof of such service in the form of a certificate of service in Form No. 231 in Appendix B, certified by the officer, when- filed in the Registry, may be accepted in lieu of the affidavit of service required under these Rules. .. 824 APPENDIX I. (2) After service of the writ and statement of claim, notice of any application to amend the same shall, unless otherwise ordered, be served on every defendant who has entered an appearance. (3) The amendment shall be made by filing a new copy of the statement of claim verified by an affidavit complying with Rule 12 of this Order. (4) The amended writ or statement of claim with the affidavit of verification and any order granting leave to amend shall be served upon the defendants, unless otherwise ordered, but service shall not be dispensed with where a new cause of action is added. (5) This Rule is substituted for Rules 2, 3, and 4 of Order XXVIH, and Rules 8* and 9 f of said Order shall not apply. Counterclaim •17.- (1) Where a defendant seeks relief in the action, he shall deliver, a counterclaim. ; c (2) The rules relating to a matrimonial cause shall apply, mutatis mutandis, to a counterclaim. No judgment except upon trial . , ,', 18. In any action for dissolution or nullity of marriage or for judicial separation, no judgment shall be entered upon con-sent of the parties, or in default of appearance or of pleading, or otherwise than after a trial. Trial •• ->'•' r :,; ^ : • 19. (1) Before a matrimonial cause is set down for trial, the pleadings and proceedings in the cause shall be referred by the plaintiff or defendant to the Registrar, who shall certify that the same are correct and in order, and the Registrar shall •Rule-8 reads: - -8.- An indorsement or pleading may be amended by written altera-tions in the copy which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amend-ments require the insertion of more than 200 words in any one place, or are so numerous or of such a nature that the making of them in writing would render the document difficult or inconvenient to read, in either of which cases the amendment must be made by deliv-ering a fresh copy of the document as amended. t Rule 9 reads: ' . •' * '• • . 9 . Whenever any indorsement or pleading is amended, the same when amended shall be marked with the date of the order (if any) under which the same is so amended, and of the day on which such amendment is made, in manner following, viz: "Amended day of pursuant to order of dated the of ." u i r . : . i '^ c,.. BRITISH COLUMBIA RULES 825 cause any irregularity in the pleadings or proceedings to be corrected or refer any question arising thereon to a Judge for his direction. . (2) All matrimonial causes shall be heard by a Judge with-out a jury: Provided that in an action for dissolution of mar-riage where damages are claimed, upon the application of any party thereto for a trial with a jury, an order shall be made for trial by a Judge with a common jury. (3) The application in such case shall be returnable not later than four days after notice of trial, or appointment for trial, as the case may be, has been given. "Jury Act" to apply 20. The provisions of the "Jury Act" as to qualification/ selection, drawing, and summoning of a common jury and the rules for empanelling such a jury shall apply to every trial by jury in a matrimonial cause. Questions for jury 21. Upon a trial by jury, all questions of fact shall be determined by the jury upon written questions submitted to them by the Judge. A general verdict shall not be taken. Attorney-general may intervene 22. In any matrimonial cause the Attorney-General may intervene at any stage of the action for the purpose of showing collusion or fraud or of bringing any evidence before the Court. Notice of Intervention 23. Where the Attorney-General intervenes, he shall file and serve a notice of intervention and shall thereafter be served with notice of all proceedings in the action. :a Directions . =.'!.I JIT.:.--.-:-'' •'• '. 24. Where the Attorney-General has intervened, he or any party to the action may apply on motion to a Judge for direc-tions concerning the intervention. ; " ••• _-7;.. Stay of proceedings . ; ' : . ' / . - i r l v i crisi;-i,\: V n - y u v i 25. At any time before judgment the Court or Judge may direct a stay of proceedings for such time as they or he thinks fit in order that the Attorney-General may intervene, and may direct the Registrar to notify the Attorney-General accordingly. Defendant mentally ill person •• • -26. (a) Where a party defendant to a matrimonial cause is a mentally ill person within the meaning of the "Mental Hos-pitals Act" at the time.of the issue of the writ, he shall be 826 APPENDIX I; served and the action proceed as in the ordinary case of a defendant who is a lunatic or person of unsound mind not so found by inquisition. -(b) Where a party defendant to a matrimonial cause be-comes a mentally ill person within the meaning of the "Mental Hospitals Act" pending the action, such notice shall be given . to his committee, guardian, or next of kin as the Court or a Judge may direct; and ' * •_ (c) Where a party to a matrimonial cause is a mentally ill person within the meaning of the "Mental Hospitals Act," the affidavits required by these rules to be made by such party if he were mentally sound shall not be necessary, but the com-mittee, guardian, or next friend of such party shall in lieu thereof file an affidavit showing that he has made a careful inquiry into the facts, and that to the best of his knowledge, information, and belief the facts required to be deposed to, if the party were mentally sound, are true. Infants 27. (a) An infant who has attained the age of 14 years may elect a guardian ad litem for the purpose of any proceeding in a matrimonial cause on his or her behalf. (6) The election, the consent of the guardian to act, and an affidavit showing fitness and no contrary interest must be filed in the Registry before an elected guardian can act on behalf of the infant. . (c) A guardian for an infant under the age of i4 years may be assigned by a Judge upon motion supported by affidavits. Infants need not be represented except in certain cases 28. Subject to the last preceding Rule, it shall not be nec-essary for an infant, plaintiff or defendant, whose, marriage is the subject of the proceeding and who has attained the age of 14 years, to be represented by his next friend or guardian for the purpose of any proceeding in a matrimonial cause, except in actions or matters where alimony, maintenance, or damages is claimed against him^  or where a claim is made respecting his property. / . . -.;M.:://.>v./:--.,,. ,,;iyvb 29. The Court or a Judge may at any time pending action, and if necessary from time to time, make such order as it or he thinks fit for payment of or security for the wife's costs, not-withstanding that the decision of the Court at the trial of the action is against the wife. . ; _ \. ^  0l;> •<.. . £',-},a BRITISH" COLUMBIA RULES 827 Interim alimony . - • • 30. Whether applied for or not in the statement of claim, the wife being the plaintiff in the action may apply to the Court or a Judge by motion at any time after the statement of claim has been duly served on the husband, or, being a defendant, after having entered an appearance, for interim alimony. Permanent alimony, when begins -32. Permanent alimony or maintenance shall, unless other-wise ordered, commence from the date of judgment in the action. Increase or decrease of alimony 1 ' '  ' ' 33. A wife may, at any time after interim alimony has been granted to her, apply to the Court or a Judge by motion for an increase of alimony by reason of the increased means of the husband or the reduction of her own means, and the hus-band may likewise apply for a decrease of interim alimony by reason of his reduced means or the wife's increased means. This Rule applies also to permanent alimony, except that in such case the application shall be by originating notice.* Evidence on applications for alimony .*'.' 34. ' All applications for alimony or maintenance may be disposed of on affidavit or in such manner as the Court or Judge may direct. Proceedings under "Legitimacy Declaration Act, 1858" 35. This Order shall extend to proceedings under the "Legit-imacy Declaration Act, 1858" (Imp.), so far as the same may be applicable thereto. r. .;. ;>:';;:.; :.<'.:.~:J i. K 1 a-Lii! bt^riiM f^^yr: MANITOBA . 'rp' ;^ l^:.,^'^'^ Q u e e n ' s B e n c h Act ". H -rv-Mr'V^r &:A&f}\ni':RJSM., 1954, Ch. 52. , ^ ;vbruu ... r"X:4'ru:r<cs?(u ii tvSJz-:lr.?i3L edi v;u .feiiebcvyt asv/ Jnoxn Alimony , . ;,... .^.r. ... ,.. . vnVVr...v . .: c o fH 0 \j 5lX;The court shaU have jurisdictioh^^to ! , " I' any wife who would be entit led to a l i m o n y by the law of E n g -land, o r to any wife who would be entit led b y the law of E n g -land to a divorce, and to a l i m o n y as incident thereto, o r to a n y wife whose husband l ives separate f r o m h e r wi thout a n y suffi-cient cause and under circumstances w h i c h would entitle her by the l a w of E n g l a n d to a decree f o r the rest i tut ion of con-] *Quaere whether the court is empowered to vary a maintenance order under the provisions of this section. See Herbert, (1960) The Advocate, vol. 18, at pp. 205, 207. - - -- 148 -APPENDIX I I Divorce and Matrimonial Causes Act Chapter 118 V .1 1960 DIVORCE AND MATRIMONIAL CAUSES CHAP. 118 CHAPTER 118 Divorce and Matrimonial Causes Act Whereas it is expedient to amend the law relating to divorce, and to constitute a Court with exclusive jurisdiction in matters matrimonial in England, and with authority in certain cases to decree the dissolution of a marriage: Be it therefore enacted as follows:— Jurisdiction over causes matrimonial to be exer- • cised by the Court for Divorce and Matrimonial Causes. No decree for divorce a mensa et thoro to be made here-after, but a judicial separation. Judges of the Court. 1. All jurisdiction now vested in or exercisable by any Ecclesiastical Court or person in England in respect of divorces a mensa et thoro, suits of nullity of marriage, suits of jactitation of marriage, suits for restitution of conjugal rights, and in all causes, suits, and matters matrimonial, except in respect of marriage licences, belongs to and is vested in Her Majesty, and such jurisdiction, together with the jurisdiction conferred by this Act, shall be exercised in the name of Her Majesty in a Court of Record to be called the " Court for Divorce and Matrimonial Causes." [20 & 21 Vict., c. 85, s. 6]; R.S. 1948, c. 97, s. 1. 2. No decree shall hereafter be made for a divorce a mensa et thoro, but in all cases in which a decree for a divorce a mensa et thoro might now be pronounced the Court may pronounce a decree for a judicial separation, which shall have the same force and the same consequences as a divorce a mensa et thoro now has. [20 & 21 Vict., c. 85, s. 7]; R.S. 1948, c. 97, s. 2. • ' ," 3. The Lord1 Chancellor, the Lord Chief Justice of the Court of King's Bench, the Lord Chief Justice of the Court of Common Pleas, the Lord Chief Baron of the Court of Exchequer, the Senior Puisne Judge for the time being in each of the three last-mentioned Courts, and the Judge of Her Majesty's Court of Probate constituted by any Act of the present session, shall be the Judges of the said Court. [20 & 21 Vict, c. 85, s. 8]; R.S. 1948, c. 97, s. 3. Petitions for dissolution of a marriage, etc., to be heard by three Judges. 4. All petitions, either for the dissolution or for a sentence of nullity of marriage, and applications for new trials of questions or issues before a jury, shall be heard and determined by three or more Judges of the said Court, of whom the Judge of the Court of Probate shall be one. [20 & 21 Vict., c. 85, s. 10]; R.S. 1948, c. 97, s. 4. fudYciSse'pa- **• ^ sentence of judicial separation (which shall have the effect of obtamedabybe a divorce a mensa et thoro under the existing law, and such other legal effect as herein mentioned)-may be obtained, either by the husband or the wife, on the ground of adultery, or cruelty, or desertion without cause for two years and upwards. [20 & 21 Vict., c. 85, s. 16]; R.S. 1948, c. 97, s. 5. 1197 husband or wife for adultery, etc. CHAP., 118 DIVORCE AND MATRIMONIAL CAUSES 9 ELIZ. 2 Court to act on principles of the Ecclesiastical Courts. Decree of separation obtained during the absence of husband or wife may be reversed. 6. In all suits and proceedings, other than proceedings to dissolve any marriage, the said Court shall proceed and act and give relief on principles and rules which in the opinion of the said Court are as nearly as may be conformable to the principles and rules on which the Ecclesi-astical Courts have heretofore acted and given relief, but subject to the provisions herein contained and to the rules and orders under this Act. [20 & 21 Vict., c. 85, s. 22]; R.S. 1948, c. 97, s. 6. 7. (1) Any husband or wife, upon the application of whose wife or husband, as the case may be, a decree of judicial separation has been pronounced, may, at any time thereafter, present a petition to the Court praying for a reversal of such decree on the ground that it was obtained in his or her absence, and that there was reasonable ground for the alleged desertion, where desertion was the ground of such decree. (2) The Court may, on being satisfied of the truth of the allegations of such petition, reverse the decree accordingly, but the reversal thereof shall not prejudice or affect the rights or remedies which any other person would have had in case such reversals had not been decreed, in respect of any debts, contracts, or acts of the wife incurred, entered into, or done between the times of the sentence of separation and of the reversal thereof. [20 & 21 Vict., c. 85, s. 23]; R.S. 1948, c. 97, s. 7. • Court may direct pay-ment of ali-mony to wife or to her trustee. 8. In all cases in which the Court makes a decree or order for alimony, it may direct the same to be paid either to the wife herself or to any trustee on her behalf, to be approved by the Court, and may impose any terms or restrictions which to the Court may seem expedient, and may from time to time appoint a new trustee, if for any reason it appears to the Court expedient so to do. [20 & 21 Vict., c. 85, s. 24]; R.S. 1948, c. 97, s. 8. In case of judicial sepa-ration the wife to be considered a feme sole with respect to property she may acquire, etc. Also for purposes of contract and suing. 1198 9. In every case of a judicial separation the wife shall, from the date of the sentence and whilst the separation shall continue, be considered as a feme sole with respect to property of every description which she may acquire or which may come to or devolve upon her; and such property may be disposed of by her in all respects as a feme sole, and on her decease the same shall, in case she shall die intestate, go as the same would have gone if her husband had been then dead; but if any such wife again cohabits with her husband, all such property as she may be entitled to when such cohabitation takes place shall be held to her sepa-rate use, subject, however, to any agreement in writing made between herself and her husband while separate. [20 & 21 Vict., c. 85, s. 25]; R.S. 1948, c. 97, s. 9. 10. In' every case of a judicial separation the wife shall, whilst so separated, be considered as a feme sole for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceedings; and her husband is not liable in respect of any engagement or contract 1960 DIVORCE AND MATRIMONIAL CAUSES CHAP. 118 Provisions respecting property of . wife to extend to property vested in her as executrix, etc. On adultery of wife or incest, etc., of husband, petition for dissolution of marriage may be presented. As to " incestuous adultery." Adulterer to be a co-respondent. she may have entered into, or for any wrongful act or omission by her, or for any costs she may incur as plaintiff or defendant; but where upon a n y such judicial separation alimony has been decreed or ordered t o be paid to the wife, and the same is not duly paid by the husband, he is liable for necessaries supplied for her use; and nothing shall prevent the wife from joining, at any time during such separation, in the exercise, of any joint power given to herself and her husband. [20 & 21 Vict., c- 85, s. 26]; R.S. 1948, c. 97, s. 10. 11. The provisions respecting the property of a wife who has ob-tained a decree for judicial separation or an order of protection shall be, deemed to extend to property to which such wife has become or becomes entitled as executrix, administratrix, or trustee since the sentence of separation or the commencement of the desertion (as the case may be); and the death of the testator or intestate shall be deemed to be the time when such wife became or becomes entitled as executrix or administra-trix. [21 &22 Vict, c. 108, s. 7]; R.S. 1948, c. 97, s. 11. 12. (1) Any husband may 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. (2) .Any wife may present a petition to the said C o u r t , praying t h a t ; h e r marriage may be dissolved, on the g r o u n d that s i n c e the c e l e b r a t i o n t h e r e o f h e r husband has been guilty of (a) incestuous adultery; or bigamy with adultery; or rape; or sodomy or bestiality; or adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro; or adultery coupled with desertion, without reasonable excuse, for two years or upwards. (3) 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. (4) For the purposes of this Act incestuous adultery shall be taken t o 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, t o any other person during the life of the former husband or wife, whether the second marriage shall have taken place within the dominions of Her Majesty or elsewhere. [20 & 21 Vict., c. 85, s. 27]; R.S. 1948, c . 97, s . 12. 13. (1) Upon a n y such petition presented by a husband, the peti-tioner shall make the alleged adulterer a co-respondent t o t h e s a i d peti-1199 (b) (c) (d) (e) (/) CHAP. 118 DIVORCE AND MATRIMONIAL CAUSES 9 E L I Z . 2 Cause may be tried by a jury. Court to be satisfied of absence of collusion. Dismissal of petition. Power to Court to pronounce decree for dissolving marriage. Alimony. tion, unless on special grounds, to be allowed by the Court, he is excused from so doing. (2) On every petition presented by a wife for dissolution of marriage, the Court, if it see fit, may direct that the person with whom the husband is alleged to have committed adultery be made a respondent. (3) The parties or either of them may insist on having the contested matters of fact tried by a jury as hereinafter mentioned. [20 & 21 Vict., c. 85, s. 28]; R.S. 1948, c. 97, s. 13. 14. Upon any such petition for the dissolution of a marriage, it is the duty of the Court to satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or no the petitioner has been in any manner accessory to or conniving at the adultery, or has condoned the same, and shall also inquire into any countercharge which may be made against the petitioner. [20 & 21 Vict., c. 85, s. 29]; R.S. 1948, c. 97, s. 14. 15. In case the Court, on the evidence in relation to any such petition, is not satisfied that the alleged adultery has been committed, or finds that the petitioner has during the marriage been accessory to or conniving at the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then and in any of the said cases the Court shall dismiss the said petition. [20 & 21 Vict., c. 85, s. 30]; R.S. 1948, c. 97, s. 15. 16. In case the Court is satisfied on the evidence that the case of the petitioner has been proved, and does not find that the petitioner has been in any manner accessory to or conniving at the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then the Court shall pronounce a decree declaring such marriage to be dissolved; but the Court is not bound to pronounce such decree if it finds that the petitioner has during the marriage been guilty of adultery, or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting the petition, or of cruelty towards the other party to the marriage, or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct as has conduced to the adultery. [20 & 21 Vict., c. 85, s. 31]; R.S. 1948, c. 97, s. 16. 17. (1) The Court may, if it shall think fit, on any such decree, order that the husband shall to the satisfaction of the Court secure to the wife such gross sum of money, or such annual sum of money, for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it deems reasonable, and for that purpose may refer it to any one of the 1200 1960 DIVORCE AND MATRIMONIAL CAUSES CHAP. 118 conveyancing counsel of the Court of Chancery to settle and approve of a proper deed or instrument to be executed by all necessary parties. (2) The said Court may in such case, if it shall see fit, suspend the pronouncing of its decree until such deed shall have been duly executed. (3) Upon any petition for dissolution of marriage the Court has the same power to make interim orders for payment of money, by way of alimony or otherwise, to the wife as it would have in a suit instituted for judicial separation. [20 & 21 Vict, c. 85, s) 32]; R.S. 1948, c. 97, s. 17. cte?madam?ay -"-8. (1) Any husband may, either in a petition for dissolution of aluiterers marriage or for judicial separation, or in a petition limited to such object only, claim damages from any person on the ground of his having com-mitted adultery with the wife of such petitioner, and such petition shall be served on the alleged adulterer and the wife, unless the Court dis-penses with such service, or direct some other service to be substituted. (2) The claim made by every such petition shall be heard and tried on the same principles, in the same manner, and subject to the same or the like rules and regulations as actions for criminal conversation are now tried and decided in Courts of Common Law. (3) All the enactments herein contained with reference to the hearing and decision of petitions to the Court shall, so far as may be necessary, be deemed applicable to the hearing and decision of petitions presented under this enactment. (4) The damages to be recovered on any such petition shall in all cases be ascertained by the verdict of a jury, although the respondents or either of them may not appear. (5) After the verdict has been given the Court may direct in what manner such damages shall be paid or applied, and may direct that the whole or any part thereof shall be settled for the benefit of the children . . (if any) of the marriage, or as a provision for the maintenance of the wife. [20 & 21 Vict., c. 85, s. 33]; R.S. 1948, c. 97, s. 18. counworder Whenever in a petition presented by a husband the alleged adul-to pay'costs t e r e r * s made a co-respondent, and the adultery has been established, the Court may order the adulterer to pay the whole or any part of the costs of the proceedings. [20 & 21 Vict, c. 85, s. 34]; R.S. 1948, c. 97, s. 19. cou"to° I n any suit or other proceeding for obtaining a judicial separation asatoecus1ody o r a decree of nullity of marriage, and on any petition for dissolving of children. a marriage, the Court may from time to time, before making its final decree, make such interim orders, and may make such provision in the final decree, as it may deem just and proper with respect to the custody, maintenance, and education of the children the marriage of whose parents is the subject of such suit or other proceeding, and may, if it shall think fit, direct proper proceedings to be taken for placing such children under the protection of the Court of Chancery. [20 & 21 Vict., c. 85, s. 35]; R.S. 1948, c. 97, s. 20. 1201 G H A P . H S DIVORCE AND MATRIMONIAL CAUSES 9 E L I Z . 2 Intervention by Attorney-General. 21. On any petition brought under this Act the Attorney-General may intervene, and may file a notice of intervention in the cause. R.S. 1948, c. 97, s. 21. Collusion, fraud, etc. Service of notice of intervention. Directions concerning intervention. Power to stay proceedings to permit intervention. 22. Upon intervention the Attorney-General may at any stage of the proceedings, and whether he has filed a notice of intervention or not, show collusion or fraud or that the petitioner has been accessory to or has connived at or condoned the adultery or any other facts upon which the petition may be dismissed. R.S. 1948, c. 97, s. 22. 23. (1) Where the Attorney-General files a notice" of intervention he shall serve a copy thereof on each of the parties or their solicitors; and he may thereafter by notice require the parties of any of them to serve upon him all pleadings and proceedings filed by them respectively in the cause, including those already filed. (2) Any notice to be given under this section may be served in the same manner as is provided for the service of any document other than a petition. R.S. 1948, c. 97, s. 23. 24. Where the Attorney-General has intervened he, or any party to the cause, may apply on summons to a Judge for directions concerning the intervention. R.S. 1948, c. 97, s. 24. 25. At any time before the pronouncement of a decree in the cause a Judge may direct a stay of proceedings for such time as he thinks fit in order that the Attorney-General may intervene, and upon a Judge making such direction he shallcause the District Registrar of the Court to serve notice of the staying of proceedings upon the Attorney-General. R.S. 1948, c. 97, s. 25. Questions of fact may be tried before the Court. 26. In questions of fact arising in proceedings under this Act it is lawful for, but, except as hereinbefore provided, not obligatory upon, the Court to direct the truth thereof to be determined before itself, or before any one or more of the Judges of the said Court, by the verdict of a special or common jury. [20 & 21 Vict., c. 85, s. 36]; R.S. 1948, c. 97, s. 26. Where a ques-tion is ordered to be tried, a jury may be summoned as in the Com-mon Law Courts. 27. (1) The Court, or any Judge thereof, may make all such rules and orders upon the Sheriff or any other person for procuring the atten-dance of a special or common jury for the trial of such question as may now be made by any of the Superior Courts of Common Law at West-minster, and may also make any other orders which to such Court or Judge may seem requisite. (2) Every such jury shall consist of persons possessing the like quali-fications, and shall be struck, summoned, balloted for, and called in like manner, as if such jury were a jury for the trial of any cause in any of the said Superior Courts. 1202 1960 DIVORCE AND MATRIMONIAL CAUSES CHAP. 118 Rights to challenge. S u c h question to be reduced into writing a n d a jury to be sworn to try it. Judge to have same powers as at N i s i P r i u s . B i l l s of excep-tions, special verdict, a n d special case. (3) Every juryman so summoned is entitled to the same rights, and subject to the same duties and liabilities, as if he had been duly sum-moned for the trial of any such cause in any of the said Superior Courts. (4) Every party to any such proceeding is entitled to the same rights as to challenge and otherwise as if he were a party to any such cause. [20 & 21 Vict., c. 85, s. 37]; R.S. 1948, c. 97, s. 27. 28. When any such question is so ordered to be tried, such question shall be reduced into writing in such form as the Court shall direct, and at the trial the jury shall be sworn to try the said question, and a true verdict to give thereon according to the evidence; and upon every such trial the Court or Judge has the same powers, jurisdiction, and authority as any Judge of any of the said Superior Courts sitting at Nisi Prius. [20 & 21 Vict., c. 85, s. 38]; R.S. 1948, c. 97, s. 28. 29. (1) Upon the trial of any such question or of any issue under this Act, a bill of exceptions may be tendered, and a general or special verdict or verdicts, subject to a special case, may be returned, in like manner as in any cause tried in any of the said Superior Courts. (2) Every such bill of exceptions, special verdict, and special case respectively shall be stated, settled, and sealed in like manner as in any cause tried in any of the said Superior Courts, and where the trial has not been had in the Court for Divorce and Matrimonial Causes shall be returned into such Court without any writ of error or other writ. (3) The matter of law in every such bill of exceptions, special verdict, and special case shall be heard and determined by the Full Court, subject to such right of appeal as is hereinafter given in other cases. [20 & 21 Vict., c. 85, s. 39]; R.S. 1948, c. 97, s. 29. , 30. Every person seeking a decree of nullity of marriage, or a decree of judicial separation, or a dissolution of marriage, or decree in a suit of jactitation of marriage, shall, together with the petition or other application for the same, file an affidavit verifying the same so far as he or she is able to do so, and stating that there is not any collusion or connivance between the deponent and the other party to the marriage. [20 & 21 Vict., c. 85, s. 41]; R.S. 1948, c. 97, s. 30. 31. Every such petition shall be served on the party to be affected thereby, either within or without Her Majesty's dominions, in such manner as the Court by any general or special order from time to time directs, and for that purpose the Court has all the powers conferred by any Statute on the Court of Chancery, but the said Court may dispense with such service altogether in case it seems necessary or expedient so to do. [20 & 21 Vict., c. 85, s. 42]; R.S. 1948, c. 97, s. 31. E x a m i n a t i o n 32. The Court may, if it thinks fit, order the attendance of the 01 petitioner. J ' ' petitioner, and may examine him or her, or permit him or her to be examined or cross-examined, on oath on the hearing of any petition, but 1203 Affidavit i n support o f a petition. Service of petition. CHAP. 118 DIVORCE AND MATRIMONIAL CAUSES 9 E L I Z . 2 no such petitioner is bound to answer any question tending to show that he or she has been guilty of adultery. [20 & 21 Vict., c. 85, s. 43]; R.S. 1948, c. 97, s. 32. Adjournment. 3 3 7/he Court may from time to time adjourn the hearing of any such petition, and may require further evidence thereon, if it sees fit so to do. [20 & 21 Vict., c. 85, s. 44]; R.S. 1948, c. 97, s. 33. Court may order settle- 34. In any case in which the Court pronounces a sentence of divorce Sty for benefitor judicial separation for adultery of the wife, if it is made to appear to the Court that the wife is entitled to any property either in possession of reversion, the Court may, if it thinks proper, order such settlement as it thinks reasonable to be made of such property or any part thereof for the benefit of the innocent party, and of the children of the marriage, or either or any of them. [20 & 21 Vict., c. 85, s. 45]; R.S. 1948, c. 97, s. 34. of innocent party and children of marriage. Mode of tak-ing evidence. Court may issue commis-sions or give orders for examination of witnesses abroad or unable to . attend. 35 . Subject to section 36 and such rules and regulations as may be established as herein provided, the witnesses in all proceedings before the Court where .their attendance can be had shall be sworn and exam-ined orally in open Court; but parties, except as hereinbefore provided, shall be at liberty to verify their respective cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party or by direction of the Court, be subject to be cross-examined by or on behalf of the opposite party orally in open Court, and after such cross-examination may be re-examined orally in open Court as aforesaid by or on behalf of the party by whom such affidavit was filed. [20 & 21 Vict., c. 85, s, 46]; R.S. 1948, c. 97, s. 35. 36. (1) Where a witness is out of the jurisdiction of the Court, or where, by reason of his illness or from other circumstances, the Court does not think fit to enforce the attendance of the witness in open Court, the Court may order a commission to issue for the examination of such witness on oath, upon interrogatories or otherwise, or, if the witness is within the jurisdiction of the Court, may order the examination of such witness on oath, upon interrogatories or otherwise, before any officer of the said Court, or other person to be named in such order for the purpose. (2) All the powers given to the Courts of Law at Westminster by the Acts of the thirteenth year of King George the Third, chapter 63, and of the first year of King William the Fourth, chapter 22, for enabling the Courts of Law at Westminster to issue commissions and give orders for the examination of witnesses in actions depending in such Courts, and to enforce such examination, and all the provisions of the said Acts, and of any other Acts for enforcing or otherwise applicable to such examina-tion and the witnesses examined, extend and are applicable to the Court and to the examination of witnesses under the commissions and orders of the said Court, and to the witnesses examined, as if such Court were 1204 1960 DIVORCE AND MATRIMONIAL CAUSES CHAP.. 118 one of the Courts of Law at Westminster, and the matter before it were an action pending in such Court. [20 & 21 Vict., c. 85, s. 47]; R.S. 1948, c. 97, s. 36. Rules of evidence in 37. The rules of evidence observed in the Superior Courts of Com-courM°tobe'w m o n Law at Westminster are applicable to and shall be observed in the trial of all questions of fact in the Court. [20 & 21 Vict., c. 85, s. 48]; R.S. 1948, c. 97, s. 37. observed. Attendance of witnesses on the Court. Penalties for false evidence. Costs. Fees to be regulated. 38. (1) The Court may, under its seal, issue writs of subpoena or subpoena duces tecum, commanding the attendance of witnesses at such time and place as shall be therein expressed. (2) Such writs may be served in any part of Great Britain or Ireland. (3) Every person served with such writ is bound to attend, and to be .sworn and give evidence in obedience thereto, in the same manner as if it had been a writ of subpoena or subpoena duces tecum issued from any of the said Superior Courts of Common Law in a cause pending therein, and served in Great Britain or Ireland, as the case may be; but any petitioner required to be examined, or any person called as a witness or required or desiring to make an affidavit or deposition under or for the purposes of this Act, shall be permitted to make his solemn affirmation or declaration instead of being sworn in the circumstances and manner in which a person called as a witness or desiring to make an'affidavit or deposition would be permitted so to do under the Common Law Pro-cedureActi 1854, in cases within the provisions of that Act. [20 & 21 Vict., c. 85, s. 49]; R.S. 1948, c. 97, s. 38. 39. All persons wilfully deposing or affirming falsely in any proceed-ing before the Court shall be deemed to be guilty of perjury, and are liable to all the pains and penalties attached thereto. [20 & 21 Vict., c. 85, s. 50]; R.S. 1948, c. 97, s. 39. 40. The Court on the hearing of any suit, proceeding, or petition under this Act, and the House of Lords on the hearing of any appeal under this Act, may make such order as to costs as to such Court or House respectively may seem just, but there shall be no appeal on the sub-ject of costs only. [20 & 21 Vict., c. 85, s. 51]; R.S. 1948, c. 97, s. 40. 41. The Court has full power to fix and regulate from time to time the fees payable upon all proceedings before it, all which fees shall be received, paid, and applied as herein directed, and the said Court may make such rules and regulations as it may deem necessary and expedient for enabling persons to sue in the said Court in forma pauperis. [20 & 21 Vict., c. 85, s. 54]; R.S. 1948, c. 97, s. 41. Liberty to parties to 42. When the time limited for appealing against any decree dissolving marry again. a m a r r iage or declaring a marriage null and void has expired, and no 1205 CHAP. 118 DIVORCE AND MATRIMONIAL CAUSES 9 ELIZ. 2 appeal has been presented against such decree, or when any such appeal has been dismissed, or when in the result of any appeal any marriage is declared to be dissolved or declared to be null and void, but not sooner, it is lawful for the respective parties thereto to marry again, as if the compdildmon P " o r m a r r i a g e had been dissolved by death; but no clergyman in holy certain"26 orders of the United Church of England and Ireland shall be compelled marriages. to solemnize the marriage of any person whose former marriage may have been dissolved on the ground of his or her adultery, or is liable to any suit, penalty, or censure for solemnizing or refusing to solemnize the marriage of any such person. [20 & 21 Vict., c. 85, s. 57]; R.S. 1948, c. 97, s. 42. ascertain In any case where either of the parties with respect to whom marriages. there has, before the thirty-first day of January, 1942, been solemnized the rites or ceremony of marriage in.accordance with any of the forms sanctioned by the Marriage Act, is a person whose previous marriage was dissolved by a decree absolute in divorce proceedings, and where the ceremony or rites were solemnized before the expiry of the time limited for appealing against the decree absolute, if the time limited for appeal-ing has expired without any appeal having been presented against the divorce, and if there was no impediment to the marriage purported to have been solemnized by the said ceremony or rites other than the impediment imposed by section 42, the marriage purported to be so solemnized is declared to be valid; and the parties with respect to whom the ceremony or rites were solemnized shall be deemed to have been lawfully married on the date of the ceremony or rites. R.S. 1948, c. 97, s. 43. any^ hurch01 W n e n a n v minister of any church or chapel of the United Church toCperform^  O I England and Ireland refuses to perform such marriage service between monya!nyere" a n v P e r s o n s who but for such refusal would be entitled to have the same mayperfOTrrf s e r v i c e performed in such church or chapel, the minister shall permit such service. a n v o m e r minister in holy orders of the said United Church, entitled to officiate within the diocese in which such church or chapel is situate, to perform such marriage service in such church or chapel. [20 & 21 Vict., c. 85, s. 58]; R.S. 1948, c. 97, s. 44. Eng^ and'for1 45 . After this Act has come into operation no action shall be main-cominrsation tamable in England for criminal conversation. [20 & 21 Vict., c. 85, s. 59]; R.S. 1948, c. 97, s. 45. Sdmafy of ^ * s J a w r i n f ° r t n e Judge Ordinary of the Court for Divorce and the court for Matrimonial Causes for the time being to sit in Chambers for the dis-Divorce and ° Mattimomai patch of such part of the business of the said Court as can in the opinion charnbers °^ t n e s a * ^ Judge Ordinary, with advantage to the suitors, be heard in a m 1206 1960 DIVORCE AND MATRIMONIAL CAUSES CHAP. 118 Indemnity to corporations, etc., making payments under orders afterwards reversed. Chambers, and such sittings shall from time to time be appointed by the said Judge Ordinary. [21 & 22 Vict., c. 108, s. 1]; R.S. 1948, c. 97, s. 46. judgVwhln ^ n e s a ^ J u <^8 e Ordinary when so sitting in Chambers has and chambers s n a ^ e x e r ci s e the same power and jurisdiction in respect of the business to be brought before him as if sitting in open Court. [21 & 22 Vict., c. 108, s. 3]; R.S. 1948, c. 97, s. 47. 48. A l l persons and corporations who shall, in reliance on any order or decree, make any payment to, or permit any transfer or act to be made or done by, the wife who has obtained an order of protection shall, notwithstanding such order or decree may then have been discharged, reversed, or varied, or the separation of the wife from her husband may have ceased, or at some time since the making of the order or decree been discontinued, be protected and indemnified hrthe-same way in all respects as if, at the time of such payment, transfer, or other act, such order or decree were valid and still subsisting without variation in full force and effect, and the separation of the wife from her husband had not ceased or been discontinued, unless at the time of such payment, transfer, or other act such persons or corporations had notice of the discharge, reversion, or variation of such order or decree, or of the cessation or discontinuance of such separation. [21 & 22 Vict., c. 108, s. 10]; R.S. 1948, c. 97, s. 48. 49. In all cases now pending or hereafter to be commenced in which, on the petition of a husband for a divorce, the alleged adulterer is made co-respondent, or in which, on the petition of a wife, the person with whom the husband is alleged to have committed adultery is made a respondent, the Court may, after the close of the evidence on the part of the petitioner, direct such co-respondent or respondent to be dismissed from the suit, if it shall think there is not sufficient evidence against him or her. [21 & 22 Vict., c. 108, s. 11]; R.S. 1948, c. 97, s. 49. 5 0 . The bill of any proctor, attorney, or solicitor for any fees, charges, or disbursements in respect of any business transacted in the Court for Divorce and Matrimonial Causes, and whether the same was transacted before the Full Court or before the Judge Ordinary, shall, as well between proctor of attorney or solicitor and client as between party and party, be subject to taxation by any one of the Registrars belonging to the principal registry of the Court of Probate, and the mode in which any such bill shall be referred for taxation, and by whom the costs of taxation shall be paid, shall be regulated by the rules and orders to be made under the Act of the twentieth and twenty-first of Victoria, chapter 85, and the certificate of the Registrar of the amount at which such bill is taxed shall be subject to appeal to the Judge of the said Court. [21 & 22 Vict., c. 108, s. 13]; R.S. 1948, c. 97, s. 50. 1207 Where alleged adulterer a co-respondent, < Court may order him to be dismissed from the suit. Bills of proctors, at-torneys, etc., to be subject to taxation. CHAP. 118 DIVORCE AND MATRIMONIAL CAUSES 9 ELIZ. 2 mrymaydi" W n e r e a n v t r ial n a s been had by a jury before the Full Court or nisTto^ new before the Judge Ordinary, or upon any issue directed by the Full Court trial, etc. o r D v the Judge Ordinary, the Judge Ordinary may, subject to any rules to be hereafter made, grant a rule nisi for a new trial, but no such rule shall be made absolute except by the Full Court. [21 & 22 Vict., c. 108, s. 18]; R.S. 1948, c. 97, s. 51. Printed by DON MCDIARMID, Printer to the Queen's Most Excellent Majesty in right of the Province of British Columbia. 1960 1208 - 149 -APPENDIX I I I Extract from: Chap. 130 EQUAL GUARDIANSHIP OF INFANTS ACT Sections: 12. In case a decree for j u d i c i a l separation or a decree either n i s i or absolute for divorce i s pronounced, the Court pronouncing the decree may thereby declare the parent by reason of venose misconduct the decree i s made to be a person u n f i t to have the custody of the children ( i f any) of the marriage; and, i n that case, the parent so declared to be u n f i t i s not en-t i t l e d as of ri g h t to the custody or guardianship of such children. R.S. 1948, c!39, s l 2 13. (1) The Court may, upon the app l i c a t i o n of ei t h e r parent of an in f a n t , make such order as i t may think f i t regarding the custody of the inf a n t and the r i g h t of access thereto of either parent, having regard to the welfare of the in f a n t , as to the conduct of the parents, and to the wishes as w e l l of the mother as of the father, and may, a l t e r , vary, or discharge such order on the application of eith e r parent, or af t e r the death of either parent, of any guardian. (2) I t i s not necessary for any parent who i s under the age of twenty-one years to bring or oppose any application under this section by a next friend or guardian ad litem. R.S. 1948, cl39, s l 3 , 1956, c22, s2. - 150 -APPENDIX IV BIBLIOGRAPHY Alexander, P. W. "The F o l l i e s of Divorce: A Therapeutic Approach to the Problem."- American Bar Association Journal, v o l . 36 (February 1950), pp. 105-108, 168-172. Alexander, P.W. 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University of I l l i n o i s Law Forum (Winter 1962), pp.618-632. - 152 -Dutko vs. Dutko (1946) 3 WWR 295 Egbert, W.G. N. "Divorce - Standard of Proof of Adultery." Canadian Bar Review, v o l . 30, 1952, p. 753. E h r l i c h , S.L. and Sproger, C.E. "X-Ray of Divorce - Recent Developments." University of I l l i n o i s Law Forum (Winter 1962), pp. 601 - 617. Elkins vs. Elkins (1952) 6 WWR (NS) 48 E l k i n F. The Family i n Canada. Canadian Conference on the Family, Ottawa, 1964. Equal Guardianship of Infants Act. RSBC 1960, Chapter 130. "Family L i f e Conference Suggests New J u d i c i a l Procedures and Attitudes Toward Marriage and Divorce." Canadian Bar  Review, v o l . 27, 1949, pp. 238-240. Fenberg, M. "Can Divorce Be Made Respectable?" Women Lawyers  Journal, v o l . 45, no. 3 (Summer 1959), pp. 13-15. F i e l d i n g C. R. and Ryan, H.R.S. Marriage i n Church and State. Anglican Book Centre, Toronto, 1965. Friedman, W. Law i n a Changing Society. Pelican Books, London, 1964. Foster, H.H, "Spadework f o r a Model Divorce Code." Journal of  Family Law, v o l . 1 (Spring 1961), pp. 11-39. Foster, H. H. and Freed, D. J . "Child Custody." New York  University Law Review, v o l . 39 (May-June 1964), pp. 423-443 and 615-630. Goldenberg, E. and Griffon* H. " C o n f l i c t of Laws - Domicile." Canadian Bar Review, v o l . 34 (March 1956), pp.335-339. Goode, W. J . A f t e r Divorce. Free Press of Glencoe, I l l i n o i s , 1956. Goodrich, H. F. "An Unsettled Problem i n Interstate Divorce Law." American Philosophical Society Proceedings, v o l . 97, no. 2, 1953, pp. 147-150. Graham vs. Graham and Detta (1957) 22 WWR 372. - 153 -Great B r i t a i n . Royal Commission on Marriage and Divorce Report. Minutes of Evidence. H.M.S.O., London, 1952-1956. Hahlo, H. R. "Can Law Reform Stop the Disintegration of Family L i f e ? " South African Law Journal, v o l . 71 (November 1954), pp. 391-395. Hargreaves vs. Hargreaves and Cassiday (I960) 32 WWR 159 Hechter vs. Hechter and Cohen (1958) 12 DLR (2d) 326 Herbert, R.G. "Disclosure of the Petitioner's Adultery and the P r i v i l e g e Against Sel f - i n c r i m i n a t i o n i n Divorce Cases." U.B.C. Legal Notes, v o l . 2, no. 3, p. 244. Herbert, R. D., ed. Cases and Mat e r i a l on Domestic Relations. Best P r i n t e r Co. Ltd., Vancouver, 1961. Hind vs. Hind and Wilson (1962) 31 DLR (2d) 622. Hossie, M.R.K. "Change of Domicile from One Province to Another - Evidence Required." Canadian Bar Review, v o l . 34 (February 1956), pp. 210-214. Howe vs. Howe (1937) O.R. 57. Hyde, L. and Associates. S o c i a l Casework Services i n a Divorce  Court* Department of Health and Welfare, State of Maine, 1960. Hyde, L. and Associates. A Casework Service f o r Parents and Children i n Divorce. National Conference on So c i a l Work, Columbus, Ohio, 1962. I n g l i s , B. D. "Divorce Reform i n New Zealand." Canadian Bar  Review, v o l . 43, no. 3 (September 1965), pp. 519-527. Jacoby, A. P. "Some Family Problems i n Canada and the United States: A Comparative Review." S o c i a l Problems: A  Canadian P r o f i l e . R^  Laskin, ed. McGraw-Hill Co., Toronto, 1964, pp. 280-284. Johnson vs. Johnson and Arnet (I960) 31 WWR (NS) 403 Johnstone, Q. "Divorce: The Place of the Legal System i n Dealing with M a r i t a l Discord Cases." Oregon Law Review, v o l . 31 (June 1952), pp. 297-329. J o l l y vs. J o l l y (1940) 2 WWR 148. - 154 -Kargman, M. W. "The Lawyer as Divorce Counsellor." American  Bar Ass'n. Journal, v o l . 46 ( A p r i l 1960), pp. 399-401. K e l l y , B. "Preventing Divorces: Oklahoma City's Family C l i n i c . " American Bar Association Journal, v o l . 45 (June 1959), pp. 556-568. Kinney, S. P. "Lawyers and Marriage Counselling - The Thera-peutic Approach to Divorce." Dicta , v o l . 28, no. 1 (January 1951), pp. 30-32. Kitchen, S. B, A History of Divorce. Chapman and H a l l Ltd., London, 1912. Knox vs. Knox (1942) 3 WWR 612. Kohut, N.C. "Rehabilitation of Broken Marriages by Attorneys." The P r a c t i c a l Lawyer, v o l . 10, no. 7 (November 1964), pp. 75-88. Kubie, L.S. "Provisions for Care of Children of Divorced Parents: A New Legal Instrument." Yale Law Journal, v o l . 73, no. 7 (June 1964), pp. 1197-1200. Landis, J.T. "The Trauma of Children When Parents Divorce*" Marriage and Family L i v i n g , v o l . 22 (February 1960), pp. 7-13. Langtry, V. H. "Juvenile Crime - An Approach to Solving Some Fundamental Problems Through Changes i n Divorce Laws." Oregon Law Review, v o l . 36 (February 1957), pp. 97-101. Lasok, D. "The Grounds of Divorce i n Transition." S o l i c i t o r ' s  Quarterly, v o l . 2, no. 4 (October 1963), p. 297. Latey, W. "Divorce Law i n A u s t r a l i a . " The Law Times, v o l . 228 (September 1959), p. 116. Law Society of B r i t i s h Columbia. Legal A i d i n B r i t i s h Columbia. Vancouver, 1963. 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"The Proposed Commonwealth Divorce Law." Australian  Law Journal, v o l . 26 (October 1952), pp. 307-308. 

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