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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 E x p l o r a t o r y Study o f Four Major Aspects o f 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 I m p l i c a t i o n s 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 F u l f i l m e n t of the Requirements f o r the Degree o f MASTER OF SOCIAL WORK i n the School o f S o c i a l Work  Accepted as conforming to the standard required f o r the degree o f Master o f S o c i a l Work  School o f S o c i a l Work 1966 The U n i v e r s i t y o f B r i t i s h Columbia  In presenting  t h i s thesis i n p a r t i a l fulfilment of the  requirements for an advanced degree at the University of B r i t i s h 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.  I t i s understood  that copying or publication of this 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 University of B r i t i s h Columbia, Vancouver 8, Canada.  Date  ^PC^Nr^  In p r e s e n t i n g  this thesis i n partial  f u l f i l m e n t of the  requirements f o r an advanced degree a t the U n i v e r s i t y of B r i t i s h Columbia,  I agree t h a t  f r e e l y a v a i l a b l e f o r reference  the L i b r a r y and study.  s h a l l make i t I further  agree t h a t p e r m i s s i o n f o r e x t e n s i v e copying of t h i s t h e s i s f o r s c h o l a r l y purposes may be granted by the Head o f my Department or by h i s r e p r e s e n t a t i v e s .  I t i s understood  that  copying or p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n c i a l  gain  s h a l l not be allowed without my w r i t t e n  School of S o c i a l Work The U n i v e r s i t y of B r i t i s h Columbia, Vancouver 8, Canada.  permission.  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 Appeals Act. 1937, c. 4, s. 1.  -  Shorttitle  2. The Court of Appeal of the Province of British A p p e l l a t e Columbia shall have jurisdiction to hear and determine mdivorce° appeals from an order, judgment or decree of a court of the { ^ " f " ' Province or a judge thereof having jurisdiction in divorce causes, and matrimonial causes. 1937, c. 4, s. 2.  n  4  E D M O N D C L O U T I E R , 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 O T T A W A . 1952  443  R.S., 1952.  C H A P T E R 176. A n Act respecting Marriage and Divorce. SHORT  TITLE.  1. This Act may be cited as the Marriage and Divorce Act. R.S., c. 127, s. 1.  short  title.  MARRIAGE.  2 . A marriage is not invalid merely because the woman is a sister of a deceased wife of the man, or a daughter of a sister or brother of a deceased wife of the man. 1932, c. 10, s. 1.  Certain " " h l v afl i*d .  3 . A marriage is not invalid merely because the man C e r t a i n is a brother of a deceased husband of the woman or a son ^Invalid, of a brother or sister of a deceased husband of the woman. 1932, c. 10, s. 1. DIVORCE.  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 guilty of adultery. R.S., c. 127, s. 4. a  u  e r j  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 commenced 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  Chap.  Marriage and Divorce.  176.  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 preserve  .  6. Nothing in sections 4 and 5 affects, restricts or takes y jght f j f existing before the 27th day of June, 1925. R.S., c. 127, s. 6.  a w a v a n  r  0  a n v w  e  E D M O N D C L O U T I E R , 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 O T T A W A , 1952  3734 R.S., 1952.  - iv -  ABSTRACT The present study i s undertaken to explore s o c i a l aspects of d i v o r c e 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 o f procedures, grounds, d o m i c i l e , and c h i l d r e n o f the marriage are examined as they would appear to have most s i g n i f i c a n c e f o r s o c i a l w e l f a r e . The study attempts to draw a t t e n t i o n to the r e l a t i o n s h i p between law and human r e 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 d i v o r c e l e g i s l a t i o n , i t s functions and d y s f u n c t i o n s , i n terms of the i d e a l whereby the law acts as an enabling device aimed a t problem-solving. Chapter I o f 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 o f 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 d i v o r c e 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 p r e s e n t l y 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 d i v o r c e 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 s o c i e t y i n terms o f a problem s o l v i n g approach. Chapter VI i n v o l v e s a survey o f expert o p i n i o n on matters p e r t a i n i n g to B r i t i s h Columbia d i v o r c e 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 d i v o r c e l e g i s l a t i o n o u t l i n e d i n preceding chapters based on l i b r a r y research. Chapter V I I i s a s h o r t survey o f comparative d i v o r c e l e g i s l a t i o n i n a v a r i e t y of o t h e r j u r i s d i c t i o n s . This survey i n d i c a t e s p o s s i b l e s o l u t i o n s to some o f the s o c i a l problems 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 i n v o l v e s l i b r a r y research w i t h the exception o f Chapter V I . A s m a l l sample o f experts i n a v a r i e t y o f f i e l d s i n t e r e s t e d i n the question o f d i v o r c e were interviewed. Experts i n c l u d e clergymen, p o l i t i c i a n s , lawyers, judges, s o c i a l workers, e t c . , The i n t e r v i e w s were s t r u c t u r e d by means of an i n t e r v i e w schedule. I n i t i a l e x p l o r a t i o n c a r r i e d out i n t h i s study i n d i c a t e s that the adversary nature j o f B r i t i s h Columbia d i v o r c e l e g i s l a t i o n w i t h i t s l i m i t e d grounds i s not conducive to problems o l v i n g and appears i n s t e a d to create new problems f o r those already s u f f e r i n g from damaged i n t e r p e r s o n a l r e l a t i o n s h i p s . A v a r i e t y o f 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 c l o s e l y defined and documented by reading and expert o p i n i o n . Some o f these s o c i a l problems i n v o l v e the f a c t that i n undefended d i v o r c e cases the true f a c t s are u n l i k e l y to emerge.  - V -  The adversary system prevents the p a r t i e s concerned from t a k i n g a mature look a t what caused the m a r i t a l breakdown. The law p e n a l i z e s those who attempt r e c o n c i l i a t i o n due to f a c t o r s i n v o l v e d i n condonation. C o l l u s i o n bars a l s o d i s c o u r a g e d i s c u s s i o n o f matters o f mutual concern o r s e r v e to keep such d i s c u s s i o n s e c r e t . I n some cases even though a l l p e r s o n a l and s o c i a l f u n c t i o n s o f marriage have ceased to e x i s t , the l e g a l t i e must be maintained because n e i t h e r p a r t n e r has committed adultery o r i s w i l l i n g to engaged i n f r a u d . I n o t h e r c a s e s , those who have grounds f o r d i v o r c e a r e unable to o b t a i n same because o f l e g a l c o s t s and d i f f i c u l t i e s i n e s t a b l i s h i n g d o m i c i l e o r t r a v e l l i n g to a c o u r t t h a t 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 o f proposed p l a n s f o r c h i l d r e n o f t h e marriage i s c a r r i e d out u n l e s s the custody i s c o n t e s t e d . I n g e n e r a l , B r i t i s h Columbia d i v o r c e l e g i s l a t i o n does n o t p r o v i d e f o r any i n v e s t i g a t i o n concerning what r e a l l y causes a marriage to f a i l . I t p r o v i d e s 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 p r o b l e m - s o l v i n g f o r o t h e r s who might become r e c o n c i l e d o r a t l e a s t d i v o r c e d w i t h a minimum o f secondary damage and w i t h a r e c o g n i t i o n o f r e s p o n s i b i l i t i e s involving children. D i v o r c e l e g i s l a t i o n i n o t h e r c o u n t r i e s i s suggested as o f f e r i n g p o s s i b l e s o l u t i o n s f o r many o f the problems i n h e r e n t i n o u r own law. L i t e r a t u r e from the U n i t e d S t a t e s o f America conc e r n i n g F a m i l y - o r M a t r i m o n i a l Courts i s seen i n t h i s study as the most f r u i t f u l . H o p e f u l l y then, the documentation o f s o c i a l problems a s s o c i a t e d with B r i t i s h Columbia d i v o r c e l e g i s l a t i o n and suggested s o l u t i o n s f o r change w i l l a i d o t h e r s i n f u t u r e r e s e a r c h o f a more s p e c i f i c n a t u r e .  TABLE OF CONTENTS Page Introduction . . . .  . . . . . . . .  I  Ancient Greece. Ancient Rome. E n g l i s h C i v i l , Common and Canon Law. The Sacramental View o f Marriage. The Reformation. Parliamentary Divorce. The Harwicke A c t . Divorce and M a t r i m o n i a l Causes A c t o f 1857, Canadian Adaptations. R e s u l t i n g Problems. . . . . . . . . . . . . .  2  Chapter I . An H i s t o r i c a l View o f Divorce  Chapter I I .  Divorce Procedure  Adversary Nature o f Proceedings. Statement o f Claim. Absolute Bars: Connivance, Condonation, C o l l u s i o n . Costs. The Hearing. . . . . . . . . . . . . . . . . . . . Chapter I I I .  Grounds f o r Divorce  R e l a t i o n s h i p o f Marriage and Divorce A c t s . D o c t r i n e o f the M a t r i m o n i a l Offence. D e s c r i p t i o n o f Grounds. Breakdown theory and Modem S o c i e t y . P r o t e c t i o n o f P u b l i c I n t e r e s t . Absolute Bars. D i s c r e t i o n a r y Bars. Evidence and Proof o f A d u l t e r y . Purpose and Function o f the Law Chapter IV.  54  C h i l d r e n o f the Marriage  Numbers A f f e c t e d . 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 A f f e c t i n g D e c i s i o n s . Parents R i g h t s . I n f o r mation A v a i l a b l e to the Judge. Studies o f C h i l d r e n from Broken Homes. Remarriage o f Parents and Common Law Relationships. . . . . . . . . . . . . . . . . . . . . . . Chapter V I .  38  Domicile  Rules f o r Determining Domicile. Wife has no Independent Domicile. Domicile Not Merely a M a t t e r of B r i t h o r Residence. A p p l i c a t i o n to Modern S o c i e t y . . . . . . . . . Chapter V.  22  62  Expert Opinion  Method. General Questions. Grounds. Procedures. F i n a n c i a l Costs o f Divorce Proceedings. Domicile. C h i l d r e n and Custody. M o r a l i t y , the Church and Divorce. Conclusions and Comments • • • • • • • 79  - iii Page Chapter V I I .  Comparative L e g i s l a t i o n w i t h a View to Reform  Recent E n g l i s h 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. F a u l t . Family-Courts. . . . . . . 113 Chapter V I I I .  Conclusion  A Family Court: I m p l i c a t i o n s f o r B r i t i s h Columbia. L e g a l A i d . Domicile. Consideration o f C h i l d r e n . Grounds and Procedures . . . . . . . . . . . . . . . . . 141 Appendices: I.  B. C. Rules A p p l i c a b l e to Divorce and Matrimonial Causes  147  II.  Divorce and M a t r i m o n i a l Causes A c t . Ghapter 118.  148  III.  Equal Guardianship o f Infants A c t . Chapter 130, Sections 12 and 13. Bibliography  149 150  IV.  vi -  ACKNOWLEDGEMENTS  We wish to express our thanks and appreciation to those whose assistance and support made this thesis possible. We p a r t i c u l a r l y acknowledge with thanks the encouragement and help o f Mr. J . MacDonald and Dr. J . Crane, both o f the School o f S o c i a l Work, University of B r i t i s h Columbia. We also wish to acknowledge the contributions of those interviewed f o r expert opinion: Mr. John Stanton, Miss Norma C h r i s t i e , lawyers; Dr. Ken Davies and Dr. J . R. Wilson, p s y c h i a t r i s t s ; Mr. Jim Karpoff and Mr. Derek Thompson, s o c i a l workers; Father Roberts, p r i e s t ; Rev. J . M, Taylor, minister; Mrs* Barbara Watts of the Canadian Law Reform Movement; and f i v e 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 o f 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 o f the s o c i a l problems a r i s i n g out o f human r e l a t i o n s o f which d i v o r c e i s one o f the most f a r reaching.  One a l s o , however,  becomes aware that to examine a l l aspects o f the d i v o r c e s i t u a t i o n with i t s many l e g a l and s o c i a l i m p l i c a t i o n s i s a task.  formidable  Hence, i n t h i s study we are attempting to view four major  areas o f d i v o r c e :  procedure, grounds, d o m i c i l e and the custody  and maintenance o f c h i l d r e n . We w i l l take i n t o c o n s i d e r a t i o n t h a t a t t i t u d e s toward marriage and d i v o r c e are conditioned by the past and e s p e c i a l l y by the forces o f r e l i g i o n .  As a r e s u l t ,  the major areas o u t l i n e d above w i l l be seen i n the l i g h t o f h i s t o r y as w e l l as w i t h i n 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 w i t h i n which they now e x i s t .  I t i s hoped t h a t an examination o f the l i t e r a t u r e  i n these areas and a survey of expert o p i n i o n on the subject w i l l help us c l a r i f y s o c i a l problems that p r e s e n t l y e x i s t .  I t i s not  u n t i l these areas are defined t h a t reforms can reasonably  be  suggested f o r t h e i r s o l u t i o n and/or f u t u r e e x p l o r a t i o n o f 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 o f marriage o f which the law o f d i v o r c e 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 l o o k i n g a t these sources i t i s most important to consider the undeniable e f f e c t which the law has on human behaviour and c o n d i t i o n s .  "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 w e l l as  v i c e versa."^  Hence, the law becomes an important s o c i a l f a c t o r .  In an h i s t o r i c a l view o f d i v o r c e , the i n t e r p l a y between s o c i a l conditions and a t t i t u d e s , and the law become r e a d i l y apparent e s p e c i a l l y as i t i s p o s s i b l e to view the whole from a r e l a t i v e l y o b j e c t i v e o u t s i d e r ' s viewpoint. I t w i l l then be the o b j e c t i v e of t h i s s e c t i o n o f the paper to i l l u s t r a t e the development o f a t t i t u d e s and conditions surrounding d i v o r c e and to attempt to show how these a t t i t u d e s , customs and laws have p e r s i s t e d to the  present day, sometimes causing s o c i a l problems when i n times  past they performed a u s e f u l o r acceptable f u n c t i o n .  Ian F. G. Baxter, "The Law o f Domestic R e l a t i o n s , " The Canadian Bar A s s o c i a t i o n , v o l . 36 (September, 1958), p. 299.  I n the p a t r i a r c h a l s o c i e t y o f ancient Greece, women had few r i g h t s and very few i n regard to d i v o r c e .  As i n most  ancient s o c i a l systems, women held a p o s i t i o n o f subordinance to t h e i r mate.  Marriage was a union mainly f o r the p r o c r e a t i o n  o f c h i l d r e n and as a r e s u l t , the sexual f u n c t i o n was o f prime importance.  Thus, grounds f o r d i v o r c e were r e l a t e d to the  f u n c t i o n o f marriage and d i v o r c e was accepted s o c i a l l y when the woman whose business i t was to bear c h i l d r e n was e i t h e r barren o r adulterous.  Since the husband had f a r more r i g h t s than the  w i f e and h i s sexual behaviour was o f l e s s importance to the marriage, women were unable to get a d i v o r c e through some misdeed o f the husband.  Furthermore, d i v o r c e d i d not have l e g a l  connotations as i t does today.  I n Greece i t was mainly a  p r i v a t e f a m i l y a f f a i r and the granting o f d i v o r c e was not under the j u r i s d i c t i o n o f the s t a t e except i n the case o f the wife's adultery. I n ancient Rome (753-202 B.C.), the status o f women and the place o f d i v o r c e were not u n l i k e that o f Greece.  By c i v i l  law the w i f e 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 .  A t no time d i d  the Roman w i f e have property i n the c h i l d r e n o f her marriage. I t i s i n t h i s s i t u a t i o n that the remarks o f Blackstone are rooted:  By marriage, the husband and wife are one person i n law; that i s , the very being o r l e g a l existence o f the woman i s suspended during the marriage, o r a t l e a s t i s incorporated o r consolidated i n t o that o f her husband, under whose wing, p r o t e c t i o n and cover she performs everything.2 This l e g a l u n i t y which began i n the s o c i a l customs o f Greece and Rome p e r s i s t e d u n t i l the 19th century i n England and s t i l l e x i s t s today i n the form o f d o m i c i l e laws whereby a married woman has no separate d o m i c i l e from her husband despite the f a c t they may be j u d i c i a l l y separated o r she may have been deserted and knows not of h i s 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 s t a t e was not involved i n marriage and d i v o r c e .  As d i v o r c e became more frequent,  however, the Romans l e g i s l a t e d e f f e c t s on property r i g h t s and a body o f 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 s o c i e t y l a y e x c l u s i v e l y w i t h 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 h i s w i f e and c h i l d r e n .  The grounds f o r  d i v o r c e acceptable to s o c i e t y were a d u l t e r y , preparing o f poisons, and f a l s i f i c a t i o n o f keys, and although d i v o r c e was l e g a l l y u n r e s t r i c t e d , s o c i a l c o n t r o l s were s u f f i c i e n t to l i m i t b l a t a n t abuses o f accepted p a t t e r n s .  H. C l a r k e , S o c i a l L e g i s l a t i o n . New York, Appleton-CenturyC r o f t s , 1957, p. 64.  - 5 Thus up to and i n c l u d i n g the advent o f 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 r a t h e r than a l e g a l one and t h i s r e s u l t e d i n the b e l i e f which i s s t i l l h e l d by some people today that: the duties which are incumbant upon marriage partners have t h e i r guarantee and s a n c t i o n i n the moral o r r e l i g i o u s conscience o f the p a r t i e s i n e s t a b l i s h e d t r a d i t i o n s and i n s o c i a l conventions. Only i n marg i n a l s i t u a t i o n s does the law step i n to supplement the sanctions of the mores and to c l a r i f y d o u b t f u l situations.3 The c i v i l law of Rome during the period o f e a r l y C h r i s t i a n i t y was s t i l l not deeply involved i n d i v o r c e 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 p a r t i e s are not l i v i n g together the marriage cannot be s a i d 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 o n l y r i g h t when that a f f e c t i o n no longer e x i s t s that they should be d i s s o l v e d by mutual consent.  The nature o f marriage and the a v a i l a b i l i t y and grounds f o r d i v o r c e then coincided.  No p a r t i c u l a r form o f marriage was r e -  quired by c i v i l law and mutual consent was adequate reason f o r divorce.  Hence, the idea o f mutual consent r a t h e r than a system  R h e i n s t e i n , "Trends i n Marriage and Divorce Law o f Western Countries," Law and Contemporary S o c i a l Problems, ed. R. Kramer, Winter, 1953, p. 7.  of f a u l t on the part o f one and innocence on the part of the other evolved here and continues  to be discussed today i n  legal circles. In England a t r a d i t i o n of common law and also the adaptation of Roman c i v i l law took place. Roman marriage laws were well s e t t l e d .  By t h i s time (527-565 A.D.) 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 r e l i g i o u s i n nature and a function o f the clergy.  Mar-  riage was uniformly contracted and received by the Church. Although during Saxon times divorce was f r e e l y allowed and from 668-698 A.D. the Archbishop o f Canterbury allowed divorce on the grounds o f desertion, adultery, impotence, r e l a t i o n s h i p , long absence and c a p t i v i t y , r e l i g i o n was beginning fluence i n a new d i r e c t i o n .  to exert an i n -  The power o f the emperors i n I t a l y  was d e c l i n i n g and a succession o f strong Popes made e f f e c t i v e use of the p r e v a i l i n g anarchy by consolidating t h e i r power.  Their  decisions became Canon law and i t spread as C h r i s t i a n i t y r a p i d l y spread and bishops gained huge areas of land and acquired power. These bishops administered  law i n t h e i r l o c a l courts.  They  became more and more powerful and as they defined more areas as being of s p i r i t u a l s i g n i f i c a n c e t h e i r influence grew. courts accepted  Royal  them and enforced e c c l e s i a s t i c a l sentences.  In  - 7 800 A.D. Charlemagne was crowned by the Pope and became the f i r s t temporal l e a d e r to proclaim marriage as i n d i s s o l u b l e and d i v p r c e criminal.  Hence, a new e r a i n the h i s t o r y o f d i v o r c e began des-  p i t e the f a c t that not u n t i l 1164, was there a c l e a r formulation of  the now seven sacraments, marriage being the l a s t to be  accepted. The concept o f marriage being a sacrament i s one that remains w i t h us today d e s p i t e the f a c t t h a t marriage i s a l s o considered a c i v i l contract.  Canon lawyers were the f i r s t to  proclaim the sacramental i m p l i c a t i o n s o f marriage when they said that marriage represented a union between C h r i s t and Church according to the analogy o f S t . P a u l .  Marriage was a s t a t e not  a c o n t r a c t ; a permanent r e l a t i o n s h i p t h a t could not be destroyed by man. So high a view o f marriage was held by the Church that a n o n - C h r i s t i a n ceremony o r a purely l e g a l one was, and s t i l l i s , regarded as e q u a l l y v a l i d upon the p a r t i e s 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 o f marriage and d i v o r c e the sacramental view had f a r - r e a c h i n g i m p l i c a t i o n s . The b e l i e f that marriage i s an i n d e l i b l e sacrament s t a r t e d when the Canon lawyers attempted to t r a n s l a t e parables and  R. S. W. P o l l a r d , The Problem o f Divorce. London, C. A. Watts and Co., 1958, p. 457"  - 8 analogies o f the B i b l e i n t o p o s i t i v e law.  I n the Gospel accor-  ding to S t . Mark, Chapt. X, v.6-12, Jesus i s s a i d to p r o h i b i t divorce.  Unfortunately, the gospels are not c o n s i s t e n t and " i n  Mathew V, v.32 and Mathew V I , v.9, Jesus i s s a i d to q u a l i f y h i s p r o h i b i t i o n s o f d i v o r c e i n the case o f f o r 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 ' f o r God never dies'.""'  I t i s the general o p i n i o n o f 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 e a r l y i n the h i s t o r y o f the C h r i s t i a n church. t h i s q u a l i f i c a t i o n was added.  There are two opinions why  One group says i t i s because the  Jews to whom Jesus was t a l k i n g believed a d u l t e r y o r f o r n i c a t i o n meant a u t o m a t i c a l l y a marriage was d i s s o l v e d .  The other group  b e l i e v e s that the e a r l y Church recognized some form o f d i v o r c e was needed and added the q u a l i f i c a t i o n b e l i e v i n g i t was not i n c o n s i s t e n t w i t h 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 o r a d u l t e r y d i f f e r s today w i t h i n d i f f e r e n t r e l i gious groups.  Some b e l i e v e 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 f e e l i n g s associated i n modem s o c i e t y with divorce  reform.  S. B. K i t c h i n , A H i s t o r y o f Divorce. London, Chapman and H a l l L i m i t e d , 1912, p. 64.  - 9The Canon lawyers, i t appears, concluded that the s c r i p t u r e s 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 r e c e i v e His d o c t r i n e s and suggests that human needs must be taken i n t o c o n s i d e r a t i o n .  This was i n t e r p r e t e d by the Church  to mean that a j u d i c i a l separation was p e r m i s s i b l e .  Hence,  j u d i c i a l separation was granted on grounds o f a d u l t e r y ( e i t h e r p h y s i c a l o r " s p i r i t u a l " - " s p i r i t u a l a d u l t e r y " meaning one o f the marriage partners l e a v i n g the Roman C a t h o l i c f a i t h o r prev e n t i n g the other partner from p r a c t i c i n g i t ) , o r i f one partner wished to take r e l i g i o u s vows.  Remarriage on the p a r t o f e i t h e r  partner was not permitted due to the sacramental nature o f marriage.  The concept o f 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." L a t e r , when the Church had more power the grounds f o r d i v o r c e grew.  By the 10th century two types o f " d i v o r c e " e x i s t e d :  annulment and separation.  The grounds were then extended to  i n c l u d e c r u e l t y and d e s e r t i o n .  By the 12th century the church  M. R h e i n s t e i n , "Trends i n Marriage and Divorce Law o f 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 d i v o r c e and t h e i r courts were administered by Canon law.  Common law courts were i n v o l v e d i n  so f a r as they determined property r i g h t s and thus f r e q u e n t l y had to determine i f there had been a marriage o r not.  I t was  here the defences o f c o l l u s i o n , connivance and condonation developed as i t was an e s t a b l i s h e d p r i n c i p l e t h a t one had to come to court "with clean hands".  These absolute defences a r e  incorporated i n t o o u r present laws w h i l e the d i s c r e t i o n a r y bars of a d u l t e r y on the p a r t o f the p l a i n t i f f , delay, c r u e l t y , d e s e r t i o n and conduct conducing developed as an o f f s h o o t o f the great d i s c r e t i o n a r y 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 o f "the  astounding movement i n the t h i r t e e n t h century by which the church remodeled a l l the i d e a l s and i n s t i t u t i o n s o f the age and i n t e grated a l l s o c i a l i n t e r e s t s i n t o a system o f which i t made i t s e l f the center and c o n t r o l l i n g a u t h o r i t y . " ^ Marriage o u t s i d e the Church had been r e f e r r e d 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 t h a t a restrictions  v a l i d marriage e x i s t e d but that e c c l e s i a s t i c a l / w e r e 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 p a r t i e s s i n c e the church had not blessed the union. the C o u n c i l o f Trent maintained  I n 1563  a l l marriages were " v o i d 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 c e l e brated i n the presence o f witnesses and a r e p r e s e n t a t i v e o f the g Church."  They thus denied j u r i s d i c t i o n o f the common law courts  and although t h i s was not made law, i t l e d 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 p o s s i b l e f o r any man (but not woman) to secure a "divorce" i f he could spare the money f o r the cost o f a dispensation.  "Divorce which could only be obtained  through crime and d i s g r a c e , was treated as i t s e l f c r i m i n a l and disgraceful  i n a l l cases, and t h i s t r a d i t i o n i s s t i l l  firmly 9  embedded i n law and c e r t a i n sectors o f p u b l i c o p i n i o n . "  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 r e g u l a t i o n o f marriage was i n  effect. The period o f the Reformation grew i n response to the corrupt power o f 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 o f 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. C l a r k e , 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 H i s t o r y o f Divorce. London, Chapman and H a l l L t d . , 1912, p. 123. ^ H . I . C l a r k e , p. 51. "•S.B. K i t c h i n .  - 12 e f f e c t o f the Reformation upon the Canon law was very s l i g h t : Dogma succeeded dogma and the d i v i n e r i g h t o f Kings under the i n f l u e n c e o f the Reformed m i n i s t e r s was s u b s t i t u t e d f o r that o f the Pope. A l l that the Reformation achieved was, by s p l i t t i n g up the power o f the Churches and making r e l i g i o u s t o l e r a t i o n p o s s i b l e a t a f u t u r e time, g r a d u a l l y to s e c u l a r i z e marriage and divorce.12 Luther i n p a r t i c u l a r was r e s p o n s i b l e f o r abandoning the concept that marriage i s a sacrament and i n so doing paved the way t o t r a n s f e r 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 d i v o r c e i n t h i s era was the impetus that l e d to England's r e v o l t from the Roman C a t h o l i c church.  Henry was unable to get a d i v o r c e 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.  S h o r t l y 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 o f the c l e r g y t o the K i n g .  Henry  t r i e d to press f o r o t h e r 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 o f E c c l e s i a s t i c a l Laws" to extend the grounds for  d i v o r c e to i n c l u d e a d u l t e r y , d e s e r t i o n , c r u e l t y , absence,  and deadly hatred between spouses.  S.B. K i t c h i n , p. 122.  I n accordance w i t h the f a u l t  - 13 theory the innocent party would be f r e e to remarry w h i l e the g u i l t y party would be subject to p e n a l t i e s .  These reforms d i d  not become law and a s t a t e o f chaos i n d i v o r c e l e g i s l a t i o n continued f o r some time. The s t r u g g l e between i d e o l o g i e s propounding the sacramental versus c o n t r a c t u a l 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 t h a t they were purely temporal matters.  During the p r o t e c t o r s h i p of O l i v e r Cromwell,  the d o c t r i n e s o f the Reformation were p a r t l y incorporated i n t o l e g i s l a t i o n with the passage of the C i v i l Marriage A c t of which made a c i v i l marriage ceremony o b l i g a t o r y f o r a l l .  1653 However,  i n 1661 King Charles was r e s t o r e d , the A c t repealed and not r e 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 o b t a i n a decree o f 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 c o u r t s , a judgment f o r damages from the Common Law courts and "then armed w i t h 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 p r a c t i c e , t h i s arrangement was not open to women  H. L. Cartwright, The Law o f Divorce i n Canada. Toronto, Canadian Law-Listing Publishing-Co., 1945, p. 6.  - 14 nor to the poor f o r i t was most expensive.  Interestingly, this  i n s t i t u t i o n of executive divorce by the sovereign became the basis f o r that p r a c t i c e of d i v o r c e by the l e g i s l a t u r e which s t i l l survives i n Canada f o r the Provinces o f Quebec and Newfoundland. Gradually, l e g i s l a t i o n i n England was i n s p i r e d by the philosophy of enlightenment and i n d i v i d u a l i s m "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 i n a l i e n a b l e r i g h t of i n d i v i d u a l s to the p u r s u i t 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 d i s s o l v e d .  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 o f the contract theory. I t s t a t e s i n p a r t : that a l l marriages except those of Quakers, Jews and members of the r o y a l f a m i l y were to be solemnized only a f t e r p u b l i c a t i o n of banns on the securing of a l i c e n s e and a ceremony performed i n an A n g l i c a n church by Anglican c l e r g y i n the presence of two o r more witnesses.15 And i n 1836 a b i l l p e r m i t t i n g c i v i l marriage f o r those u n w i l l i n g to accept e s t a b l i s h e d r i t e s eliminated the Anglican bias of the first bill.  Together these acts c o n s t i t u t e our present laws on  marriage and exemplify the p r i n c i p l e of formal, p u b l i c marriage  M. R h e i n s t e i n , p.  12.  *H. I . C l a r k e , p. 57.  - 15 contracts. I n 1857, the E n g l i s h Divorce and M a t r i m o n i a l Causes A c t was passed and s i n c e B r i t i s h Columbia adopted the law o f England as of November 19th, 1858, f u r t h e r 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 o f 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 t r a n s f e r r e d  d i v o r c e 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  Civil  court - "The Court f o r Divorce and M a t r i m o n i a l Causes."  This  court could grant d i v o r c e f o r the husband i f h i s wife was  guilty  of a d u l t e r y a f t e r marriage and f o r the w i f e upon proving a d u l t e r y a f t e r marriage coupled w i t h c e r t a i n other s p e c i f i e d matrimonial offences on the p a r t of her husband.  I t provided f o r remarriage  o f e i t h e r p a r t y a f t e r a d i v o r c e although there would be no comp u l s i o n on churches to perform a second marriage.  Furthermore,  p r o v i s i o n was made f o r j u d i c i a l separations on grounds o f a d u l t e r y , c r u e l t y , o r two years' d e s e r t i o n .  In 1925, the Can-  adian Parliament enacted the Marriage and Divorce Act which provided t h a t a d u l t e r y alone was a s u f f i c i e n t ground f o r a wife to be granted d i v o r c e .  The w i f e could sue on the o l d e c c l e s i -  a s t i c a l grounds o f 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 l e d to a curious r e s u l t s when the law was adopted by B r i t i s h Columbia. P r o v i s i o n was made i n the Act f o r an appeal from these three judges  - 16 to the House o f Lords.  However, i n B r i t i s h Columbia the powers  afforded the three judges were granted to a s i n g l e judge and no p r o v i s i o n was made f o r an appeal.  Since an appeal cannot e x i s t  apart from express enactment i t was h e l d p r i o r to 1937 that there was no appeal. 17  16  I n 1937 an Act was passed g i v i n g the  r i g h t o f appeal. The Divorce and Matrimonial Causes Act o f 1857 continued the absolute bars o f c o l l u s i o n , connivance and condonation, derived from p r i n c i p l e s o f the e a r l y Common Law c o u r t s .  Also  included were d i s c r e t i o n a r y bars such as a d u l t e r y on the p a r t o f 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 , c r u e l t y o f the p e t i t i o n e r towards the other p a r t y t o the marriage, d e s e r t i o n p r i o r to the a d u l t e r y , and w i l f u l neglect o r misconduct as conduced to a d u l t e r y .  The broad d i s c r e t i o n o f the c o u r t ,  derived from the powerful E c c l e s i a s t i c a l c o u r t s , has r e s u l t e d i n changes i n j u d i c i a l a t t i t u d e s during the present century to take i n t o account the welfare o f both p a r t i e s , o f t h i r d p a r t i e s , and 18 of s o c i e t y as a whole. The Act o f 1857 a l s o gave power to the court to make orders as to the custody o f c h i l d r e n "as i t may deem j u s t and 16  Brown v s . Brown (1909), 14 B.C.R. 142  17 Statutes o f Canada. 1937, C. 4. Howe v s . Howe, 1937, O.R. 57 and B l u n t vs. B l u n t , 1943, 2 A l l E.R. 76. 18  - 17 proper".  19  There i s , however, no o b l i g a t i o n on the p a r t o f the  court to make such orders.  We would wonder what e f f e c t such  vague l e g i s l a t i o n has on the welfare o f c h i l d r e n . When the 1857 law was adopted by B r i t i s h Columbia i t was subject to any r e l e v a n t m o d i f i c a t i o n s made by the Dominion Parliament o r P r o v i n c i a l L e g i s l a t u r e s w i t h i n t h e i r r e s p e c t i v e jurisdictions.  P r a c t i c a l l y the only m o d i f i c a t i o n , according to  20 Cartwright,  i s the Dominion A c t o f 1925 a l l o w i n g marriage w i t h  a deceased wife's s i s t e r o r a deceased husband's brother and a b o l i s h i n g the double standard i n respect o f matrimonial offences. By the B.N.A. A c t (Sections 91-92), the s u b j e c t o f "Marriage and Divorce" i s w i t h i n the purview o f the Parliament o f Canada; t h a t o f the "Solemnization o f Marriage" i n the province i s w i t h i n the purview o f 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 d i d not pass a general Divorce A c t , the laws which were i n f o r c e i n the various provinces a t the time they entered Confederation have been allowed to remain w i t h the r e s u l t that each province i s somewhat l i k e a separate country i n respect to d i v o r c e l e g i s l a t i o n . t i o n here i s Ontario.  An excep-  I n the view o f some, " i t i s preposterous  See Appendix I . H . L. Cartwright, The Law o f Divorce i n Canada. Toronto, Canadian Law L i s t i n g P u b l i s h i n g Co., 1945. 20  - 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 a t the l e v e l reached by England i n 1857 e s p e c i a l l y i n view o f the f a c t t h a t the reform then achieved was seen by men o f v i s i o n to 21 be w o e f u l l y inadequate." I n the chapters to f o l l o w , 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 w i t h i n the areas o f procedure, grounds, d o m i c i l e , and c h i l d r e n o f the marriage.  Summarizing the h i s t o r i c a l view o f d i v o r c e l e g i s l a t i o n  can, we b e l i e v e , p o i n t o u t broad areas where one might expect to meet w i t h problems. F i r s t , we would suggest t h a t the continued u t i l i z a t i o n o f a law made i n 1857 f o 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 t h a t the s o c i a l r e a l i t y f o r which i t was adopted no longer p e r t a i n s . J . P. Lichtenberger notes i n r e l a t i o n to the i n f l u e n c e o f r e l i g i o u s b e l i e f on the Act that: throughout the e n t i r e course o f h i s t o r y r e l i g i o n has been one o f the strong and determining f a c t o r s i n human conduct. B e l i e f s which have obtained the reinforcement o f r e l i g i o u s sanction have exerted a c o n t r o l l i n g i n f l u e n c e i n i n d i v i d u a l a c t i o n , and s o c i a l customs, which have been invested w i t h 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 G e n e r a l l y , r e l i g i o n has been a strong conservative f o r c e and c e r t a i n l y was i n 1857 when the A c t i n question was passed. However, i n recent times the r e s t r a i n t s o f r e l i g i o u s i n fluence have been somewhat modified.  The Age o f Reason has  replaced the Age o f Dogma, d i v o r c e r a t e s have clim^d due to the nature o f 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, a r e 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 o f a c q u i r i n g a d o m i c i l e independent from that o f h e r 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 c h a t t e l s .  And when t h i s p r i n c i p l e i s a p p l i e d to a s o c i a l  system where high rates o f m o b i l i t y a r e accepted, the law i s not o n l y 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 o f the problems created by t r a n s p l a n t i n g laws i n t o 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 modif i e d i s that e t h i c a l concepts are being r e v i s e d .  When the A c t  o f 1857 was passed the impact o f 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 b e l i e v e that marriage was made f o r man and not man f o r marriage.  The moral value o f marriage i s seen as con-  s i s t i n g i n the mutual happiness secured by those who enter i n t o i t and, i n general, there a r e higher expectations o f 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 psychol o g i c a l l e a r n i n g that are leading people to the b e l i e f that human r e l a t i o n s h i p s i n v o l v e p a r t i c i p a t i o n and  responsibility  on the part of both p a r t i e s i n v o l v e d , 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 i n t o 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  acceptable  to l a r g e groups o f people and does not stand up to  c r i t i c a l scrutiny.  longer  Nonetheless, "the p r o f e s s i o n a l j u d i c i a r y  c l i n g r e s o l u t e l y to the idea o f d i v o r c e as n e c e s s a r i l y i n v o l v i n g 23 a t r i a b l e i s s u e of r i g h t and wrong, o f g u i l t and innocence." This p r i n c i p l e seems h i g h l y incompatible w i t h that of j o i n t r e s p o n s i b i l i t y f o r m a r i t a l breakdown and the grounds of a d u l t e r y are now seen by many as the symptom not cause o f a breakdown i n relationship. I f , then, on the one hand we have l a r g e groups o f people i n v o l v e d i n a s o c i a l r e a l i t y which i n v o l v e s the breakdown of L. N. Brown, " E n g l i s h Family Law Since the Royal Commission," U n i v e r s i t y o f Toronto Law Review, v o l . 14, 1961, p. 64.  - 21 marriages from which the p a r t i e s f e e l j u s t i f i e d i n escaping, y e t , on the o t h e r hand they are governed by an adversary system of law w i t h very l i m i t e d grounds f o r securing d i v o r c e , one would expect to f i n d a discrepancy between the s t r i c t laws and a c t u a l p r a c t i c e as r e f l e c t e d i n more o r l e s s g e n e r a l l y indulged i n collusive 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 b r i n g i n g out the true f a c t s and i n s i s t i n g on the best l e g a l c o n s t r u c t i o n o f these f a c t s .  Where t h i s does not  hold t r u e , as i n the case o f undefended d i v o r c e a c t i o n s , the r a t i o n a l e f o r the adversary system i s undermined w i t h a f u r t h e r l e s s e n i n g o f respect f o r the laws i n question. I n the f o l l o w i n g chapters a more thorough examination i n the areas o f procedures, grounds, d o m i c i l e , and c h i l d r e n o f 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 d i v o r c e l e g i s l a t i o n and p r a c t i c e s 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 p o i n t up and d e f i n e 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  p o i n t o f view h o p e f u l l y 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 , o f 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 o f 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 b e t t e r p o s i t i o n to say whether such reasons a r e o b s o l e t e o r 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 M a t r i m o n i a l Causes Act*" i s the s u b s t a n t i v e l e g i s l a t i o n t h a t determines the e l i g i b i l i t y o f a person to i n s t i t u t e a d i v o r c e a c t i o n .  Order 60 o f  the B r i t i s h Columbia Supreme Court Rules a p p l i c a b l e to Divorce 2 and Matrimonial Causes  l a y s down the steps t h a t must be gone  through to o b t a i n the d i v o r c e .  Copies o f both have been  attached as Appendix I and Appendix I I r e s p e c t i v e l y . Adversary Nature o f Proceeding I t w i l l be noted t h a t i n the d i v o r c e r u l e s , s e c t i o n 2 c l e a r l y s t a t e s the adversary nature o f the proceeding.  Action  i s s t a r t e d by a w r i t o f summons covering an intended a c t i o n 3 between a " p l a i n t i f f "  and a "defendant".  S e c t i o n 4(a) o f the  r u l e s f u r t h e r enlarges on the f a u l t theory o f the proceeding by s t a t i n g that every party w i t h whom a d u l t e r y i s a l l e g e d must be The Divorce and M a t r i m o n i a l Causes A c t . R.S.B.C., I960, ch. 118. 2 Order 60 o f the B r i t i s h Columbia Supreme Court Rules a p p l i c a b l e 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 a d u l t e r e r i s unknown,  the judge may a l l o w the i s s u i n g o f 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 a d u l t e r e r and may s p e c i f y 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 h i s w r i t i f such person i s found. Besides being an adversary proceeding, d i v o r c e i s a c i v i l 6 a c t i o n i n Canada.  This means that the defendant i s not o b l i g e d  to attend the hearing o r to defend the a c t i o n .  The judge i s  bound to decide the case w i t h i n the t r a d i t i o n a l framework o f evidence presented and heard.  The contents o f the statement o f  c l a i m d e f i n e the l i m i t s o f the issues to be d e a l t w i t h .  Besides  the p o i n t s covered, the judge has no o b l i g a t i o n to ask o t h e r questions around the breakup o f the marriage.  I n cases where  d i s c r e t i o n i s asked by reason o f the p l a i n t i f f ' s a d u l t e r y , the judge may d i r e c t some questions to the p l a i n t i f f but t h i s i s a r a r e occurrence.  As the v a s t m a j o r i t y o f d i v o r c e 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 s t o r y has a good chance o f being accepted without being challenged. Although most judges and lawyers a r e w e l l aware t h a t a marriage breaks down u s u a l l y because o f the i n t e r a c t i o n o f two people, r a t h e r than the f a u l t o f one, the system o f hearing d i v o r c e cases negates t h i s f a c t .  Wives o r husbands wishing to  f r e e themselves of a marriage grown burdensome, may present to the courts a p i c t u r e o f t h e i r own p u r i t y and t h e i r spouses' v e n a l i t y and no attempt i s made to h e l p both p a r t i e s  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 m a r i t a l breakdown. Although the " f a u l t " system o f t r i a l i s c a r e f u l l y s e t up to prevent " d i v o r c e by mutual consent", i t s p r a c t i c a l  application  i n undefended cases makes " d i v o r c e by mutual consent" v e r y likely.  The present laws encourage o n l y purported compliance  w i t h them.  7  The r e s t r i c t i v e nature o f the law i s f u r t h e r 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 p r e s e r v i n g i t s s a n c t i t y .  However, as one expert has g  s a i d , d i v o r c e 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 p a r t i e s o r the community to take a mature look a t what has caused the breakdown. 7  J . D. Payne, p. 27.  8  I b i d . , p. 28.  - 25 Statement o f Claim The r u l e s , a f t e r having e s t a b l i s h e d the adversarynature o f the proceedings, s e t out the items that must be  9 contained i n the statement o f c l a i m .  I t i s on t h i s statement,  together w i t h any statement o f defense, that might be submitted, that the t r i a l i s based. The statement o f c l a i m , among other t h i n g s , sets f o r t h the date and the p l a c e o f the marriage, the d o m i c i l e o f the husband, the names o f the c h i l d r e n o f the marriage, and o t h e r proceedings i n s t i t u t e d w i t h respect to t h i s marriage.  The  matrimonial o f f e n s e must be stated and co-defendant named.  If  the p l a i n t i f f wishes to c l a i m custody o f the c h i l d r e n , alimony, o r maintenance, the f a c t s on which such claims are based must be s e t f o r t h .  Any s e p a r a t i o n agreement o r f i n a n c i a l  between the couple must be s p e c i f i e d .  arrangements  The statement o f c l a i m  ends w i t h a paragraph requesting d i s s o l u t i o n o f the marriage, together w i t h any other r e l i e f claimed such as: c l a i m f o r custody of the c h i l d r e n ; claim f o r i n t e r i m alimony o r maintenance; o r permanent alimony o r maintenance; c l a i m f o r damages o r c o s t s ; and any request that the court e x e r c i s e i t s d i s c r e t i o n f o r the plaintiff. The Divorce Rules. Rule 11(1) and ( 2 ) .  - 26 The statement o f c l a i m 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 t r u t h o f the f a c t s a l l e g e d . The p l a i n t i f f also s t a t e s i n h i s o r her a f f i d a v i t that no c o l l u s i o n o r connivance has occurred.  I n the event that the  p l a i n t i f f has commited a d u l t e r y , grounds on which the d i s c r e t i o n o f 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 i n s p e c t i o n and the  i n s p e c t i o n o f the Attorney-General, but no one e l s e unless the judge so orders.*"^ The statement o f claim must be d e l i v e r e d to the defendant p e r s o n a l l y and any amendments must a l s o be delivered.*"*'  The  12 defendant may f i l e a counterclaim.  The form o f the t r i a l , 13 u s u a l l y by one judge, i s s e t down i n r u l e s 18-21. Rules 22-25 permit the Attorney-General to i n t e r v e n e a t any stage o f the 14 proceedings to show fraud o r c o l l u s i o n . Rules 26-28 p e r t a i n 15 to mentally i l l and i n f a n t p a r t i e s . Rules 29-30 d e a l w i t h the 16 recovery o f the wife's c o s t s . and maintenance.*"  Rules 32-35 d e a l w i t h alimony  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 d i v o r c e are the absolute bars of connivance, and c o l l u s i o n .  condonation  I f the judge suspects any of these, he i s bound  to i n v e s t i g a t e and to dismiss the s u i t i f h i s s u s p i c i o n proves correct.  Let us examine each of these absolute bars s e p a r a t e l y .  Connivance Connivance occurs when the a d u l t e r y o f one spouse i s caused by o r knowingly, w i l f u l l y o r r e c k l e s s l y permitted by the 18  o t h e r spouse as an assessory. To c o n s t i t u t e connivance, the a c t i o n must precede the a d u l t e r y and the p l a i n t i f f ' s s t a t e o f mind must be one o f "corrupt i n t e n t " i n promoting o r encouraging 19 the a d u l t e r y . The case o f Hechter v s . Hechter and Cohen, although a Manitoba case, i l l u s t r a t e s the courts current p o s i t i o n on connivance.  I t elaborates on the foregoing d e f i n i t i o n by h o l d i n g  t h a t a spouse can watch her partner and even l a y a trap to catch the partner i n the a c t of a d u l t e r y provided she has  reasonable  grounds f o r suspecting the spouse of i n f i d e l i t y and that she 17  T h e Divorce Rules. Rules 32-35.  18 J . D. Payne, p. 65, 19  H e c h t e r v s . Hechter and Cohen, (1958) 12 D.L.R. (2d)  326.  - 28 does not d e s i r e the a d u l t e r y to occur.  20  I t i s i n t e r e s t i n g to speculate on the r e s u l t s where a j u d i c i a l f i n d i n g o f connivance i s made.  I n these cases, one  spouse has d e s i r e d the other to commit a d u l t e r y and placed the opportunity i n h i s path.  The tempted spouse acquieses and  d i v o r c e proceedings a r e commenced on the evidence so obtained. I f the adulterous spouse wishes to plead connivance to " c l e a r h i s name" and the conniving spouse has not committed a d u l t e r y , 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 o f d i v o r c e , 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 o f t h i s s o r t 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 21 i t i s h i s duty to a s c e r t a i n the t r u t h .  connivance,  Although the nature o f  the proceedings o f an undefended d i v o r c e makes t h i s 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 d i v o r c e cannot r u l e o u t . Condonation W. Kent Power, i n h i s l e a d i n g t r e a t i s e on d i v o r c e i n Canada, defines condonation as forgiveness o f a d u l t e r y w i t h a 20 2  "Hechter vs. Hechter and Cohen, (1958) 12 D.L.R. (2d) 326. D i v o r c e and Matrimonial Causes A c t . Sec. 15-16.  1  - 29 f u l l knowledge o f the circumstances,  followed by reinstatment  of the offending party to h i s o r h e r former p o s i t i o n i n the home, subject to the i m p l i e d c o n d i t i o n that no f u r t h e r offense will  occur.  22  Again, as with a l l absolute bars, the judge i s  required to pursue a s u s p i c i o n o f condonation, even when i t i s not pleaded.  The p l a i n t i f f i s bound to d i s c l o s e any f a c t s which 23  might y i e l d a f i n d i n g o f condonation to the courts. Beard v s . Beard, an E n g l i s h d e c i s i o n , followed i n B r i t i s h Columbia, d e f i n i t e l y e s t a b l i s h e s t h a t condonation i s c o n d i t i o n a l on the f o r g i v e n spouse's continued  good behavior and that a  subsequent l e s s e r matrimonial offense can r e v i v e the condoned adultery.  Such l e s s e r offenses i n c l u d e c r u e l t y , d e s e r t i o n , 24  a d u l t e r y , o r an i n t e n t to commit a d u l t e r y . Thus a couple, one o f whom has been g u i l t y o f a d u l t e r y , must t h i n k very c a r e f u l l y before " t r y i n g again".  The f a c t o f  a d u l t e r y i n a marriage u s u a l l y i n d i c a t e s p r e - e x i s t i n g problems. Each partner may w e l l r e a l i z e h i s p a r t 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 o f a  matrimonial o f f e n s e , the couple f i n d they cannot l i v e  together,  the grounds f o r divorce a r e gone and the "innocent" spouse i s 22 J . D. Payne, p. 51. 23 ' i b i d . . pp. 54-55. 24„ Wrd v s . Beard, (1945) 2 A l l ER 306.  - 30 l e f t w i t h an empty marriage.  This aspect of the law would seem  to p e n a l i z e the "innocent" spouse f o r h i s d e s i r e to make h i s marriage work and to perhaps d e t e r some couples from attempting reconciliation.  Any p r o f e s s i o n a l persons wishing to help the  p a r t i e s o f the marriage work out a s o l u t i o n are a l s o 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 reconciliation. Collusion The B r i t i s h Columbian courts have not y e t s e t t l e d t h e i r p o s i t i o n as regards what c o n s t i t u t e s c o l l u s i o n .  There seems to  be two main t r a i n s o f thought as exemplified i n Dutko v s . Dutko and Johnson v s . Johnson and Arnet. Dutko v s . 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 o b t a i n a d i v o r c e by manufactured evidence 25 or by p r a c t i c i n g a d e c e i t o r fraud on the courts. The Johnson v s . Johnson and Arnet case decided by N o r r i s , J . i n B r i t i s h Columbia, f e l t t h a t c o l l u s i o n was inherent i n any agreement that tended to o b s t r u c t the course o f j u s t i c e .  Hence  according to t h i s case, any d e c e i t , 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 p o s s i b l e .  Also an agreement to f u r n i s h  evidence would be an i m p l i c i t agreement n o t to defend and hence collusxve. Both judgments agree t h a t i t i s an a c t o f 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 d e s i r e redress f o r h e r wrongs r a t h e r than f i n a n c i a l b e n e f i t . 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 o f utmost importance to p a r t i e s seeking d i v o r c e . much ambiguity surrounding  As there i s so  c o l l u s i o n , the p l a i n t i f f u s u a l l y  reveals to the court any agreement e x i s t i n g which may be construed as such.  A l s o , the judge i s bound to study cases before  him f o r signs o f c o l l u s i o n and the Attorney-General i f an agreement i s brought to h i s a t t e n t i o n .  can intervene  Hence, i f p a r t i e s  to a d i v o r c e make a c e r t a i n agreement to f a c i l i t a t e t h e i r d i v o r c e , e.g. the defendant supplies evidence and pays the c o s t s , and r e v e a l these i n f u l l to the court, they s t i l l run the r i s k o f having the agreement declared c o l l u s i v e .  One r e s u l t o f t h i s  i s , o f course, that agreements tend to remain p r i v a t e i n v o l v i n g the p a r t i e s i n a process o f concealment.  The other e f f e c t i s  that p a r t i e s to a d i v o r c e are f e a r f u l o f d i s c u s s i n g any matters p e r t a i n i n g to t h e i r a c t i o n .  I t should be noted t h a t the one  Johnson v s . Johnson and Arnet, (I960) 31 WWR (NS) 403.  - 32 — agreement p a r t i e s are e n t i t l e d by law to make i s i n regard to the custody o f c h i l d r e n .  27  Costs Rules 29 and 30 o f the B r i t i s h Columbia Supreme Court r u l e s p e r t a i n i n g to Divorce and Matrimonial Causes, s t a t e that whether the w i f e i s the defendant o r p l a i n t i f f , s u c c e s s f u l o r u n s u c c e s s f u l , she may be awarded h e r c o s t s , a t the d i s c r e t i o n 28 of the court. favor.  The costs are u s u a l l y asked f o r i n the wife's  The r a t i o n a l e behind t h i s r u l e i s t h a t no w i f e should  be denied a d i v o r c e o r a defense due to l a c k o f funds. can e x e r c i s e j u d i c i a l d i s c r e t i o n and refuse costs.  A judge  However,  i n B r i t i s h Columbia the w i f e i s u s u a l l y granted h e r costs unless the court f e e l s that h e r s u i t o r defense were f a r c i c a l o r where 29 she has a p r i v a t e source o f income.  The w i f e can however f i n d  h e r s e l f without funds to i n s t i t u t e a divorce i n cases where her lawyer wishes a deposit o r where she must h i r e a d e t e c t i v e to o b t a i n proof o f a d u l t e r y .  She can, o f course, recover such  costs f o l l o w i n g the court hearing. I n B r i t i s h Columbia, the cost o f an undefended d i v o r c e i s about $600. This includes the lawyer's fee which averages $400, 27 Equal Guardianship o f I n f a n t s A c t , 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 o f various t e c h n i c a l d e t a i l s e.g. s e r v i n g the defendant, o f about $100, and the cost of a d e t e c t i v e o f 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 d i v o r c e must u s u a l l y count on a b i l l of a t l e a s t $500 and t h i s b i l l can go w e l l over $1500 m a r k .  30  I n B r i t i s h Columbia, according to one p r a c t i s i n g  lawyer,  Legal A i d i s not normally provided f o r divorces as lawyers would 31 be swamped!  Legal A i d i s provided i n d i v o r c e cases where a  q u a l i f i e d s o c i a l worker has recommended such a i d f o r the b e n e f i t of the i n f a n t c h i l d r e n of the marriage o r when a doctor has recommended a i d on the grounds that the h e a l t h of the a p p l i c a n t i s endangered by continuing matrimonial problems. i s a l s o not rendered i n d i v o r c e proceedings  Legal A i d  where a l e s s e r  remedy, such as j u d i c i a l s e p a r a t i o n , w i l l s u f f i c e .  Legal A i d  has been rendered to o b t a i n divorces i n cases of i n c e s t and 32 b r u t a l i t y to the c h i l d r e n . These f i g u r e s would seem to i n d i c a t e that o n l y a person w i t h a steady, r e l i a b l e job and not too many f a m i l y r e s p o n s i b i l i t i e s would stand a f a i r chance o f f o r m a l l y ending h i s marriage. J o h n Stanton, Verbal Communication, January 19, 1966. 3 0  ^Norma C h r i s t i e , Verbal Communication, 1965. 32 The Law S o c i e t y o f B r i t i s h Columbia, Legal A i d i n B r i t i s h Columbia. Vancouver, 1963, p. 3. 3  - 34 The Hearing On F r i d a y s , between 11 and 1 o'clock, the Supreme Court o f B r i t i s h Columbia hears undefended d i v o r c e a c t i o n s . One o f the authors attended one such s e s s i o n , and the f o l l o w i n g are h e r impressions o f the hearing. One walks i n t o the court room; the o f f i c i a l s are a t the f r o n t and there a r e seats f o r spectators a t the back. judge i s dressed i n robes as a r e the lawyers.  The  The court i s  c a l l e d to order and the p l a i n t i f f i s sworn i n , asked h i s name, and h i s lawyer asks permission to lead the witness through the p r e l i m i n a r y parts o f the statement o f c l a i m . granted.  This i s u s u a l l y  A p i c t u r e o f the defendant i s shown to the p l a i n t i f f  to v e r i f y t h a t the c o r r e c t person was served w i t h the w r i t and statement o f c l a i m .  Domicile i s e s t a b l i s h e d , the welfare o f  the c h i l d r e n 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 a t the a d u l t e r y o f the defendant o r entered i n t o a c o l l u s i v e bargain w i t h him.  The lawyer a l s o 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 a d u l t e r y .  Costs are asked f o r .  The matrimonial offense on which the d i v o r c e i s granted i s then proven.  I n one case, the b i r t h o f a c h i l d to the defen-  dant, o f which the p l a i n t i f f could not p o s s i b l y be the f a t h e r , was accepted as proof.  I n other cases, p r i v a t e i n v e s t i g a t o r s  - 35 were c a l l e d .  I n one case, the testimony was as f o l l o w s :  i n v e s t i g a t o r s were watching the defendant's apartment.  Two A t 2:45  the l i g h t s went out and a t 3:15, the i n v e s t i g a t o r s knocked. man answered the door dressed i n h i s trousers o n l y .  A  The detec-  t i v e s i d e n t i f i e d themselves, and asked f o r the defendant w i f e . I t was discovered that she was i n bed and the d e t e c t i v e s 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 j o k e .  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 c h i l d r e n o r alimony.  The marriage i s then d i s s o l v e d .  The e n t i r e procedure l a s t s approximately ten minutes. The a t t i t u d e i n the court room i s predominently one o f boredom. Court o f f i c i a l s move about, the lawyer goes through h i s questions q u i c k l y , the judge does not i n q u i r e i n t o anything except the occasional legal d e t a i l .  The p l a i n t i f f , although nervous, has  the a i r o f one going through a necessary r i t u a l .  I n one case,  the male p l a i n t i f f ' s v o i c e broke and he needed a few seconds to recover h i m s e l f , the a t t i t u d e o f the court was one o f s u r p r i s e and d i s t a s t e - imagine having the bad t a s t e to c r y about a divorce!  G e n e r a l l y one f e l t that the court and the p a r t i e s  wanted an unpleasant and embarassing episode over w i t h as q u i c k l y as p o s s i b l e .  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 t h i s province, the d i v o r c e laws and r u l e s , c a r e f u l l y s t r u c t u r e d to prevent d i v o r c e by mutual consent and to punish t h e g u i l t y spouse, are f a i l i n g i n t h e i r avowed purpose. The general p r a c t i s e of undefended actions make divorce by consent, o r a t l e a s t i n d i f f e r e n c e , the r u l e . . Where the law i s invoked and connivance o r 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 s t a t e of the law on c o l l u s i o n i s such that  many people, w i s e l y , keep any agreements very p r i v a t e . I n a healthy s o c i e t y , the d i s t a n c e 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 f u r t h e r and f u r t h e r 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 . d i v o r c e laws i n Canada are f r e q u e n t l y circumvented.  The  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 p r i v a t e communications, a d i v o r c e i s assured.  This wide-  spread d i s r e s p e c t o f one law, o f t e n the o n l y one which "respectable" c i t i z e n s o r t h e i r f r i e n d s come i n contact w i t h , can o n l y t a i n t our other laws.  The d i v o r c e laws o f Canada do not merely need  an extension of the grounds on which d i v o r c e can be obtained, they need r e 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 o f r e c o n c i l i a t i o n , and where impossible to make the necessary arrangements w i t h as l i t t l e d i s r u p t i o n to the couple, t h e i r c h i l d r e n and the community as p o s s i b l e .  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 o b l i g a t i o n s to each other and to s o c i e t y .  I t would seem that the formal d i s s o l u t i o n o f  the m a r i t a l bond i n any s o c i e t y must be a c o r o l l a r y o f the theory and p r a c t i c e o f 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 - o f the same i n s t i t u t i o n .  Due mainly to the e m p i r i c a l  character o f the law, however, there i s no general s e c u l a r l e g a l d o c t r i n e o f marriage o r a c l e a r statement o f i t s nature, aims, and purposes.''"  This l a c k makes the i d e a l o f formulating a  d i v o r c e law which would bear some congruence to our marriage law v i r t u a l l y impossible. In p r a c t i c e , the basis f o r c o n t r a c t i n g marriage i s volunt a r y 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 f o r entering i n t o marriage.  Yet while the  law accepts these conditions as v a l i d grounds f o r e n t e r i n g i n t o marriage, i t does not accept the absence o f these conditions as  T)ominik Lasok, "The Grounds o f Divorce i n T r a n s i t i o n , " S o l i c i t o r s Q u a r t e r l y , v o l . 2, no. 4 (October 1963), p. 298.  - 39 v a l i d grounds f o r i t s discontinuance.  2  On the matter of d i v o r c e grounds i n g e n e r a l , there are few branches o f law upon which p u b l i c o p i n i o n i s so sharply and w i d e l y d i v i d e d , ranging from the b e l i e f t h a t marriage i s i n d i s s o l u b l e except by death to the advocating o f d i v o r c e fey mutual consent.  Our present l e g a l philosophy i s based on the  d o c t r i n e of the matrimonial o f f e n s e and p r i n c i p l e o f g u i l t which was adopted by the church to grant a d i v o r c e to the "innocent" party as a s a n c t i o n f o r an o f f e n s e committed by the other p a r t y 3 i n v i o l a t i o n o f the marriage c o n t r a c t .  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 o f a marriage i s t h a t of a d u l t e r y . (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  little  a t t e n t i o n as i s s u e s i n divorce.) Even i f we accept the p r i n c i p l e o f the matrimonial o f f e n s e , i n the l i g h t o f current p s y c h o l o g i c a l 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 a s s e r t that most marriages s u f f e r i r r e p a r a b l e 4 breakdown as a r e s u l t o f a s i n g l e act o r event.  I t i s not the  2 Helen I . C l a r k e , S o c i a l L e g i s l a t i o n . New York, AppletonCentury-Crofts, Inc., 1957, p. 28. 3 Lasok, p. 307. 4  I b i d . , p.  318.  - 40 purpose of t h i s s e c t i o n to d e l i b e r a t e on the question o f which comes f i r s t , the m a r i t a l breakdown o r 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 f a c t o r s which must be o p e r a t i v e i n order to render married l i f e intolerable.  Our law does, i n f a c t , maintain the d o c t r i n e 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 o f a d u l t e r y . The question must be asked as to whether o r not there are more cogent causes than a s i n g l e act o f a d u l t e r y f o r r e l e a s i n g a spouse from the marriage contract.  I t does not r e q u i r e much  imagination o r experience to be aware o f the various s i t u a t i o n s which can be allowed to e x i s t under our present law.  The  c r u e l t y i n a marriage can be so great that the mental and physic a l h e a l t h o f the spouses o r c h i l d r e n breaks, yet the law does not consider t h i s s u f f i c i e n t grounds to grant r e l e a s e from the s i t u a t i o n to the p a r t i e s i n v o l v e d .  An i n d i v i d u a l may  himself o r h e r s e l f bound i n a marriage to someone who  find i s so  mentally i l l as to r e q u i r e i n d e f i n i t e confinement; y e t even though a l l the personal and s o c i a l functions o f marriage have ceased to e x i s t , the l e g a l t i e must be maintained. of d e s e r t i o n , a man o r woman may  In the case  remain away from h i s o r her  spouse f o r e v e r , and s t i l l the deserted party i s unable to r e marry o r make a new  l i f e f o r himself.  The i n d i v i d u a l s i n these  and innumerable other not uncommon and e q u a l l y t r a g i c s i t u a t i o n s  - 41 are denied the r i g h t to f r e e themselves from t h e i r  marriages.  As a r e s u l t , people are o f t e n forced i n t o i l l e g a l common-law r e l a t i o n s h i p s because they are unable to c o n t r a c t l e g a l ones.*' W. Kent Power has stated that the o p i n i o n of the m a j o r i t y of Canadians i n the English-speaking provinces i s that  "...  while marriage i s o f p u b l i c concern and i t s s a n c t i t y 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 en6 l a r g i n g the grounds on which divorces are o b t a i n a b l e . " The fundamental p r i n c i p l e s of our d i v o r c e law at present, as i m p l i e d and adhered to by the d e c i s i o n s of the c o u r t s , are that we do not recognize d i v o r c e by consent, that marriage and d i v o r c e concern not only the p a r t i e s i n v o l v e d but the p u b l i c as w e l l , and that i t i s i n the p u b l i c i n t e r e s t that the s a n c t i t y and importance of the marriage r e l a t i o n s h i p should be and protected.  maintained  I t i s t h i s l a s t p o i n t which seems to be open to  the greatest amount o f 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 r a i s e the very v i t a l i s s u e of p u b l i c 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 a l s o the important question o f 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 , C r u e l , Barbarous, D i s g u s t i n g , " The C o u r i e r , v o l . 2, no. 5 (June 1964). 6 W. Kent Power, Power on Divorce. Calgary, Burroughs & Company, L t d . , 1964, p. 26.  - 42 p u b l i c i n t e r e s t i s served  by: f o r c i n g the maintenance o f a  demoralizing r e l a t i o n s h i p and d i s i n t e g r a t e d marriage.  A  d e c i s i o n handed down by the Supreme Court o f Poland bears relevance to t h i s p o i n t ; i n t h i s 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 p u b l i c good i n order to e l i m i n a t e another s o c i a l e v i l , namely the continuation o f a formal matrimonial union i n s p i t e of the f a c t that the u n i t y had d i s i n t e g r a t e d .  7  A further  statement by a "learned commentator" agrees that while m a t r i monial law i s dominated by a paramount p u b l i c i n t e r e s t , ". • . p u b l i c o p i n i o n has long since recognized  that there may  be a p u b l i c i n t e r e s t i n the non-existence o r i n the d i s c o n t i n g uance o f a marriage as w e l l . " Although a l a r g e proportion o f Canadians may b e l i e v e that the present divorce grounds are inadequate and antiquated, y e t they t o l e r a t e o r even encourage a purported  compliance w i t h  them when what they regard as r e a l grounds f o r f r e e i n g the  9 parties exist.  Under the law as i t stands a t present, people  who seek freedom from marriages which may be damaging to a l l concerned a r e forced to "construct" and "prove" a d u l t e r y ; 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 d e t e c t i v e s , p r o f e s s i o n a l co-respondents, and other l e g a l p r a c t i c e s which " . . .  wink a t the true s t a t e  o f a f f a i r s and b r i n g the courts i n t o d i s r e p u t e . """"^ I f the i n d i v i d u a l s involved can a f f o r d the expense o f doing so, i t does not appear to be very d i f f i c u l t to "arrange" a case o f a d u l t e r y .  I t i s safe to say that people not i n f r e -  quently get divorces on the grounds of a d u l t e r y which has never taken place o r , i f i t has, which i s not the "reason" f o r the divorce a t 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 a f f o r d the f i n a n c i a l cost o f proving a d u l t e r y .  And  t h i s i s where the law  lends  i t s e l f to c o r r u p t i o n and forces desperate people to engage i n h u m i l i a t i n g , 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 p r a c t i c e s might a c t u a l l y disappear i f the law were changed to prevent a s i n g l e act of a d u l t e r y being r e l i e d on as the cause o f a divorce action.  1 1  I n the f i n a l a n a l y s i s , 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 a d u l t e r y , r e a l o r c o n t r i v e d , but i n Ithe process the  ""^Christie, l o c . c i t . """"Power, p.  27.  - 44 p a r t i e s i n v o l v e d , the l e g a l p r o f e s s i o n , and therefore s o c i e t y as a whole must s u f f e r .  A s i t u a t i o n i n which the r u l e s o f law  are so g r o s s l y out o f harmony w i t h the b e l i e f s and p r a c t i c e s o f the people which they are supposed to serve cannot i n any way c o n t r i b u t e toward the development o f a healthy s o c i e t y . There are s e v e r a l r e l a t e d l e g a l f a c t o r s w i t h s o c i a l imp l i c a t i o n s which a f f e c t the granting o f a d i v o r c e decree. such matter i s t h a t o f d i s c r e t i o n a r y bars. undertakes d i v o r c e proceedings  One  When an i n d i v i d u a l  a g a i n s t h i s o r h e r spouse, even  though h i s case has been proved and the court has n o t found an absolute bar, i t i s not bound to grant a decree f o r d i v o r c e i f i t f i n d s a d i s c r e t i o n a r y bar e x i s t s , as s p e c i f i e d i n Section 16 of the Divorce and Matrimonial Causes Act.  These d i s c r e t i o n a r y  bars are that the p l a i n t i f f h i m s e l f has been g u i l t y o f : (1) a d u l t e r y during the marriage; (2) unreasonable delay i n presenting o r prosecuting the p e t i t i o n ; (3) c r u e l t y ; (4) d e s e r t i o n without reasonable cause; o r (5) w i l f u l neglect o r misconduct which 12 conduced to the a d u l t e r y . Where a d i s c r e t i o n a r y bar a r i s e s , the law imposes on judges the duty o f e x e r c i s i n g a j u d i c i a l d i s c r e t i o n , but does not l a y 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 A c t . R.S.B.C., I960, Ch. 118, Sec. 16.  - 45 be based.  13  Apparently the d e c i s i o n s made must be based on  c o n s i d e r a t i o n o f the f a c t s o f each p a r t i c u l a r case, and a d e c i s i o n on no one case can be an a u t h o r i t y f o r another.  This  l a c k o f d e f i n i t i o n seems to leave much room f o r f l e x i b i l i t y and v a r i a t i o n , but a t the same time poses the question as to how much the i n d i v i d u a l opinions o f judges enter i n t o t h e i r d e c i s i o n s . C e r t a i n l y those s i t t i n g on the bench represent a l l points along the  continuum of views on d i v o r c e .  A judge s t r o n g l y opposed to  the d i s s o l u t i o n o f marriage may w e l l g i v e more narrow i n t e r p r e t a t i o n to h i s d i s c r e t i o n a r y power and be more apt to d i s c o v e r a d i s c r e t i o n a r y bar than one who e n t e r t a i n s a more l i b e r a l viewpoint.  Because o f the f u z z i n e s s 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 f a c t o r s weighed most h e a v i l y i n producing the f i n a l d e c i s i o n i n a p a r t i c u l a r case. Regardless o f t h e i r i n d i v i d u a l o p i n i o n s , 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 g i v e e f f e c t to i t s p r o v i s i o n s to the best o f t h e i r a b i l i t y . The d i s c r e t i o n a r y bar which has received the most a t t e n t i o n both i n p r a c t i c e and i n the l i t e r a t u r e , i s that o f a d u l t e r y . According to S e c t i o n 16 of the Divorce and M a t r i m o n i a l Causes Act,  "...  the court i s not bound to pronounce such (divorce)  decree i f i t f i n d s that the p e t i t i o n e r has d u r i n g the marriage  Power, p. 30.  - 46 been g u i l t y o f a d u l t e r y . . . "  Where the p l a i n t i f f i s found  g u i l t y , S e c t i o n 16 requires the court to decide whether o r not to e x e r c i s e d i s c r e t i o n i n h i s favor - that i s , whether o r not to grant the decree. The p r i n c i p l e t h a t appears to be operating here i s again that o f g u i l t versus blamelessness.  The d o c t r i n e requires that  the p l a i n t i f f come i n t o court with "clean hands" i n regard to the current proceedings.  As a r e s u l t , he must d i s c l o s e i n f u l l  the d e t a i l s o f h i s own a d u l t e r y to h i s lawyer.  This i n f o r -  mation i s sealed i n an envelope and inspected by the p r e s i d i n g judge when the case i s opened.  The p l a i n t i f f thereby  places  himself a t the mercy o f the court by confessing h i s own g u i l t and begging f o r leniency by asking t h a t d i s c r e t i o n be exercised i n h i s favor. There i s no statement i n the law which makes i t mandatory f o r the p l a i n t i f f to d i s c l o s e to the court h i s own a d u l t e r y . The p r a c t i c e o f d i s c r e t i o n o r i g i n a t e d 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 a t t e n t i o n o f the court, there was more l i k e l i h o o d o f favorable t r e a t ment f o r him i f he himself d i s c l o s e d i t and sought favorable 14 judgement.  Whereas i t i s supposed to be the knowledge o f the  Raymond G. Herbert, " D i s c l o s u r e o f the P e t i t i o n e r ' s A d u l t e r y 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 e x e r c i s i n g of d i s c r e t i o n and not h i s d i s c l o s u r e of i t , i n a c t u a l p r a c t i c e , however, d i s c l o s u r e seems to be a p r a c t i c a l n e c e s s i t y , 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 o f the law, the f a c t remains t h a t the p l a i n t i f f should s u f f e r no p r e j u d i c e from nond i s c l o s u r e , s i n c e he has no duty to make such a d i s c l o s u r e . I t appears to no longer be the exception that d i s c r e t i o n a r y 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 e x e r c i s e o f j u d i c i a l d i s c r e t i o n i n favor o f the p l a i n t i f f than was  formerly accorded.*" ' 4  The  judgment o f the House of Lords i n Blunt vs. B l u n t , which has been c o n s i s t e n t l y followed and a p p l i e d by Canadian c o u r t s , e s t a b l i s h e d the circumstances  which warrant e x e r c i s e o f d i s -  c r e t i o n i n the p l a i n t i f f ' s favor. "circumstance"  Perhaps the one most important  which has allowed the courts to e x e r c i s e 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 l a r g e , ". . . 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 s a n c t i t y o f marriage and the s o c i a l considerations which make i t contrary to p u b l i c p o l i c y to i n s i s t on the maintenance o f 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 o r t h i s current trend i n the p r a c t i c e o f e x e r c i s i n g 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 t h a t when a case r e q u i r i n g a d i s c r e t i o n a r y d e c i s i o n comes before i t , the marriage i n question must be i n such a s t a t e o f d i s r e p a i r that i t would be i n the best i n t e r e s t s o f a l l concerned to d i s s o l v e i t . to be one of p r i n c i p l e .  Yet again, the problem seems p r i m a r i l y I f one spouse commits a d u l t e r y , the  other can o b t a i n a d i v o r c e , provided he can prove the a d u l t e r y . I f both commit a d u l t e r y , 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 d i v o r c e to be obtained.  This d i s c r e t i o n a r y bar may i n f a c t be a b e n e f i c i a l  and v a l u a b l e p r o v i s i o n , as i t can a l l o w the d i s s o l u t i o n o f a marriage which has broken down; but s a n c t i o n i n g an i n d i v i d u a l to o b t a i n a d i v o r c e on the grounds o f h i s spouse committing an "offense" o f which he himself i s a l s o g u i l t y makes a mockery o f the law and o f the whole concept o f marriage as w e l l . There are c e r t a i n features o f the law w i t h regard to e v i dence and proof o f a d u l t e r y which deserve mention and c o n s i d e r a t i o n . Power, p. 103.  - 49 To begin w i t h , the burden i s on the p l a i n t i f f  to prove a d u l t e r y ,  18 not on the defendant  to d i s p r o v e i t .  The standard o f p r o o f  r e q u i r e d t o prove a d u l t e r y was e s t a b l i s h e d by the case o f Smith v s . Smith and Smedman, 1952, i n which " . . . the Supreme Court o f Canada h e l d , so f a r as B r i t i s h Columbia i s concerned, t h a t the standard o f proof r e q u i r e d to prove a d u l t e r y i n a d i v o r c e a c t i o n , where the l e g i t i m a c y o f o f f s p r i n g i s n o t i n q u e s t i o n , i s the c i v i l standard o f proof by preponderance o f evidence r a t h e r than the c r i m i n a l standard o f p r o o f beyond a  19 reasonable doubt."  However, " . . . a p l a i n t i f f who seeks a  decree o f d i v o r c e on evidence which, i f accepted, w i l l b a s t a r d i z e a c h i l d born d u r i n g the s u b s i s t e n c e o f the marriage, 20 prove a d u l t e r y beyond reasonable doubt. . .", c r i m i n a l standard o f p r o o f .  must  which i s the  I n the o p i n i o n o f the a u t h o r s , the  problem which a r i s e s here i s t h a t the q u e s t i o n o f i l l e g i t i m a c y i s merely one o f the matters of  which should a f f e c t the s e r i o u s n e s s  the i s s u e s and should t h e r e f o r e r e c e i v e due c o n s i d e r a t i o n by  the c o u r t s but not the a c t u a l standard o f p r o o f r e q u i r e d , which should s18 t i l l be the c i v i l one o f preponderance o f evidence. Power, p. 421. 19 W. G. N. E g b e r t , " D i v o r c e - Standard o f Proof o f A d u l t e r y , " CBR, v o l 30, 1952, p. 753. 20 Power, p. 427.  - 50 I t i s almost never p o s s i b l e to adduce d i r e c t evidence of a d u l t e r y ; i t i s u s u a l l y c i r c u m s t a n c i a l , 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 a d u l t e r y occurred.  I t i s a l s o impossible to l a y down any  general r u l e d e f i n i n g the circumstances which are s u f f i c i e n t to j u s t i f y a f i n d i n g of a d u l t e r y , " . . .  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 -  t i o n e r f o r d i v o r c e i s protected against questions as to h i s o r 23 her a d u l t e r y , but the respondent i s not.  The haziness  surroun-  ding the i s s u e o f evidence i s compounded by the use o f vague and undefinable terms.  Even though the charges o f a d u l t e r y 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 s i n g l e 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 o f 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 p r a c t i c e ^?ower, p. 427. that such 22 admissions are looked upon w i t h s u s p i c i o n and z e a l o u s l y Ibid. i b i d . , p.686. 24 Divorce and Matrimonial Causes A c t . Sec. 16. 2 3  - 51 s c r u t i n i z e d f o r evidence o f c o l l u s i o n , e t c .  25  Whereas " h o t e l  evidence" has been refused as s u f f i c i e n t by the courts i n recent years, the uncorroborated s t i l l admissible.  26  evidence o f p r i v a t e d e t e c t i v e s i s  Proof o f i n c l i n a t i o n , opportunity and  a s s o c i a t i o n i s not s u f f i c i e n t to prove that a d u l t e r y has occurred, which seems to be a wise p r o v i s i o n ; f o r f a m i l i a r i t i e s which would j u s t i f y s u s p i c i o n i n c e r t a i n environments are o f 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 .  I n a l l , however, the r u l e s r e -  garding evidence are r e l a t i v e l y vague and undefined, and seem to demand s u b j e c t i v e d e c i s i o n s and value judgments. I n reviewing our laws regarding grounds f o r d i v o r c e , i t i s impossible to remain unimpressed w i t h t h e i r g l a r i n g d e f i c i e n c i e s and harmful elements.  I t has always been s t a t e d , a t  l e a s t i n theory, that the purpose o f laws i s to enable people to govern themselves w h i l e a t the same time p r o t e c t i n g t h e i r best i n t e r e s t s .  Our current l e g a l p r a c t i c e s regarding d i v o r c e  grounds are not enabling.  I n p r i n c i p l e and i n p r a c t i c e , the law  i s a t odds w i t h the s o c i a l conditions o f 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 p r a c t i c e s , but seems to present i t s e l f as a foe to those whom i t would serve, f o s t e r the  25. Power, p. 432. 26  I b i d . , pp. 443, 451.  - 52 v e r y s o c i a l and l e g a l decay i t i s supposed to prevent, and g e n e r a l l y 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 s a n c t i t y o f the law.  The problem has been stated by one lawyer as  f o l l o w s : "No one i s more p a i n f u l l y conscious than the l e g a l p r o f e s s i o n of the u t t e r i m b e c i l i t y o f our present d i v o r c e procedure and the p e r n i c i o u s and almost wicked philosophy upon which i t i s based.  Every honest lawyer i s ashamed of the atmos-  phere of h y p o c r i s y and l i e s i n which he u s u a l l y must handle a d i v o r c e a divor-ce case; every conscientious judge i s b i t t e r about h i s 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 u s e f u l purpose by attempti n g to p r o t e c t the i n s t i t u t i o n o f marriage and the best i n t e r e s t s of s o c i e t y , then i t must aim to make and keep marriages t h a t are s o c i a l l y u s e f u l and to provide methods of d i s s o l u t i o n when continuance of the marriage i s demoralizing to the p a r t n e r s .  "The  permanency o f marriage does not r e s t on the e x t e r n a l power of church o r s t a t e ; i t endures because of i t s own i n t r i n s i c character.  To compel people to remain married due to a r c h a i c r e l i g i o u s  b e l i e f s and a n a c h r o n i s t i c s t a t u t e s i s as abhorrent as s l a v e r y . Divorce can be a healthy method of adjustment when marriage i s 27 P a u l W. Alexander, "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," GBR, v o l . 27, 1949, p. 239.  - 53 a failure." The f o l l o w i n g statement d e l i v e r e d i n conjunction with a d i v o r c e d e c i s i o n sums up many aspects o f the current s i t u a t i o n quite w e l l : People do make mistakes i n marriage and d i s c o v e r too l a t e that they cannot l i v e together, and so separate. Under the law as i t i s a t present, such persons cannot be divorced and given a chance to s t a r t over again upon a respectable basis unless one o f the spouses commits a d u l t e r y which, by some means, not only comes to the n o t i c e o f the other spouse, but a c t u a l evidence o f which also comes i n t o the hands o f the other spouse; o r unless they manufacture a set o f circumstances upon which the Court i s asked to f i n d that a d u l t e r y has taken place. This means that respectable persons who n e i t h e r 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 a d u l t e r y and engages i n fraud. I s t h i s i n the n a t i o n a l i n t e r e s t ? . . . To make an i s o l a t e d a c t o f a d u l t e r y the s o l e and only cause f o r d i v o r c e i s wrong i n p r i n c i p l e and v i c i o u s i n p r a c t i c e . I t i s time that the whole matter was considered by the r e s p o n s i b l e l e g i s l a t i v e a u t h o r i t y . The sham which takes place i n the courts i n many o f these matters should be put an end to.29  C l a r k e , p., 150 i  Power, p. 31.  CHAPTER IV DOMICILE  The t h i r d aspect o f the present d i v o r c e l e g i s l a t i o n and p r a c t i c e i n B r i t i s h Columbia, the s o c i a l e f f e c t s o f which might arouse concern, i s the concept o f " d o m i c i l e " .  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 a r i s e s out o f the d e c i s i o n s determining whether o r 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 f o r i t s s e r v i c e back through centuries o f common law.  There i s no  Canada-wide d o m i c i l e , i n s t e a d a person's d o m i c i l e i s located i n a s p e c i f i c province. Therrules f o r determining d o m i c i l e i n d i v o r c e a c t i o n s and other matrimonial causes do not d i f f e r from those a p p l i e d i n respect to other matters where a man's c i v i l status i s i n v o l v e d ; and i t may be that there a r e cases d e a l i n g with w i l l s o r other branches o f the law i n which the f a c t s as to d o m i c i l e a r e c l o s e l y s i m i l a r t o , o r even i d e n t i c a l w i t h , those i n question i n a d i v o r c e suit.1 I t i s not p e c u l i a r even to Canada. Likewise there i s not i n respect to d i v o r c e , d o m i c i l e a t l a r g e i n the United States o f America; each s t a t e i s a separate j u r i s d i c t i o n , o r i n the United Kingdom; England, Scotland, Northern I r e l a n d , and E i r e being separate ' c o u n t r i e s ' ; as a r e a l s o the cantons o f Switzerland.2 Hf. Kent Power, The Law and P r a c t i c e R e l a t i n g to Divorce. Calgary and Toronto, Burroughs and Co., 1964, p. 386. 2  I b i d . . p. 385.  - 55 The e f f e c t o f the " d o m i c i l e " r u l e can have unfortunate s o c i a l r e s u l t s w i t h regard to d i v o r c e proceedings  because o f a  combination o f f a c t o r s . F i r s t , the wife's d o m i c i l e ( f o l l o w i n g the e a r l y s o c i a l customs which made a woman, i n e f f e c t , p a r t o f the husband's property) cannot d i f f e r from that o f her husband. Thus, i n England and the Canadian common law provinces, the d o m i c i l e o f a married woman i s always that o f her husband as long 3  as a v a l i d marriage s u b s i s t s .  In fact " t h i s unity of domicile  i s created by operation o f law even where the marriage i s 4  voidable"  and "the i d e n t i t y o f the d o m i c i l e o f a w i f e w i t h that  of her husband i s not founded on any duty o f c o h a b i t a t i o n but i s a consequence o f the union between husband and w i f e brought about by the marriage t i e .  I t i s c o n c l u s i v e l y presumed, and the wife  has no capacity to acquire independent domicile."'' Secondly, the development o f B r i t a i n as an expanding n a t i o n during the f i f t e e n t h to eighteenth c e n t u r i e s , combined w i t h the development o f the colonies (and, to a degree, B r i t a i n ) during the seventeenth  to nineteenth centuries as a refuge f o r  the r e l i g i o u s l y o r p o l i t i c a l l y h e r e t i c a l o f other n a t i o n s , has prevented  " d o m i c i l e " from being simply considered a mere matter  of b i r t h o r residence. 3  Power, p. 387. 4 3  Ibid. I b i d . . p. 388.  Thus, "a person's d o m i c i l e i s e n t i r e l y  - 56 d i s t i n c t from, and i n no way dependent upon, h i s n a t i o n a l i t y ; i t concerns h i s c i v i l s t a t u s not h i s p o l i t i c a l a l l e g i a n c e . " A person's d o m i c i l e i s e i t h e r h i s d o m i c i l e o f o r i g i n o r a d o m i c i l e o f choice. Thel;, d o m i c i l e o f o r i g i n i s t h a t which the law a t t r i b u t e s to a person at h i s b i r t h . I t i s not n e c e s s a r i l y , as i t i s sometimes erroneously assumed to be, the country o f h i s b i r t h , but i t i s the d o m i c i l e o f 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 d o m i c i l e of choice i s the consequence which the law i n f e r s has r e s u l t e d from the combination o f two f a c t s , v i z : (1) A c t u a l presence i n the country o f choice; (2) Coupled w i t h the i n t e n t i o n of s e t t l i n g there permanently, o r , a t l e a s t , as Lord Cairns s a i d , ' f o r the r e s t o f h i s n a t u r a l l i f e , ' - i n the sense o f making t h a t 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 r e s i d e f o r many years i n a place without a c q u i r i n g a d o m i c i l e therev^the moment he_takes up residence i f he has the required i n t e n t i o n . °V_/and on the other hand he w i l l acquire  J a domicile there  But, " s i n c e to e s t a b l i s h a d o m i c i l e o f choice there must be the a c q u i s i t i o n of a new place o f residence w i t h the i n t e n t i o n o f remaining  there permanently, o r a t l e a s t i n d e f i n i t e l y Sine Animo  Revertendi. proof o f a c t u a l residence i s not s u f f i c i e n t . "  As  can be seen the i s s u e o f d o m i c i l e i s not e x a c t l y a c l e a r - c u t one. F i n a l l y , the conditions o f modem l i f e have made the o l d concepts o f " d o m i c i l e " 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 b i g n a t i o n a l o r i n t e r n a t i o n a l o r g a n i z a t i o n and  Power, p. 386. I b i d . . p. 400. ' i b i d . , p. 402. Power, p. 405.  - 57 subject to change of job l o c a t i o n a t the o r g a n i z a t i o n ' s pleasure, i s never, during h i s 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 r e s t o f h i s n a t u r a l l i f e " .  Among the l e a s t a f f l u e n t , too,  a f a i r amount o f t r a v e l l i n g goes on, e s p e c i a l l y during periods o f 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 exists.  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 f a m i l y , but i t may  also  i n v o l v e h i s b r i n g i n g h i s f a m i l y w i t h him to a new d i s t r i c t and then, a f t e r a short unsuccessful s t a y , himself moving e i t h e r back to the province o f o r i g i n o r on to a new province, alone because funds.no longer permit the f a m i l y to t r a v e l with him.. I f the marriage i s already subject to some degree of s t r e s s and unhapp i n e s s , 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 o f the w i f e l e f t behind with the c h i l d r e n to care f o r by the d e s e r t i n g husband has been m i t i g a t e d to a l i m i t e d extent by Sec. 2 o f the Divorce J u r i s d i c t i o n A c t R.S.C. 1952 Ch. 84 (passed i n 1930 as ch. 15).  This enables the wife  to sue f o r d i v o r c e i n the former d o m i c i l e 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 o f the deserted w i f e who wishes to o b t a i n her freedom.  "innocent"  - 58 F o r example, t h e r e i s t h e case o f t h e w i f e l e f t i n Saskatchewan w i t h h e r c h i l d i n 1929, w h i l e h e r husband went t o l i v e w i t h a n o t h e r woman. ^  I n 1934 i n o r d e r t o make a l i v i n g  f o r h e r s e l f and h e r c h i l d , she moved t o B.C., and around t h e same t i m e h e r husband moved t o M a n i t o b a . w i f e f i n a l l y decided  Some y e a r s  l a t e r the  t o t a k e 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 c o u l d p r o v e h e r husband d e s e r t e d , she attempted a c t i o n i n B.C. by t h e C o u r t o f A p p e a l .  definitely  H e r c a s e was turned down  E i t h e r Saskatchewan, where she was  d e s e r t e d , o r M a n i t o b a , where h e r 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 t o be t h e c o u r t s w i t h p o s s i b l e j u r i s d i c tion. Even when t h e d e s e r t e d w i f e sues i n t h e p r o v i n c e i n which t h e husband p r e s e n t l y r e s i d e s , and t o which she has subs e q u e n t l y moved, t h e C o u r t w i l l n o t e x e r c i s e j u r i s d i c t i o n i f i t c o n s i d e r s t h a t t h e husband i s m e r e l y a temporary r e s i d e n t because o f h i s e m p l o y m e n t . ^ I n r e c e n t y e a r s t h e B.C. c o u r t s have i n c l i n e d sympathetic  t o a more  i n t e r p r e t a t i o n o f d o m i c i l e i n d i v o r c e a c t i o n s , and  p l e a s o f l a c k o f i n t e n t i o n t o 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 B r e w s t e r v s . B r e w s t e r (1945) 2 WWR 382  - 59 been r e j e c t e d as a defense,  12  and the f a c t o f having entered  i n t o a separation order has not been accepted as evidence that 13 there was no d e s e r t i o n . Apart from the e f f e c t o f d o m i c i l e when a p p l i e d w i t h i n 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 o f f o r e i g n , e s p e c i a l l y U.S. divorces.  While marriages performed according to more l e n i e n t  U.S. laws a r e 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 o f the s t a t e concerned, divorces obtained there are not l e g a l i n Canada unless granted i n a s t a t e where the husband had l e g a l d o m i c i l e according to Canadian standards, (not residence) a t the time the d i v o r c e 14 was acquired.  The question o f f o r e i g n d i v o r c e i s too l a r g e  to be d e a l t w i t h , but the existence o f the above anomaly should be mentioned, p a r t i c u l a r l y as i t i s u s u a l l y the immature young who rush to o b t a i n a U.S. marriage, and then, when they have had time to r e a l i z e the wisdom o f t h e i r e l d e r s ' d i s a p p r o v a l , d i s c o v e r that they are not permitted to c o r r e c t t h e i r mistake as e a s i l y as they were allowed to make i t . W i t h e r s v s . Withers (1955) 16 WWR (NS) 271; Newell v s . Newell (1957) 21 WWR 572. 12  1 3  E l k i n s vs. E l k i n s (1952) 6 WWR (NS) 48.  14 W. Kent Power, "Throw Out Our C r u e l Divorce Law," Macleans Magazine, v o l . 69 (August 4, 1956), p. 46.  fc  There i s g e n e r a l agreement w i t h i n t h e l e g a l p r o f e s s i o n  t h a t t h e p r e s e n t l a w o f " d o m i c i l e " , h a v i n g developed o u t o f c e n t u r i e s o f common l a w , has n o t k e p t a b r e a s t o f t h e 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 t h e l a w o f d o m i c i l e has been f i n a l l y approved by t h e C o n f e r e n c e o f Commissioners on U n i 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 i n t e n d e d t o supercede t h e common-law r u l e s f o r d e t e r m i n i n g t h e d o m i c i l e o f a p e r s o n and s u b s t a n t i a l l y amends t h e common-law i n t h a t i t a b o l i s h e s t h e doct r i n e o f r e v i v a l o f t h e d o m i c i l e o f o r i g i n and a l s o e n a b l e s a m a r r i e d woman o r a n i n f a n t t o a c q u i r e an independent d o m i c i l e . 1 5 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  t o be  t h a t o f h i s f a t h e r even though h i s mother may have c u s t o d y o f him.  However, i n cases o f c u s t o d y , a t l e a s t , t h e B. C. c o u r t s ,  e s p e c i a l l y , t a k e a p r a c t i c a l s t a n d o n t h e m a t t e r and h o l d  that  " t h e c o u r t has no j u r i s d i c t i o n t o a d j u d i c a t e upon t h e c u s t o d y o f a c h i l d who i s n o t p r e s e n t w i t h i n t h e t e r r i t o r y o v e r w h i c h t h e c o u r t has j u r i s d i c t i o n u n l e s s  t h e p e r s o n h a v i n g t h e c o n t r o l and 16  authority over that c h i l d i s w i t h i n that t e r r i t o r y * '  The m a t t e r  o f c u s t o d y and t h e p o s i t i o n o f t h e 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 t o D i v o r c e , 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 " d o m i c i l e " , t h e i r exact source i s not u s u a l l y recognized and they are u s u a l l y d i s cussed along w i t h other problems a r i s i n g from d i v o r c e l e g i s l a t i o n without r e c o g n i t i o n of the p a r t " d o m i c i l e " may play i n their creation.  No study o f any type appears to have been done  to d i s c o v e r what p r o p o r t i o n o f deserted wives s t i l l e x i s t , who have grounds f o r and would take a c t i o n , but who are stopped by the n e c e s s i t y of paying f o r a lawyer and commencing the proceedings i n other parts of Canada.  CHAPTER V THE CHILDREN OF THE MARRIAGE  I n the attempt to assess the s o c i a l e f f e c t o f the present l e g i s l a t i o n and p r a c t i c e i n B. C. regarding d i v o r c e , l e t us now look a t the c h i l d r e n o f the marriage.  There were 587 men and  2877 women l i s t e d as "divorced heads o f f a m i l i e s " c a r i n g f o r 9308 c h i l d r e n (3540 under the age o f 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 o b t a i n i n g a d i v o r c e , and i t i s probably s i g n i f i c a n t that a t the same time there were 2465 "husband o n l y a t home" and 9335 "wife only a t home" f a m i l i e s 2 c a r i n g f o r 35,376 c h i l d r e n (16,244 under the age o f 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 o f the c h i l d has been h e l d uniformly to be i n the provinces.  I n B.C., the  p r o v i s i o n s made i n Sec. 35 o f the A c t o f 1857 were re-enacted unaltered as Sec. 20 o f the Divorce and M a t r i m o n i a l Causes A c t , R.S.B.C., 1960, ch. 118. Under Sec. 20, a c t i o n may be s t a r t e d to place the c h i l d under the p r o t e c t i o n o f the Court o f Chancery ( i n t h i s Province the Supreme Court o f B r i t i s h Columbia).  The  ""Canada, Bureau o f S t a t i s t i c s , Census o f Canada 1961. Ottawa, Queen's P r i n t e r , 1962, 95-516, Table 73. 2  Ibid.  - 63 c h i e f reason f o r t h i s s e c t i o n i n the 1857 Act was probably to p r o t e c t the i n h e r i t a n c e 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 t h i s s e c t i o n i s supplemented  by The Equal Guardianship  of I n f a n t s A c t , R.S.B.C., I960, Ch. 130, Sees. 12 and 13, which c l e a r l y show that custody o r guardianship may be removed from a parent. When the court hears an a c t i o n f o r d i v o r c e , nothing i n these acts f o r c e s the judge to make any order regarding the c h i l d r e n of the marriage. 1961, Province o f B. C ,  However, the Supreme Court Rules, r e q u i r e every statement of c l a i m to  i n c l u d e : "Sec. 11(1)(1) - the names and dates o f b i r t h of a l l l i v i n g i s s u e , and, i n the case of any such i s s u e 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 d i v o r c e where custody i s not being requested, the judge w i l l know something about plans f o r the c h i l d r e n of the marriage.  However, no automatic p r o v i s i o n s e x i s t to provide f o r  any independent i n v e s t i g a t i o n of these plans. What p r i n c i p l e s determine the court d e c i s i o n s when proposed plans f o r the c h i l d r e n are considered?  So f a r as the  Divorce and Matrimonial Causes A c t i s concerned, the c r i t e r i o n 3 i s such p r o v i s i o n . . . as i t may deem j u s t and proper." The Divorce and M a t r i m o n i a l Causes A c t . 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  t h i n k f i t " and "having regard to the welfare  of the i n f a n t , and to the conduct o f 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 e s t a b l i s h e d t h a t "the governing p r i n c i p l e i n d e c i d i n g the question o f custody i s t h a t the paramount 6 f a c t o r to be considered i s the best i n t e r e s t s o f the c h i l d . " I f n e i t h e r party to the d i v o r c e i s requesting custody and the d i v o r c e i s uncontested, the judge w i l l normally assume that the parents' p l a n s , as o u t l i n e d , w i l l ensure "the best i n t e r e s t s of the c h i l d . "  I f custody i s requested and n e i t h e r the request  nor the d i v o r c e are contested, he has one f u r t h e r piece of i n formation provided to him i n the statement of the c l a i m : "Sec. 11 ( l ) ( p ) , where the w r i t i n c l u d e s a c l a i m f o r the custody of c h i l d r e n , f u l l p a r t i c u l a r s of the f a c t s upon which such c l a i m i s founded."  7  However, i t i s a reasonable assumption that i n a  m a j o r i t y o f cases, unless the plans o u t l i n e d i n the statement o f 4 Divorce and Matrimonial Causes A c t . R.S.B.C., I960, Ch. 130, Sec. 13. Ibid. J u l i e n D. Payne, The Law and P r a c t i c e R e l a t i n g to Divorce. 2nd ed., Calgary, Burroughs and Company, L t d . , 1964, p. 611. 5  0 r d e r LX - Divorce and M a t r i m o n i a l 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. 7  - 65 c l a i m are o b v i o u s l y inadequate o r unusual, the judge w i l l assume t h a t the parents* plans ensure "the best i n t e r e s t s of the c h i l d . " I f the custody request i s contested, the judge w i l l r e ceive the preceding d e t a i l s about both proposed p l a n s , and w i l l have the o p p o r t u n i t y to question the parents concerned and any witnesses they produce i n c o u r t .  I f he wishes a f u r t h e r inde-  pendent assessment, he may request the Superintendent o f C h i l d Welfare to o b t a i n reports on the two proposed homes, and adjourn the hearing f o r s e v e r a l months u n t i l these are r e c e i v e d . For s e v e r a l reasons, these reports w i l l not be w r i t t e n u n t i l a f t e r the hearing and the judge's request even though both p a r t i e s 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 o n l y a l i m i t e d amount o f evidence what "the best i n t e r e s t s o f the c h i l d " i s . U n t i l t h i s century the " d i v i n e r i g h t s o f parents" to d i s pose o f t h e i r c h i l d r e n as they wished was g e n e r a l l y accepted. In f a c t , the question o f whether the mother, as w e l l as the f a t h e r , had some c l a i m to p r o t e c t and p l a n f o r her c h i l d was s t i l l being debated,  (The clause already quoted w i t h i t s "as w  w e l l o f the mother", both s i g n i f i e s the r e c o g n i t i o n o f the mother's c l a i m , and i s evidence o f how r e c e n t l y t h a t r e c o g n i t i o n has occurred.)  During the f i r s t h a l f o f t h i s century an i n -  creasing s u s p i c i o n has developed that p a r e n t a l love i s not always  - 66 enough and t h a t , a t times, the most w e l l - i n t e n t i o n e d o f parents are w e l l - a d v i s e d to seek expert help i n handling a c h i l d ' s problems.  The c o r o l l a r y developing i n recent years i s that the  c h i l d r e n o f l e s s perceptive and l o v i n g parents may even more f r e q u e n t l y r e q u i r e the expert's h e l p , and perhaps the s t a t e should devise methods to ensure that they r e c e i v e i t , even i f t h e i r parents' r i g h t s have to be o v e r r u l e d . I t i s not s u r p r i s i n g t h a t w i t h t h i s idea g a i n i n g acceptance the law j o u r n a l s , 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 i n t e r e s t s o f the c h i l d " , when he has o n l y the parents' f a c t s plus evidence from well-disposed but i n e x p e r t r e l a t i v e s and friends.  T y p i c a l o f the a r t i c l e suggesting the l i m i t a t i o n s o f  the present system i s the f o l l o w i n g quotation:  . ..  . . . i n reaching conclusions as to the best i n t e r e s t s of a c h i l d and as to p a r e n t a l 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 p s y c h o l o g i c a l informat i o n . Consequently, a judge may have nothing but h i s common sense to guide him to a wise s o l u t i o n o f a complex problem.o What i s a l s o needed i s the p r o f e s s i o n a l a s s i s t a n c e of experts to help the courts o b t a i n e s s e n t i a l f a c t s . The t r a d i t i o n a l adversary process i s inadequate i n custody cases.9 H. H. F o s t e r , and D.J. Freed, " C h i l d Custody," New York U n i v e r s i t y 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  o f w i s e l y planning f o r t h e i r c h i l d r e n , there i s the a r t i c l e by a j u v e n i l e and f a m i l y court judge who has counted h i s recent j u v e n i l e and f a m i l y court cases and discovers t h a t one-half o f the c h i l d r e n i n t r o u b l e w i t h the law come from parents divorced two o r more times.*  -0  Another a r t i c l e s t r e s s e s the growing  seriousness of the problem w i t h the f o l l o w i n g comments: 'Longevity' one of the major causes of the i n c r e a s i n g incidence of d i v o r c e . . . . Sharp drop i n m o r t a l i t y r a t e i n childhood and adolescence . . . . increasing numbers of minor c h i l d r e n 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 p r o t e c t i o n of the i n t e r e s t s of the c h i l d r e n o f divorced p a r e n t s . H A review of non-legal l i t e r a t u r e revealed only three published reports o f serious attempts to get some data regarding the e f f e c t of d i v o r c e on c h i l d r e n . 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 o f a t t i t u d e t e s t s used on Washington h i g h school students i n an attempt to d i s c o v e r i f the a d j u s t ment o f c h i l d r e n 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 t h a t of c h i l d r e n 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, " J u v e n i l e Crime - An Approach to S o l v i n g Some Fundamental Problems Through Changes i n Divorse Laws," Oregon Law Review, v o l . 36 (February 1957), p. 98. . ii Lawrence S. Kubie, " P r o v i s i o n s f o r Care of C h i l d r e n o f Divorced Parents: A new Legal Instrument," Yale Law J o u r n a l , v o l . 73, no. 7(June 1964), p. 1197. 12 F. Nye, " C h i l d Adjustment i n Broken and i n Unhappy Unbroken Homes," Marriage and Family L i v i n g , v o l . 19(Nov.l957), pp. 356-361. ~  - 68 contrary to f o l k knowledge, the adjustment o f c h i l d r e n i n homes broken by d i v o r c e i s not more d i f f i c u l t o r unsuccessful than i n homes broken otherwise."  13  Secondly, Thomas P. Monahan d i d  a survey o f comparative delinquency data i n P h i l a d e l p h i a f o r 14  the years 1916, 1927, 1940, and 1956.  A t the beginning o f  t h i s p e r i o d the major reason f o r homes being broken was the death o f a parent, i n the more recent years the home are f r e q u e n t l y broken by s e p a r a t i o n o r d i v o r c e . He concluded, The trend i n these P h i l a d e l p h i a data g i v e no support to the b e l i e f i n the o v e r r i d i n g importance o f 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 p a t t e r n o f y o u t h f u l d e l i n quency. A r a t h e r r e g u l a r and high p r o p o r t i o n o f delinquent c h i l d r e n have come from broken homes over the past f o r t y years i n P h i l a d e l p h i a . The changing character o f broken homes has not a l t e r e d the overa l l p r o p o r t i o n found.15 F i n a l l y , there i s the r e p o r t by Judson T. Landis on a survey o f the a t t i t u d e s and ideas o f 295 u n i v e r s i t y students i n C a l i f o r n i a who were the c h i l d r e n o f divorced parents." ^ 1  He comments,  I n a n a l y z i n g the data i t became c l e a r t h a t c h i l d r e n o f d i v o r c e cannot be treated as a homogeneous group. Divorce o f parents a f f e c t s c h i l d r e n i n v a r i o u s ways, *""*Nye, p. 360. 14 .Ihomas P. Monahan, "The Trend i n Broken Homes Among Delinquent C h i l d r e n , " Marriage and Family L i v i n g , v o l . 19 (November 1957), pp. 362-65. I b i d . , p. 364. 16 Judson T. Landis, "The Trauma o f C h i l d r e n when Parents Divorce," Marriage and Family L i v i n g , v o l . 22 (February I960), pp. 7-13; 1 5  - 69 depending upon such f a c t o r s as the age o f the c h i l d a t the time o f the d i v o r c e and how the c h i l d viewed the home s i t u a t i o n before he learned o f the p o s s i b l e divorce.17 Thus, the o n l y research reported i n the l i t e r a t u r e suggests that c h i l d r e n are adversely a f f e c t e d by anything that breaks up t h e i r f i r s t f a m i l y : death, d i v o r c e , o r s e p a r a t i o n , and that they are e q u a l l y harmed i f t h e i r parents remain unh a p p i l y l i v i n g together.  This would support the i d e a that  every attempt should be made to provide e x t r a community couns 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 t r u e 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 o f couples who are parents.  There  i s l e s s evidence here to support those who b e l i e v e t h a t the d i v o r c i n g parent i s l e s s capable than other parents o f judging the best i n t e r e s t s o f h i s 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 o r even i n Canada.  There appears to be almost no  published research on Canadian d i v o r c e s . I n the 176 pages o f 18  The Family i n Canada  xo  prepared f o r the Vanier Conference on the  Family, the divorced and separated f a m i l y 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 m a t e r i a l showing the f l u c t u a t i o n i n the d i v o r c e r a t e ) . *"\andis, p. 7. 18 F r e d r i c k E l k i n , The Family i n Canada, Ottawa, Canadian Conference on the Family, 1964.  - 70 The most d e t a i l e d a p p r a i s a l has been published i n the f i n a l r e p o r t o f the Commission on C h r i s t i a n Marriage and 1  9  Divorce o f the United Church o f Canada. '  I t s comment on the  lack o f a v a i l a b l e research i s worth r e p e a t i n g : "there are scores o f Canadians conducting research i n the breeding and care o f p o u l t r y and l i v e s t o c k .  There does not appear to be one f u l l -  time research person i n Canada devoting a t t e n t i o n to data about 20 marriage and i t s problems." This study takes time to consider 21 the p o s s i b l e problems o f the c h i l d r e n o f d i v o r c i n g parents, 22 and, o f parents without partners o r with common-law partners. I t supports the p o s i t i o n o f those who b e l i e v e that the courts need more expert information than i s p r e s e n t l y a v a i l a b l e to them; We urge that d i v o r c e courts use the s e r v i c e s o f people with s p e c i a l t r a i n i n g and s k i l l i n f a m i l y matters. The m i n i s t e r , the t r a i n e d s o c i a l i n v e s t i g a t o r , the marriage c o u n s e l l o r , the p s y c h o l o g i s t , the p s y c h i a t r i s t and others, have much to c o n t r i b u t e when marriages a r e i n trouble.23 The o n l y type o f organized information t h a t was found about divorced persons i n B r i t i s h Columbia was o f 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 o f C h r i s t i a n Education, United Church o f Canada, 1962. 2 0  I b i d . , p. 4.  2 I  I b i d . . pp. 30-31.  22 23  I b i d . , pp. 32-33. I b i d . . p. 17.  - 71 variety.  Thus the United Church report included s t a t i s t i c s  submitted by United Church m i n i s t e r s regarding divorced persons 24 marrying i n t h e i r churches i n 1950 and I960.  I n B. C. i n  1950, 10.57o of the brides and grooms had been d i v o r c e d , and i n 1960 23.17. o f them had been.  ( I t should be remembered that  because of the r e g u l a t i o n s of other denominations United Church m i n i s t e r s are o f t e n asked to perform marriage ceremonies f o r non-members when a divorced person i s involved.)  This i s a  f a r higher percentage than i s reported from any other p a r t of Canada s i n c e i n 1960 the next c l o s e s t c i t y , Toronto, had reached 10.37..  just  I t i s f a i r l y obvious from these f i g u r e s that r e -  marriage not i n f r e q u e n t l y provides the c h i l d r e n of the d i v o r c e w i t h a two-parent f a m i l y again. The m a t e r i a l obtained during the 1961 census provided a l i t t l e information about a v a r i e t y o f B r i t i s h Columbia family 25 „ groups.  Some comparisons are p o s s i b l e between the three types  of one-parent f a m i l i e s ; d i v o r c e d , widowed, and ". . . o n l y a t home".  The l a t t e r presumably contains a l a r g e number of  separated  o r deserted spouses as w e l l as a l i m i t e d number whose separation i s n e i t h e r voluntary nor permanent ( i . e . , separated by work requirements, c h r o n i c a l l y h o s p i t a l i z e d , o r imprisoned spouses). 24 Commission on C h r i s t i a n 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 l e a s t 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 a t home" group.  They a l s o provide f o r a  s l i g h t l y s m a l l e r f a m i l y , and have a b e t t e r chance o f s h a r i n g a r e l a t i v e ' s home.  T h e i r f i f t e e n to eighteen year o l d c h i l d r e n are  more l i k e l y to be s t i l l i n school than are those o f the widowed o r the separated parent.  S t a t i s t i c a l l y , t h e r e f o r e , i t seems  that the " c h i l d r e n o f the marriage' that ends i n d i v o r c e , on the average, are provided f o r r a t h e r more s a t i s f a c t o r i l y than the c h i l d r e n o f a marriage which ends i n any other way.  However,  an a l t e r n a t e i n t e r p r e t a t i o n o f these s t a t i s t i c s i s e q u a l l y 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 c l a s s e s can best a f f o r d to pay f o r a d i v o r c e . No other s t a t i s t i c a l o r researched s o c i a l i n f o r m a t i o n appears to e x i s t about the divorced f a m i l y .  Thus the e n t i r e  question o f how present procedure and l e g i s l a t i o n a f f e c t s the c h i l d r e n o f the marriage, and o f how c o r r e c t l y "the best i n t e r e s t s o f the c h i l d " are assessed, remains a matter o f o p i n i o n and personal experience.  A f u r t h e r look can be taken a t some o f the  cases decided i n B. C. courts to d i s c o v e r what type o f d e c i s i o n s are being made. The most i n t e r e s t i n g aspect o f the more recent d e c i s i o n s regarding custody i n B.C. courts i s the l a c k o f r i g i d i t y shown.  - 73 The f a c t that the mother i s the defender*t w i l l not prevent 26 custody of younger c h i l d r e n being awarded to her. In recent y e a r s , a judge has e x e r c i s e d h i s p r e r o g a t i v e 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 c o n t r a s t i n g methods of p r o t e c t i n g c h i l d r e n .  In 1942 the judge had decided  that he could not leave c h i l d r e n with the f a t h e r and corespondent.  He b e l i e v e d they would keep i n touch w i t h t h e i r  mother, and the b i t t e r n e s s o f her f e e l i n g s toward the corespondent 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 c h i l d r e n satisfactorily herself.  He awarded custody to her on c o n d i t i o n  t h a t she and the c h i l d r e n l i v e i n the home o f her s i s t e r , w i t h whose fondness f o r the c h i l d r e n and understanding a t t i t u d e the 27 judge had been impressed.  In 1962 a judge considered another  s e t of parents, n e i t h e r of whom seemed very r e s p o n s i b l e , and awarded custody o f 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 d e s i r e d , 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 w i t h her care of the c h i l d . Wilson v s . Wilson and F i s h e r (1957) 21 WWR 281; Graham vs. Graham and Detta (1957) 22 WWR 372. 27  K n o x vs. Knox (1942) 3 WWR  612.  28 Hargreaves v s . Hargreaves and Cassiday (1960) 32 WWR  159.  - 74 -  These cases seem to have been decided on the basis o f evidence presented i n the court and there i s nothing to suggest that custody reports were obtained from the Superintendent o f C h i l d Welfare. What a d d i 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?  Provincially,  the i n s t r u c t i o n s suggest t h a t the s o c i a l worker should f o l l o w the o u t l i n e used f o r f o s t e r home i n v e s t i g a t i o n s , p a r t i c u l a r l y noting the emotional and p h y s i c a l environment, and add a warning 29 that hearsay and rumours should not be embodied i n the r e p o r t . The f o s t e r home i n v e s t i g a t i o n o u t l i n e covers the background o f the "parents" i n v o l v e d , t h e i r m a r i t a l s i t u a t i o n , h e a l t h , and a t t i t u d e s 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 o f the home i n c l u d i n g other c h i l d r e n .  The  number o f v i s i t s a worker w i l l make to acquire t h i s i n f o r m a t i o n w i l l vary.  L o c a l l y , the s o c i a l worker's immediate s u p e r v i s o r  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 s u p e r v i s o r , and normally nowadays i t i s forwarded on to the judge without any change. That t h i s s e r v i c e 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 a t l e a s t one recent j u d i c i a l d e c i s i o n . The boy i n v o l v e d was almost ten years o l d and had been l i v i n g w i t h h i s f a t h e r s i n c e 29 B r i t i s h Columbia, Department o f 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 his  p a r e n t s s e p a r a t e d when he was e i g h t and o n e - h a l f y e a r s o l d .  His  c u s t o d y had been awarded t o h i s f a t h e r when h i s u n c o n t e s t e d  d i v o r c e was o b t a i n e d a s h o r t time l a t e r .  During the year  fol-  l o w i n g t h e s e p a r a t i o n t h e f a t h e r f i r s t p l a c e d h i s son w i t h a n o t h e r s e p a r a t e d 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 t h e woman, h e r c h i l d r e n , and h i s s o n i n a l s o . ( M a r r i a g e was i m p o s s i b l e because t h e whereabouts o f h e r d e s e r t i n g husband was unknown and she was, t h e r e f o r e , u n a b l e t o obtain a divorce.)  The f i r s t w i f e a few months l a t e r r e m a r r i e d  and a p p l i e d f o r t h e c u s t o d y o f h e r son.  A p p a r e n t l y , t h e r e were  reasons to doubt t h e s t a b l e c h a r a c t e r o f b o t h h e r s e l f and h e r new husband.  The s o c i a l worker's  comment t h a t t h e f a t h e r ' s  common-law w i f e i s "an u n u s u a l l y good mother" i s mentioned by the judge i n s u p p o r t o f h i s d e c i s i o n n o t t o award c u s t o d y t o t h e n a t u r a l mother."^  From t h e s e examples, i t i s apparent t h a t , i n  B r i t i s h Columbia a t p r e s e n t , as a r e s u l t o f f o l l o w i n g t h e p r i n c i p l e o f " t h e b e s t i n t e r e s t s o f t h e c h i l d " , d e c i s i o n s about c u s t o d y can v a r y g r e a t l y a c c o r d i n g t o t h e c i r c u m s t a n c e s o f i n d i v i d u a l cases. The l a s t case a l s o f o c u s e s on an e f f e c t o f t h e p r e s e n t d i v o r c e l e g i s l a t i o n which has n o t been d i s c u s s e d .  This i s the  Hind v s . H i n d and W i l s o n (",962) 31 DLR (2nd) 622.  - 76 p r o b a b i l i t y t h a t when people are unable to o b t a i n a d i v o r c e some w i l l enter a common-law r e l a t i o n s h i p and keep t h e i r c h i l d r e n w i t h them. such f a m i l i e s are.  No f i g u r e s e x i s t to show how numerous The c h i l d r e n i n these s i t u a t i o n s enjoy  the advantage o f l i v i n g i n a two-parent f a m i l y , but they s u f f e r s e v e r a l s o c i a l disadvantages.  A change o f t h e i r surname by  adoption i s i m p o s s i b l e , t h e i r parent may f e e l g u i l t y and transmit 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 p r o t e c t i o n i f the r e l a t i o n s h i p breaks down. F i n a l l y the r e l a t i o n s h i p i s l i k e l y to r e s u l t i n a d d i t i o n a l c h i l d r e n who are i l l e g i t i m a t e .  These are the concealed v i c t i m s  o f the present d i v o r c e l e g i s l a t i o n . This review has been concerned with the c h i l d r e n o f the marriage which ends i n d i v o r c e , and p a r t i c u l a r l y w i t h the custody d e c i s i o n s made as permitted i n the d i v o r c e l e g i s l a t i o n .  In  B r i t i s h Columbia, no a c t i o n need be taken by the court regarding the c h i l d r e n , 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 i n v e s t i g a t e f u r t h e r .  Only when custody i s being contested i s  the judge c e r t a i n to hear witnesses, and p o s s i b l y to ask the Superintendent o f C h i l d Welfare f o r custody r e p o r t s .  Case  d e c i s i o n s based on "the best i n t e r e s t s o f the c h i l d " a r e v a r i e d . The modem s t r e s s on the c h i l d , r a t h e r than the parents, i s i n c r e a s i n g l y r a i s i n g the question o f whether o r not with present  - 77 procedures the judge can o b t a i n s u f f i c i e n t i n f o r m a t i o n to make a good d e c i s i o n .  Concern i s a l s o f e l t f o r those c h i l d r e n  regarding whose custody no d e c i s i o n i s requested. Unfortunately, l i t t l e f a c t u a l evidence o f any type i s a v a i l a b l e about the c h i l d r e n o f divorced parents so no conc l u s i o n s are p o s s i b l e .  Various suggestions are being made  regarding methods o f a d j u s t i n g court procedures so that more a t t e n t i o n i s paid to the c h i l d r e n .  The l i t t l e data found  suggested that much more e f f o r t should be put i n t o h e l p i n g couples achieve a true r e c o n c i l i a t i o n when there a r e c h i l d r e n involved.  For t h i s reason those suggestions which i n v o l v e  methods to ensure t h a t couples see a m a r i t a l c o u n s e l l o r before before they can s t a r t d i v o r c e proceedings seem the most d e s i r able.  Such a c o u n s e l l o r could then d i s c u s s planning f o r the  c h i l d r e n w i t h the parents i f d i v o r c e was necessary, r e f e r the few parents and c h i l d r e n who r e q u i r e d more help to s u i t a b l e r e sources, and r o u t i n e l y supply the judge w i t h an observer's o p i n i o n o f the plans the parents wish to make. One other group o f c h i l d r e n i s a f f e c t e d by present d i v o r c e l e g i s l a t i o n although no i n f o r m a t i o n i s a v a i l a b l e about them. When present l e g i s l a t i o n prevents couples from o b t a i n i n g a l e g a l d i v o r c e , they tend to enter a common-law r e l a t i o n s h i p .  The  e f f e c t o f t h i s on t h e i r c h i l d r e n ' 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 o f the new r e l a t i o n s h i p i s a subject which needs more c o n s i d e r a t i o n .  The present d i v o r c e 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 f a m i l y t i e s f o r the c h i l d r e n o f the marriage.  CHAPTER VI EXPERT OPINION  Method I t was f e l t by the authors that p o i n t s r a i s e d 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  clarification  that could be obtained by i n t e r v i e w i n g a number of people who had frequent contact with persons seeking a d i v o r c e . viewing schedule was designed  An i n t e r -  to tap the experts' o p i n i o n s .  was subdivided i n t o seven s e c t i o n s :  It  a general one to q u i c k l y  seek out the main areas o f d i s s a t i s f a c t i o n ; a s e c t i o n each on grounds and procedure designed to a s c e r t a i n whether people were d i s s a t i s f i e d w i t h the s o l e ground o f a d u l t e r y , the method of t r i a l o r both; and s e c t i o n s on f i n a n c i a l c o s t s , d o m i c i l e , and the custody o f c h i l d r e n . A short s e c t i o n e n t i t l e d " M o r a l i t y , the Church and Divorce" was included to t r y and i l l i c i t  the  current C a t h o l i c 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 categories:  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, m i n i s t e r s , and l a y people i n v o l v e d i n d i v o r c e reform movements.  Two members from each category were i n t e r v i e w e d ,  - 80 except i n the category of l a y people where o n l y the President o f the Divorce Reform League was contacted.  As so many o f our  respondents wished to remain anonymous, e i t h e r because o f t h e i r o f f i c i a l p o s i t i o n o r p r i v a t e 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 p u b l i c representatives had had l e g a l t r a i n i n g . As s t a t e d , our experts were not chosen randomly from a l i s t o f members of t h e i r p r o f e s s i o n s , but r a t h e r because of t h e i r known concern w i t h and knowledge o f d i v o r c e matters. Hence i t i s p o s s i b l e that as a group they may  express more  l i b e r a l views than the bulk of the population. I n 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 r e s -  pondents but the i n t e r p r e t a t i o n was t h e i r d e c i s i o n .  Depending  on the f u l l n e s s o f the respondent's answers, i n d i v i d u a l quest i o n n a i r e s took anywhere from one-half to one and one-half hours to complete. Our method of recording has been to s t a t e 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 p r o f e s s i o n o f the respondent was identified.  General conclusions and comments appear i n a sep-  arate s e c t i o n at the end of the chapter.  - 81 Interview Results General 1.  From your experience, what are the major reasons people seek divorce? Seven o f the respondents gave i n c o m p a t a b i l i t y as the  major reason f o r d i v o r c e .  Four others wished to express t h i s  cause i n sharper terms and p r e f e r r e d the terms  "inflexibility",  "disharmony, o r immaturity" (the l a s t o f these was also given as an underlying reason by two o f the seven who used "incompatability"). Two respondents, both lawyers, avoided i n c o m p a t a b i l i t y a l t o g e t h e r ; one o f 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 d i s t u r b e d to some degree.  The o t h e r lawyer f e l t that f i n a n c i a l problems were  the background cause of three-quarters o f the cases seen as o f t e n 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 ( f o u r ) and separation (three).  I n view o f the grounds on which d i v o r c e i s granted i n  B.C., i t i s i n t e r e s t i n g  that o n l y two respondents, both o f them  - 82 i n the l e g a l p r o f e s s i o n , even mentioned a d u l t e r y as being among the major causes f o r d i v o r c e .  ********** 2.  Do you know o f cases where people who wish to are unable to o b t a i n a divorce? Do you know the reason? Only three respondents r e p l i e d n e g a t i v e l y to t h i s ques-  t i o n , a l l the r e s t knew cases where one spouse, a t l e a s t , wished a d i v o r c e but could not o b t a i n i t . The most f r e q u e n t l y mentioned reason ( f i v e ) was the r e f u s a l o f both spouses to give the other grounds, and two more broadly stated r e p l i e s doubtless intended to i n c l u d e 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 d i v i d e d such cases he knew i n t o two types:  those where r e l i g i o u s scruples prevented the couples  a c t i n g , and those where he f e l t the b a s i c reason was h o s t i l i t y . The next two most mentioned reasons were d e s e r t i o n with the spouse*s present whereabouts being unknown ( f o u r plus the two broad responses), and economic reasons ( f o u r ) .  The next  most mentioned reason (three plus one o f the broad answers) was r e f u s a l o f one spouse to take a c t i o n although grounds already existed.  Long imprisonment, lengthy mental i l l n e s s , and a  problem because o f d o m i c i l e were the o t h e r reasons c i t e d .  **********  - 83 3.  Are you s a t i s f i e d o r d i s s a t i s f i e d w i t h e x i s t e n t d i v o r c e 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 w i t h present subs t a n t i v e d i v o r c e l e g i s l a t i o n , and o n l y two people were s a t i s f i e d w i t h the present d i v o r c e procedure.  One o f these two,  however, made i t c l e a r l a t e r i n the i n t e r v i e w that he was s t r o n g l y opposed to one aspect o f B.C.'s present procedure. The major o b j e c t i o n (nine) was that wider range o f grounds should e x i s t as the present law was not r e l a t e d to reality.  Almost as many respondents ( e i g h t ) complained i n some  form about the e f f e c t the present law had i n lowering the part i c i p a n t s ' s e l f - r e s p e c t o r i n having d e t r i m e n t a l e f f e c t s on the children.  Two o t h e r o b j e c t i o n s were r a i s e d , each from a couple  o f respondents; f i r s t , that d i s r e s p e c t f o r the law i s encouraged, and second, that a proper understanding o f the meaning o f marriage i s discouraged.  ********** Grounds 1.  I n your experience, i s a d u l t e r y on the p a r t o f one p a r t n e r of the marriage the main cause o f m a r i t a l breakdown? I n the o p i n i o n o f a l l respondents, a d u l t e r y i s a symptom  r a t h e r than the cause o f m a r i t a l breakdown.  One o f the m i n i s t e r s  - 84 expressed the view that the adulterous partner sometimes used t h i s approach to shock h i s spouse i n t o changing.  ********** 2.  Do you consider uncondoned a d u l t e r y should be the s o l e basis f o r granting a divorce?  No one f e l t that uncondoned a d u l t e r y should be the s o l e grounds f o r granting a divorce.  ********** 3.  I f the answer to question 2 i s no, on what o t h e r 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 o f o p i n i o n .  I n general,  most f e l t that the grounds used i n England - c r u e l t y , d e s e r t i o n , a d u l t e r y , and i n c u r a b l e mental i l l n e s s - were s a t i s f a c t o r y grounds.  However, eight o f the t h i r t e e n people interviewed  felt  that complete m a r i t a l breakdown, g e n e r a l l y r e f e r r e d to as i n c o m p a t a b i l i t y , should also be a ground.  The Roman C a t h o l i c  p r i e s t was among the eight respondents favouring divorce i n cases where s u i t a b l e evidence shows complete m a r i t a l breakdown.  **********  4.  85 -  Do you t h i n k condonation, connivance and c o l l u s i o n a r e sound a b s o l u t e bars to d i v o r c e ?  Seven people f e l t t h a t condonation, c o l l u s i o n and conn i v a n c e were sound a b s o l u t e bars under the p r e s e n t system o f law.  G e n e r a l l y , i t was thought  t h a t c o l l u s i o n was i n t e r p r e t e d  l i b e r a l l y and l i m i t e d to a f r a u d b e i n g p e r p e t r a t e d on t h e c o u r t s . I t was thought  that condonation o f p r e v i o u s a d u l t e r y should be  assumed i n cases o f " 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 t h a t a s i n c e r e attempt a t r e c o n c i l i a t i o n c o u l d n o t o c c u r i f one p a r t n e r h e l d t h e whip o f d i v o r c e o v e r the o t h e r .  The f a c t t h a t  condoned a d u l t e r y can be r e v i v e d by a f u t u r e m a r i t a l o f f e n s e was f e l t to be s u f f i c i e n t p r o t e c t i o n should one o f the p a r t i e s wish to commence proceedings f o r d i v o r c e a f t e r f a i l u r e o f " t r i a l reconciliation". Six sound b a r s .  people f e l t t h a t the t h r e e a b s o l u t e bars were n o t They f e l t t h a t the s t a t e o f t h e d i v o r c e laws i n  Canada were such to f o r c e many s e e k i n g 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. these bars was f e l t  Having  to add to t h e s t u p i d i t i e s o f the law.  **********  - 86 5.  Do you know any cases where a d i v o r c e was refused on grounds o f condonation, connivance o r c o l l u s i o n ? how many?  I f so,  I f so, what were the circumstances surrounding  the case? Only lawyers and judges knew o f cases where d e f i n i t e l y one o f the absolute bars l e d to the d i v o r c e being refused. Connivance was seldom evoked but cases were refused on the grounds o f 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 i n t e r p r e t e d as an i n t e n t to commit a fraud on the court and would refuse a d i v o r c e when t h i s i n t e n t was present.  Condonation has also been used as a bar.  Interestingly  one lawyer f e l t the judges were l e n i e n t 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 n o t . In d i s c u s s i n g c o l l u s i o n , one respondent expressed the b e l i e f that lawyers " s e t up" t h e i r cases so that they never had f i r s t hand knowledge o f any c o l l u s i o n .  For example, a  lawyer may r e f u s e to handle a case because the couple have made a c o l l u s i v e bargain, but the couple l e a r n by the experience and the next lawyer consulted does not hear o f the agreement.  ********** 6.  Do you know any cases where the p l a i n t i f f was refused a d i v o r c e on the s o l e grounds o f a d u l t e r y admitted i n w r i t i n g to the p r e s i d i n g judge?  - 87 No one knew o f a case where a judge refused to e x e r c i s e h i s d i s c r e t i o n i n favor o f the p l a i n t i f f except where the defendant had c r o s s - p e t i t i o n e d .  To quote one judge: "we t r y  to grant a decree when the court f e e l s the marriage has had the course".  ********** 7.  Given that people are confronted with the problem o f wishing to d i s s o l v e t h e i r marriage, do you t h i n k they see the law as a procedure enabling them to do t h i s l e g a l l y o r as presenting a f u r t h e r problem o r hurdle r e q u i r i n g circumvention i n the form o f dishonesty and fraudulent  behavior  i n order to o b t a i n t h e i r r e l e a s e 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 o b t a i n t h e i r ends. was i n v o l v e d .  However, not everyone f e l t that fraud o r dishonesty One respondent s a i d 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 procedure. The one respondent who f e l t that the law was seen simply as a method o f enabling people to get a d i v o r c e , was o f the o p i n i o n 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 " s e t up" divorce was a method s o c i e t y had found to gloss over the unpleasant f a c t  - 88 -  that many o f i t s most respectable c i t i z e n s were indeed a d u l terers . Both judges f e l t t h a t the l a r g e m a j o r i t y o f cases coming before them were bona f i d e .  Other respondents a l s o  expressed the o p i n i o n that u s u a l l y the a d u l t e r y was bona f i d e and that the d e c e i t s p r a c t i c e d 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.  T h e o r e t i c a l l y , the h o r r o r o f one spouse a t the  i n i q u i t y o f the adulterous spouse compelIs h e r to take a c t i o n . In r e a l i t y , the a d u l t e r y i s o f t e n not the matter which has caused, o r even contributed to the m a r i t a l breakup as i t has occurred a f t e r the couple has separated.  One lawyer voiced the  o p i n i o n that when one spouse o r the other a c t u a l l y began divorce proceedings, i t was because they o r t h e i r spouse was l i v i n g i n a common law r e l 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 o f remarriage occurred.  ********** Procedures 1.  Do you think the present system o f 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 e x p l o r a t i o n i n t o the causes o f m a r i t a l breakdown? No one f e l t that the present system o f t r i a l r e s u l t e d i n  a s u f f i c i e n t e x p l o r a t i o n o f the causes o f the m a r i t a l breakdown. One respondent d i d add, that i n defended divorces the e x p l o r a t i o n  - 89 i s q u i t e thorough but i s d i n e , i n c i d e n t l y , i n the course o f proving other p o i n t s .  As a judge pointed o u t , the p l a i n t i f f  i s e n t i t l e d to a d i v o r c e i f the a d u l t e r y i s proven and the t r i a l procedure i s designed to prove a d u l t e r y as q u i c k l y and efficiently  as p o s s i b l e .  ********** 2.  In'your experience, what are the r e a c t i o n s o f people when they take the matter o f a d u l t e r y i n t o court? Three respondents d i d not wish to express an o p i n i o n  about t h i s .  I n t e r e s t i n g l y , a l l three are p r 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 t h a t , 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 c y n i c a l a t having s u c c e s s f u l l y deceived the courts.  A p s y c h i a t r i s t f e l t that  w h i l e 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 o f h o s t i l i t y .  Both judges were o f the o p i n i o n that most  people were disturbed by t h e i r court appearance. F r i d a y i s a p r e t t y sad day around here.  **********  To quote one -  -  3.  90  -  In your opinion, what e f f e c t , i f any, do the present divorce laws and procedures have on the c i t i z e n ' s respect f o r the law of the land?  Ten respondents f e l t that the present divorce laws lessened the c i t i z e n ' s respect f o r law generally; one lawyer did not f e e l that people's respect f o r the lav; was lessened, except when the divorce was  i n any  way  fraudulent.  Neither judge f e l t that the people's respect f o r 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 respect f o r the law lessened. average c i t i z e n was  their  The other judge f e l t that the  aware that the courts were unhappy with the  s i t u a t i o n and were trying to e f f e c t change.  Also, he did not  f e e l any d i s s a t i s f a c t i o n with the divorce laws carried over to other laws.  ********** 4.  What alternative  type of t r i a l proceedings,  deem appropriate i n divorce Only one person was  i f any, do you  proceedings?  e n t i r e l y 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 s a t i s f i e d  - 91  -  with the present system o f t r i a l but f e l t that i t should occur at the County Court l e v e l , f r e e i n g the Supreme Court f o r more important business. A judge favoured a system whereby the couple could be r e f e r r e d to a marriage c o u n s e l l o r before the case was s e t f o r trial.  He c i t e d the Los Angelos courts as a s a t i s f a c t o r y  example o f what he saw as appropriate. The o t h e r eight respondents f e l t that the adversary system o f t r i a l was not appropriate to d i v o r c e cases, and that c o n c i l i a t i o n courts o r 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 , m i n i s t e r s , 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 c o u n s e l l i n g s e r -  v i c e s 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 s e r v i c e s  should be compulsory, e s p e c i a l l y when c h i l d r e n were i n v o l v e d . As one would expect, respondents t r a i n e d i n the l e g a l p r o f e s s i o n were more i n c l i n e d to r e t a i n the adversary system o f t r i a l , although two o f the strongest advocates o f the "board" system were p r a c t i c i n g lawyers.  **********  - 92 F i n a n c i a l Costs o f Divorce 1.  Proceedings  What i s the cost o f o b t a i n i n g an undefended divorce? The lowest f i g u r e quoted f o r costs was $150 f o r the  lawyer's fee alone. and could be low. extra.  This f i g u r e was c i t e d by a s o c i a l worker Court disbursements and d e t e c t i v e fees were  The lawyers interviewed charged between $350 and $400  excluding disbursements.  Fees o f up to $750 f o r an undefended  d i v o r c e were known.. In an uncomplicated $125.  case a d e t e c t i v e w i l l cost $75 to  I f a person must be watched over a long period o f time,  t h i s cost r i s e s considerably.  As one would expect, respondents  who d e a l t p r i m a r i l y with the lower income groups quoted lower f i g u r e s than those whose c l i e n t e l were from the middle and upper classes.  ********** 2.  What i s the p o t e n t i a l cost to e i t h e r o r both p a r t n e r s , o f a defended divorce? The costs of a defended d i v o r c e was a t l e a s t double that  of the undefended d i v o r c e and could run to w e l l over $2000, depending on the length o f t r i a l , the d e t e c t i v e fees e t c .  **********  - 93 -  3.  On what basis are costs awarded by the court as between the p a r t i e s to a divorce proceeding?  The respondents who answered t h i s question (lawyers and judges) i n d i c a t e d that the w i f e , whether p l a i n t i f f o r defendent, was e n t i t l e d to h e r costs unless h e r case was found to be f r i volous.  Even then her lawyer must be found to be a c t i n g i n bad  f a i t h to be deprived o f h i s fee, which the husband i s l i a b l e for.  The husband, o f 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 p r i v a t e estate. Many f e l t that t h i s automatic g r a n t i n g o f the costs to the woman was u n f a i r i n the l i g h t o f today's s o c i a l c o n d i t i o n s . One o f 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 l e s s i n c l i n e d to be generous about the settlement i f he had to pay the c o s t s .  Also husbands paying  support o f t e n could not a f f o r d to pay costs and support and f e l l hopelessly behind i n support payments and were faced w i t h the threat o f j a i l .  I f the husband d i d go to j a i l , the w i f e o f  course received no support and by the time the husband was r e - leased, he was so f a r behind i n h i s payments that the temptation to leave the province o r country was overwhelming.  **********  -  4.  94 -  Do you know o f cases where the commencement o f d i v o r c e proceedings was delayed because o f the i n a b i l i t y o f the person to a f f o r d the necessary l e g a l and court fees?  How  common i s t h i s ? A l l respondents had heard o f o r p e r s o n a l l y known o f people where the commencement o f proceedings had been delayed by l a c k o f 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 q u i t e common, e s p e c i a l l y among deserted wives.  *********** 5.  Do you know cases where commencement o f d i v o r c e proceedings was prevented by reason of the f i n a n c i a l circumstances o f a person who would otherwise take such proceedings?  How  common i s t h i s ? 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 d i v o r c e e v e n t u a l l y got the money.  A lawyer d i d not f e e l even deserted wives could not  r a i s e the money.  Apparently, banks w i l l lend the woman money  on the basis o f a lawyer's l e t t e r . The r e s t o f the sample, except f o r two who had no o p i n i o n , knew cases where people never commenced d i v o r c e proceedings because o f l a c k o f money.  Again, no s t a t i s t i c s were a v a i l a b l e  -  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 c o s t s , a w i f e must pay the lawyer  a t 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.  I n your o p i n i o n , have problems i n r e l a t i o n to proof o f d o m i c i l e increased the fees f o r divorce? The r e p l i e s to t h i s question v a r i e d according to the  occupation o f those interviewed.  Four respondents d i d not  know: the m i n i s t e r s 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 o f those engaged i n p o l i t i c a l a c t i o n believed the answer was a f f i r m a t i v e .  The two p r 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 s e v e r a l o f them went on to point out that other costs to the c l i e n t could i n c r e a s e i f d o m i c i l e w was d i f f i c u l t to prove and i t was necessary to o b t a i n 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 , e t c .  ********** 2.  What i s your o p i n i o n concerning the f a c t that a w i f e has no d o m i c i l e other than that o f h e r 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 o f those interviewed s a i d c l e a r l y that a woman should be able to have h e r own d o m i c i l e , and two more observed that the present law i s a r c h a i c .  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 p r o f e s s i o n a l l y i n volved w i t h the law knew a v a r i e t y o f devices a v a i l a b l e f o r overcoming the problem i n many cases.  The main suggestion f o r  s o l u t i o n seemed to be the idea that the w i f e should be f r e e to e s t a b l i s h h e r own d o m i c i l e , although some o f the respondents foresaw d i f f i c u l t i e s a r i s i n g out o f t h i s .  One o f those engaged  i n p o l i t i c s suggested Canada-wide d o m i c i l e .  ********** 3.  Do you know o f cases where the cost i n v o l v e d i n going to the husband's d o m i c i l e has meant a woman was unable to secure a divorce? The m a j o r i t y o f the respondents gave an a f f i r m a t i v e  answer.  Only one m i n i s t e r 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 r e p l y i n g f e l t that i n v a r i a b l y with the combination o f a good lawyer and a r e a l d e s i r e f o r d i v o r c e , t h i s problem d i d not present an impassable b a r r i e r .  On the  - 97 o t h e r hand, two o t h e r s i n t h e l e g a l p r o f e s s i o n each knew o f a v e r y few c a s e s , as d i d t h e two p s y c h i a t r i s t s , w h i l e two p e o p l e 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 w o r k e r a l l s t a t e d they knew o f a l a r g e number o f c a s e s . There seems no doubt t h a t such a c o s t does p r e v e n t d i v o r c e i n some c a s e s , but t h e number o f p e o p l e a f f e c t e d i s uncertain.  ********** 4.  Do you know o f cases where a d i v o r c e has been postponed o r p r o c e e d i n g s n e v e r s t a r t e d because o f d i f f i c u l t y i n proving  involved  t h e d o m i c i l e o f a m i g r a n t husband o r one who  wishes t o evade t h e c o u r t ? This q u e s t i o n r e c e i v e d t h e same m a j o r i t y o f a f f i r m a t i v e answers as t h e p r e c e d i n g  one, w i t h t h e 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 sides"  switched  One s o c i a l worker knew o f no cases where t h e problem  was p r o v i n g d o m i c i l e , b u t o f cases where t h e spouse c o u l d n o t be l o c a t e d .  F i v e respondents knew o f a few c a s e s , and t h e 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 l a r g e numbers o f such c a s e s .  ********** C h i l d r e n and Custody 1.  What e f f e c t , i f any, has t h e i n a b i l i t y on c h i l d r e n o f t h e m a r r i a g e ?  t o g e t a d i v o r c e had  - 98 The r e p l i e s to t h i s question g e n e r a l l y i n d i c a t e d that the e f f e c t was undesirable.  One lawyer thought the r e s u l t  might be good, i f _ 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 s a t i s f a c t o r y adjustment to each other because they could not escape the marriage.  However, t h i s respondent a l s o pointed out that the  e f f e c t more o f t e n was bad f o r the c h i l d , because o f continued i n t e r n a l s t r i f e i n the f a m i l y , and t h i s was the o p i n i o n o f both p s y c h i a t r i s t s and both m i n i s t e r s . Several respondents pointed out that very o f t e n the parent who had the c h i l d r e n entered a common-law r e l a t i o n s h i p , although they v a r i e d i n t h e i r o p i n i o n as to the e f f e c t t h i s had on the c h i l d r e n . Three respondents pointed o u t that e i t h e r s t a y i n g t o gether because o f i n a b i l i t y to get divorced, o r g e t t i n g the d i v o r c e , had bad e f f e c t s on the c h i l d r e n .  * * ******* ** 2.  Do you know o f cases where parents with c h i l d r e n are l i v i n g i n a common-law r e l a t i o n s h i p because o f the i n a b i l i t y o f one o f the parents to get a divorce? this  continued?  I f so, how long has  - 99 A l l the respondents r e p l i e d t h a t they knew o f such cases, and a l l apparently knew o f more than one such case.  ( I n 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 s e c t i o n f o r three respondents was noted and the responses reviewed to see i f there was any reason f o r the v a r i a t i o n .  I t would seem that i n r e p l y i n g to  t h i s question the respondents based t h e i r answers on l e s s recent experience than they had e a r l i e r thought about, and a l s o l e s s i n t i m a t e acquaintance with the p a r t i e s i n v o l v e d . ) Some o f the respondents i n d i c a t e d that they had knowledge o f one hundred o r more such f a m i l i e s through t h e i r work.  That these were v e r y  o f t e n l o n g - l a s t i n g r e l a t i o n s h i p s continuing f o r years was a l s o brought out c l e a r l y i n t h e i r answers.  I n a few cases among them,  i t was suggested that the i n a b i l i t y to o b t a i n 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 i n v o l v e d "emotionally don't want", "won't be bothered", o r "could have got money sooner".  ********** 3.  I n cases you know where d i v o r c e s were obtained, d i d you f e e l more h e l p was needed i n planning f o r the c h i l d r e n than was a v a i l a b l e ? One person i n t e r e s t e d i n l e g i s l a t i v e a c t i o n r e p l i e d that  the plans made by the parents were u s u a l l y 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 f a m i l i e s to know. One m i n i s t e r and one lawyer f e l t that i n t h e i r experience the f a m i l i e s who needed help had been g e t t i n g i t from s o c i a l agencies and had been a b l e to make s a 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 h e l p was given to the parents and c h i l d r e n i n the e a r l y stages o f the m a r i t a l breakdown, so t h a t l e s s pressure was f e l t by the c h i l d r e n , even i f t h e i r parents d i d get d i v o r c e d. 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 c h i l d r e n , and to r e a d j u s t them when necessary >, without l e g a l custody d e c i s i o n s being asked f o r .  ********** 4.  Were custody reports obtained by the court from the Superintendent o f C h i l d Welfare, and i f so, d i d they cont r i b u t e to a wise d i s p o s i t i o n ? F i v e respondents were unsure whether o r not they knew  cases where reports had been obtained and t h e r e f o r e had no opinions. Two lawyers i n d i c a t e d that they were d e f i n i t e l y opposed to p e r m i t t i n g 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 o f the s o c i a l workers making the r e p o r t s .  This o p i n i o n was shared by one  - 101 s o c i a l worker, one o f those i n the f i e l d o f s o c i a l a c t i o n , and one member o f the j u d i c i a r y .  I n f a c t only two o f those r e p l y i n g  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 n o t i n g that the  lawyer's reason f o r favoring the reports i n d i c a t e s a misunderstanding o f the probable subsequent a c t i o n o f the s o c i a l workers, as the presumption was made that s u p e r v i s i o n o f the c h i l d r e n would continue.  A l s o , l a t e r remarks o f the s o c i a l worker sug-  gested that the r e p l y 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 i n v e s t i g a t i o n made with regard to the welfare o f the c h i l d r e n as a c o n d i t i o n of granting a divorce decree? There was almost complete agreement that the court should  be so r e q u i r e d , but the a d d i t i o n a l comment showed that the question was r e c e i v i n g v a r y i n g i n t e r p r e t a t i o n s . Two o f the l e g a l p r o f e s s i o n pointed out that the d i v o r c e decree should not be c o n d i t i o n a l on t h i s , apparently t h i n k i n g o f problems i f i n v e s t i g a t i o n could not be promptly done, and one o f these r e s pondents had already suggested that plans f o r the c h i l d r e n be counselled by the welfare department, g e n e r a l l y without involvement.  court  One judge and one s o c i a l worker suggested t h a t  - 102 o n l y some cases should be i n v e s t i g a t e d . 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 o r marit a l c o u n s e l l o r s attached to the c o u r t , and two others wanted the nature o f the d i v o r c e 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 o t h e r suggestion you would l i k e to make whereby the i n t e r e s t s o f the c h i l d r e n o f divorced parents would be adequately protected? The r e p l i e s to t h i s 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 i d e a s , except those already discussed about how. F i v e s t r e s s e d some form o f p r o v i s i o n p e r m i t t i n g m a r i t a l couns e l l i n g to s t a r t as soon as couples s t a r t to think about d i v o r c e , the c o u n s e l l o r probably being attached to the c o u r t .  Three  wanted arrangement to ensure i n v e s t i g a t i o n o f proposed plans probably by more than one d i s c i p l i n e , such as "a panel o f experts". One person suggested that i f both parents were very a n t a g o n i s t i c to each other so the c h i l d r e n got used as weapons, the government should provide whatever s u b s i d i z a t i o n was necessary to enable the c h i l d r e n to be sent to p r i v a t e boarding schools  - 103 so they would be away from t h e i r parents f o r a l a r g e p a r t o f the year.  I t was f e l t t h i s would cost l e s s e v e n t u a l l y than  the present cost i n emotionally damaged c i t i z e n s .  Thinking o f  s i m i l a r types o f s i t u a t i o n s where one parent i s c l i n g i n g to possession o f a c h i l d c h i e f l y to h u r t the o t h e r parent, one s o c i a l worker suggested t h a t , f o r c h i l d r e n who were q u i t e young when d i v o r c e occurred, the court should be able to waive the consent to adoption of the parent who has been denied custody so t h a t d e s i r a b l e step-parent adoptions could be completed. * * * * * * * * * * M o r a l i t y . The Church, and Divorce 1.  Do you view marriage as a sacrament, a s o c i a l c o n t r a c t , o r some combination o f the two?  How does t h i s viewpoint a f f e c t  your f e e l i n g s 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 o f them i n d i c a t e d that p e r s o n a l l y they f e l t the sacramental element was the more important f a c t o r i n the combination.  One lawyer simply viewed  i t as a c o n t r a c t , and another s t a t e d that i t was simply a s t a t u s . G e n e r a l l y , the respondents s a i d that they t r i e d to view divorce objectively while i n t h e i r professional role.  Three  respondents (two o f whom had not mentioned personal s t r e s s on  - 104 the sacramental element) s a i d t h e i r own a t t i t u d e made them b e l i e v e that more care should be taken by s o c i e t y before perm i t t i n g marriage so that d i v o r c e would not so o f t e n be necessary.  ********** 2.  What p a r t do you f e e l churches o r r e l i g i o u s o r g a n i z a t i o n s play i n r e t a r d i n g o r advancing changes i n d i v o r c e law and procedure?  What p a r t , 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 d i v o r c e .  However,  there was a range o f 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 r e s -  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 c o n s t i t u e n t s think t h e i r church thinks on the i s s u e , no  one  having dared to t e s t t h e i r assumptions f o r a number o f years. The Protestant m i n i s t e r pointed out that the church leaders were more advanced today than many o f t h e i r  congregation  i n t h e i r i d e a s , and that there was an even l a r g e r mass o f people  - 105 who based t h e i r a t t i t u d e s 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 C a t h o l i c ) pointed out that the  A n g l i c a n Church, as much as the Roman C a t h o l i c , discouraged  change i n the d i v o r c e law, one o f them f e e l i n g the c l a i m that the  Roman C a t h o l i c a t t i t u d e prevented change was merely con-  venient scapegoating. The Roman C a t h o l i c p r i e s t explained that much thought has r e c e n t l y been given by h i s church to t h i s problem.  When the  o r i g i n a l marriage was simply a c i v i l c o n t r a c t a c i v i l d i v o r c e as a remedy to protect marriage and the f a m i l y was not unacceptable. Furthermore, where a c i v i l d i v o r c e 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 o f Europe these people a r e being admitted p r i v a t e l y to the sacrament.  The Roman C a t h o l i c Archbishop o f Cairo  presented a report l a s t f a l l which presented evidence that the e a r l y fathers allowed remarriage a f t e r d i v o r c e , and studies based on new i n s i g h t s a r e s t i l l i n progress. A d u l t e r y has never been accepted by the Roman C a t h o l i c church as a v a l i d ground f o r breaking a marriage (they think t h i s i s a P r o t e s t a n t m i s i n t e r p r e t a t i o n o f s c r i p t u r e ) , but hate i s a much g r e a t e r 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 b e t t e r p r e - m a r i t a l educ a t i o n and/or c o u n s e l l i n g a t l e a s t f o r those people g e t t i n g married i n a church, and a l s o marriage c o u n s e l l i n g .  One o f them  plus another respondent mentioned that the m i n i s t e r s should be b r i n g i n g the more recent views o f t h e i r church to the a t t e n t i o n of t h e i r  congregations.  **********  Conclusions and Comments General While those interviewed were s e l e c t e d because they were i n f i e l d s o f t h e i r p r o f e s s i o n o r avocation which increased  their  opportunity to meet divorced people, they were also chosen i n the expectation that they would see d i v o r c e from s e v e r a l 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 w i t h the present l e g i s l a t i o n .  A l l o f them had  known people who wanted d i v o r c e but who could not o b t a i n 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 d i v o r c e , although i t i s not preventing separation. None o f those interviewed believed a d u l t e r y was r e a l l y the cause o f d i v o r c e .  The consensus o f the m a j o r i t y was that  the n e c e s s i t y f o r d i v o r c e arose not from any s p e c i f i c s e t o f  - 107 a c t i o n s , but, from the personal f e e l i n g s , a t t i t u d e s , and react i o n s o f the two i n d i v i d u a l s concerned.  This would seem to  support the viewpoint of those reformers who say t h a t , although i n c r e a s i n g the number o f grounds on which d i v o r c e i s a v a i l a b l e i s b e t t e r 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 g e n e r a l l y observed t h a t people w i t h 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 t r a i n e d i n o t h e r p r o f e s s i o n s .  However, t h i s was  by no means a c l e a r - c u t 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 o f connivance, condonation, and collusion.  They were also l e s s i n c l i n e d to b e l i e v e that a large  number o f divorces were fraudulent.  Also the changes lawyers  envisioned tended to be more i n terms o f e n l a r g i n g the grounds on which d i v o r c e could be obtained r a t h e r than changing from an adversary system to a mutual consent system.  However, two o f  the lawyers were among our more r a d i c a l respondents.  The age  o f the more conservative respondents tended to be somewhat o l d e r than the mean.  Generally, however, the given responses would  seem to be a f u n c t i o n of p e r s o n a l i t y r a t h e r than p r o f e s s i o n o r age.  - 108 One concludes that the expert o p i n i o n was that a t very l e a s t grounds should be considerably expanded. the  Many f e l t that  adversary system o f t r i a l was i n a p p r o p r i a t e and d i v o r c e by  mutual consent should be allowed. However, the advocates o f d i v o r c e by mutual consent were not by any means undervaluing the  importance and s a n c t i t y o f the f a m i l y .  In fact, their  u s u a l c o n d i t i o n , that c o u n s e l l i n g be s t r o n g l y recommended and i n some cases compulsory, showed a r e a l concern with the f a t e o f 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 h a p p i l y a f t e r h o n e s t l y t r y i n g to r e c o n c i l e , the marriage should be d i s s o l v e d . The controversy around presumed fraud i n the form o f manufactured evidence o f a d u l t e r y was i n c o n c l u s i v e .  Lay people  had more tendency to f e e l i t was p r e v a l e n t than lawyers. judges f e l t most cases before them were bona f i d e .  The  One mentioned  t h a t , i n many cases, the proof o f a d u l t e r y was the e x i s t e n c e o f a common-law r e l a t i o n s h i p .  One lawyer f e l t the b i g problem was  a d u l t e r y on the p a r t o f both spouses and the h y p o c r i s y o f "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 s a i d  that when evidence was fraudulent i t was because o f extenuating circumstances; f o r example, to p r o t e c t an intended second w i f e , or because the husband being sued i s impotent o r homosexual, e t c . However, the hypocrisy of the law g e n e r a l l y was a t t e s t e d to by a l l respondents.  I t was f e l t that the very form o f t r i a l  - 109 gives the impression o f something being "put over" on the law. The law i m p l i e s that adultery i s a heinous offense.  Often,  however, both p a r t i e s are a d u l t e r e r s and one begs the courts discretion.  Also the t r i a l i s supposed to be an adversary  one, but i n a c t u a l f a c t i t i s o f t e n mutually agreed by the p a r t i e s that a d i v o r c e a t t h i s time i s d e s i r a b l e and they sometimes help to make grounds a v a i l a b l e . Also there should be no bargains made between the p a r t i e s to a d i v o r c e when, i n a c t u a l i t y , bargains o f a c o l l u s i v e nature o f t e n e x i s t but are not mentioned.  The law a l s o makes much o f i t s d e s i r e to p r o t e c t  the f a m i l y and e s p e c i a l l y to seek a f t e r the welfare o f the children.  I n court, the c h i l d r e n are mentioned o n l y i n passing  and c e r t a i n l y there i s no c o u n s e l l i n g s e r v i c e o f f e r e d to keep the f a m i l y together.  I t concerns i t s e l f w i t h a s i n g l e p h y s i c a l  a c t , 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 o f m a 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. F i n a n c i a l Costs o f Divorce Proceedings Although divorce i s construed as a redress f o r an unbearable wrong, i n a c t u a l i t y i t i s a luxury item.  To o b t a i n a  d i v o r c e 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  s t r u g g l i n g on inadequate and f l u c t u a t i n g incomes to r a i s e a f a m i l y  - 110 cannot a f f o r d a d i v o r c e .  This leads to one-parent f a m i l i e s  and common-law r e l a t i o n s h i p s amongst "the poor".  The very  existence o f these poor f a m i l y conditions i s o f t e n c i t e d as one reason f o r the troubles o f the delinquent c h i l d i n adjust i n g to the l a r g e r s o c i e t y .  Although we do not suggest a l e g a l  a i d system f o r d i v o r c e cases w i l l e r r a d i c a t e 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 o f these f a m i l i e s forming a more s t a b l e adjustment. Domicile Although the people interviewed were well-educated, and most h i g h l y t r a i n e d p r o f e s s i o n a l l y , some o f the same vagueness regarding the a c t u a l degree to which d o m i c i l e i s r e s p o n s i b l e f o r problems appeared as had been noted i n the l i t e r a t u r e . Obviously the l e s s c l o s e l y i n v o l v e d observers are vague about where a problem a r i s e s from the d i f f i c u l t y i n simply l o c a t i n g the spouse, o r from a d i f f i c u l t y i n proving d o m i c i l e .  The  general o p i n i o n was that some change should be made i n the present law, but there was no agreement regarding how many people were being i n j u r e d by the present law, o r 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 a f f e c t e d . The most f r e q u e n t l y suggested s o l u t i o n seemed to be a law a l l o w i n g the woman to e s t a b l i s h h e r own d o m i c i l e .  I t was  n o t i c e a b l e that the problem a r i s i n g from the husband being  - Ill o u t s i d e of Canada was a much more prevalent source o f  difficulty  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. C h i l d r e n and  Custody  I t became c l e a r from the r e p l i e s i n t h i s s e c t i o n t h a t the present law i s not p r o t e c t i n g the c h i l d r e n o f 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 e f f e c t s r e s u l t i n g f o r c h i l d r e n whose parents had not been able to get the d i v o r c e as f o r c h i l d r e n whose parents were divorced. The viewpoint that i f d i v o r c e i s not obtained a commonlaw r e l a t i o n s h i p o f t e n r e s u l t s , received s t r o n g support from the experience of those i n t e r v i e w e d , as they a l l knew a t l e a s t a few cases.  Many of these were l o n g - l a s t i n g r e l a t i o n s h i p s ,  and they e x i s t e d apparently because at l e a s t one person i n v o l v e d could not o b t a i n a d i v o r c e . There was a general f e e l i n g that more help should be provided to parents, p r e f e r a b l y before the d i v o r c e got i n t o c o u r t , p a r t l y to t r y to r e c o n c i l e them, but a t l e a s t to help them to understand t h e i r c h i l d r e n ' s f e e l i n g s and reach an amicable agreement on plans.  The present system, of custody  reports obtained through the Superintendent of C h i l d Welfare by judge's request o n l y , was not thought to be s a t i s f a c t o r y , part i c u l a r l y s i n c e the i n f o r m a t i o n i n them was o n l y seen by the judge, and the s k i l l o f 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 i d e a o f i n 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 o f those c r i t i c i z i n g  the present r e p o r t s .  There was a l s o a number  i n favor o f people from s e v e r a l d i s c i p l i n e s being involved i f any r e a l i n v e s t i g a t i o n o f a l t e r n a t e plans f o r the c h i l d r e n should be d e s i r e d .  Two systems o f achieving t h i s 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 w i t h the judge, second that a "panel o f experts" be a v a i l a b l e to see those c h i l d r e n and parents who were r e f e r r e d to them. M o r a l i t y . The Church and Divorce The information received here confirmed  the expectations  aroused by the review o f l i t e r a t u r e , w i t h the exception that we learned t h a t the Roman OSatholic ideas a r e p r e s e n t l y i n the process o f major r e v i s i o n .  I f t h i s proceeds, t h i s should e i t h e r  have a major e f f e c t on the chance o f new l e g i s l a t i o n being accepted i n Canada, o r e l s e the r e a l opponents to any change i n the law o f 1857 w i l l be forced to expose themselves.  CHAPTER V I I COMPARATIVE LEGISLATION WITH A VIEW TO REFORM  In t h i s chapter we hope t o i n d i c a t e avenues f o r reform by examining some comparative l e g i s l a t i o n i n the d i v o r c e f i e l d . F i r s t , i t seems p e r t i n e n t to view recent changes i n the B r i t i s h system which r e t a i n s the f a u l t theory. l e g i s l a t i o n i s o f value.  Then a look a t A u s t r a l i a n  This l e g i s l a t i o n has a l s o r e t a i n e d the  concept o f a matrimonial offence y e t so broadened the grounds f o r d i v o r c e that i n f a c t i t would seem to acknowledge t h e o r i e s concerning breakdown o f marriages.  Finally, legislation, largely  American, based upon breakdown theory should be examined esp e c i a l l y as i t i s r e l a t e d to the advent o f f a m i l y c o u r t s .  Brief  mention w i l l a l s o be made o f areas where mutual consent i s adequate reason f o r d i v o r c e .  T h i s , o f course, represents an  u l t i m a t e response to breakdown t h e o r i e s . Recent E n g l i s h Family Law In 1937 a reform b i l l was passed i n England extending the grounds f o r d i v o r c e to not o n l y i n c l u d e a d u l t e r y but a l s o des e r t 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 o f mind w i t h continuous care and treatment f o r f i v e years preceding the p e t i t i o n .  There were a d d i t i o n a l grounds f o r  the w i f e i f h e r husband was g u i l t y o f rape, sodomy o r b e s t i a l i t y .  - 114 The grounds a p p a r e n t l y were extended  as people began t o s e e  a d u l t e r y as a symptom o f m a r i t a l breakdown and t o r e c o g n i z e t h a t i t c o u l d n o t f a i r l y be c l a i m e d as t h e o n l y cause when a m a r r i a g e ceased  t o work.  Then i n 1956, t h e R o y a l Commission Report on M a r r i a g e and Divorce"'" was p u b l i s h e d .  T h i s 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 c o u r t s and r e t a i n e d t h e i d e a o f a solemn and a d v e r s a r y system as opposed t o 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 r e p r e s e n t e d 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 f o r m a l a d v e r s a r y system c o u l d b r i n g home t o t h e m a r r i a g e p a r t n e r s t h e g r a v i t y o f t h e s i t u a t i o n w h i l e a t t h e same time p r o t e c t i n g t h e paramount i n t e r e s t o f s o c i e t y i n t h e s t a b i l i t y o f m a r r i a g e as a s o c i a l i n s t i t u t i o n . Nonetheless, while r e t a i n i n g the p r i n c i p l e o f m a r i t a l offence the Commission d i d acknowledge t h a t a r a d i c a l change i n t h e b a s i s on w h i c h d i v o r c e was g r a n t e d m i g h t 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. S i n c e t h e R o y a l Commission a number o f changes have taken p l a c e i n E n g l i s h procedure and l a w s u r r o u n d i n g d i v o r c e .  The  changes were made i n o r d e r t o e l i m i n a t e some o f t h e 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 t o p r e s e n t  British  G r e a t B r i t a i n , R o y a l Commission on M a r r i a g e and D i v o r c e R e p o r t . M i n u t e s o f E v i d e n c e . H.M.S.O., London, 1952-1956.  - 115 Columbian l e g i s l a t i o n . The Royal Commission recommended adding two a d d i t i o n a l grounds to the e x i s t i n g ones of adultery, c r u e l t y , desertion, rape, and c e r t a i n other unnatural offences, and incurable insanity. (i)  The extensions were: 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 w i l f u l r e f u s a l to consummate the marriage Thus, i n England there has been an increased tendency to enlarge the grounds f o r divorce.  At present, the ground of incurable  insanity i s an exception to the p r i n c i p l e of r e s t i n g a divorce on an offence.  Furthermore, the broadened i n t e r p r e t a t i o n 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 o f the  advantages of having no general grounds f o r divorce are m i t i gated by the breadth and f l e x i b i l i t y  with which the courts  i n t e r p r e t the grounds of cruelty and desertion." divorce i n England may marriage are at f a u l t .  Also, a  be granted even i f both partners to a Thus, "safety-valves" have been provided  L. N. Brown, "English Family Law Since the Royal Commission," University of Toronto Law Journal, v o l . 14, p. 54. -  1961,  - 116 w h i l e r e t a i n i n g the basic premise o f f a u l t .  Procedures  have  a l s o been changed i n England i n order to m i t i g a t e problems o f the e x i s t i n g d i v o r c e system without r a d i c a l l y a l t e r i n g i t .  A  3 new r u l e  whereby the court may order the separate r e p r e s e n t a t i o n  i n the d i v o r c e s u i t o f any c h i l d r e n by appointing a guardian ad l i t e m to watch over t h e i r i n t e r e s t s i n d i c a t e s a growing concern f o r the welfare o f c h i l d r e n o f divorced parents.  A l s o , i n the  same s p i r i t i s "the p r a c t i c e 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 o f the Royal Commission to the d i v o r c e courts i n the provinces, whereby the s e r v i c e s o f a court welfare worker are made a v a i l a b l e to the 4 court."  This person, t r a i n e d i n s o c i a l work, could then i n -  v e s t i g a t e the plans proposed by the m a r i t a l partners concerning the f u t u r e o f the c h i l d r e n under s i x t e e n years o f age, e s p e c i a l l y i n cases where there was disagreement over the question o f custody o f access. Furthermore, by S t a t u t e the court has now been given the 3  power to refuse to make absolute a d i v o r c e decree u n t i l i t i s s a t i s f i e d that the best p o s s i b l e arrangements have been made f o r ^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) A c t , 1958, supra, s.2.  - 117 the f u t u r e care o f the c h i l d r e n .  I f the court i s i n any doubt  i t can adjourn and c a l l f o r a r e p o r t from the welfare worker. I t can a l s o place c h i l d r e n under the care and s u p e r v i s i o n o f 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 E n g l i s h law surpasses ours i n i t s concern f o r the welfare of c h i l d r e n can be found i n a new v i s i o n included i n the Matrimonial Proceedings o f 1958.  6  pro-  ( C h i l d r e n ) Act  •. • This p r o v i s i o n empowers the court to make orders as to  the custody, maintenance and upbringing o f c h i l d r e n even where i t dismisses the p e t i t i o n f o r d i v o r c e o r o t h e r matrimonial r e lief.  In other words, i t i s recognized t h a t an unsuccessful  p e t i t i o n f o r d i v o r c e i s not going to i n c r e a s e m a r i t a l harmony o r 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 t h a t there i s a growing preoccupation o f d i v o r c e courts with the p l i g h t of c h i l d r e n and a movement towards more i n v e s t i g a t i o n around planning f o r children.  There i s a l s o an increased extension of grounds and  broad i n t e r p r e t a t i o n o f those provided so that the i l l s of too l i m i t e d grounds are m i t i g a t e d .  Furthermore, the Royal Commission  paid t r i b u t e to the work done by marriage c o u n s e l l o r s d e s p i t e r e j e c t i n g the c r e a t i o n of an o f f i c i a l c o n c i l i a t i o n s e r v i c e and  a t r i m o n i a l Proceedings  (Children) A c t , 1958, supra, s.3  - 118 a l s o recommended that f a c t s learned by marriage c o u n s e l l o r s i n the course o f c o n c i l i a t i o n should be i n a d m i s s i b l e as evidence i n any subsequent matrimonial proceedings between the spouses. Hence, more emphasis was placed upon advice and c o u n s e l l i n g r a t h e r 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 A c t o f 1959 brought about some important d i v o r c e reforms i n A u s t r a l i a which are o f i n t e r e s t to Canadians.  P r i o r to the A c t , the question o f domi-  c i l e had been troublesome as i t l e f t i n d i v i d u a l s u n c e r t a i n when =  they approached the court as to whether the judge would be s a t i s f i e d that the d o m i c i l e claimed would be the c o r r e c t d o m i c i l e . The A c t brought about u n i f o r m i t y o f j u r i s d i c t i o n and o f the grounds f o r matrimonial causes throughout the A u s t r a l i a n commonwealth so that there are no longer c o n f l i c t s o f j u r i s d i c t i o n and anomalies o f law between the d i f f e r e n t parts o f the country as we f i n d i n Canada. Grounds f o r d i v o r c e i n A u s t r a l i a are q u i t e 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 r e t a i n e d i n the c o u r t s . At present, A u s t r a l i a n s c i t e fourteen grounds f o r d i v o r c e as follows:  - 119 1.  Adultery  2.  W i l f u l d e s e r t i o n f o r not l e s s than two years  3.  W i l f u l and p e r s i s t e n t 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.  H a b i t u a l drunkeness o r drug a d d i c t i o n f o r not l e s s than two years  7.  Husband's frequent c o n v i c t i o n s f o r crime s i n c e marriage w i t h i n f i v e years with a minimum o f three years imprisonment and h a b i t u a l l y f a i l i n g to support the w i f e  8.  Respondent imprisoned s i n c e marriage f o r not l e s s than three years f o r o f f e n c e punishable by death or l i f e imprisonment o r imprisonment f o r f i v e years o r more and s t i l l i n j a i l  9.  Respondent s i n c e marriage and w i t h i n one year immediately preceding the p e t i t i o n convicted on indictment o f grievous b o d i l y harm o r the i n t e n t to i n f l i c t such on p e t i t i o n e r o r attempt to murder p e t i t i o n e r .  10.  Respondents h a b i t u a l 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 o r d e r o r separation agreement  11.  Respondent's f a i l u r e to comply w i t h a decree f o r r e s t i t u t i o n of conjugal r i g h t s a f t e r a year o r more  12.  Respondent of unsound mind a t date of p e t i t i o n and . u n l i k e l y to recover and s i n c e the marriage and w i t h i n s i x years immediately preceding the p e t i t i o n has been f o r periods aggregating a t 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 o r order f o r a continuous period o f not l e s s 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 o f resuming c o h a b i t a t i o n ( Q u a l i f i c a t i o n i n S e c t i o n 37)  14.  Absence o f 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 o r h e r death  I t should be noted t h a t the 13th ground l i s t e d approaches d i v o r c e by mutual consent.  The E n g l i s h Royal Commission disapproved o f  d i v o r c e 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 u n w i l l i n g but s l o w l y worn down by h e r partner to g i v e consent.  A u s t r a l i a apparently f e e l s s e p a r a t i o n  f o r f i v e years i s a s u f f i c i e n t safeguard. Another s e c t i o n o f the A c t i s a l s o o f s p e c i f i c importance as i t provides "a new mechanism a t the one moment designed to b r i n g the consequences o f d i v o r c e f o r the c h i l d r e n to the n o t i c e of the parents, and to secure the welfare o f the c h i l d r e n when d i v o r c e ensues."  7  The A c t then provides that no d i v o r c e 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 p r o v i s i o n has been made f o r the c h i l d r e n . Clause 14 o f the A c t represents "an endeavour to a f f o r d A u s t r a l i a n s an opportunity to have a law that w i l l o f f e r some g machinery towards the saving o f marriage." Clause 14 s t a t e s :  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 o f the Commonwealth M a t r i m o n i a l Causes B i l l , " A u s t r a l i a Law J o u r n a l , v o l . 33 (August 1959), p. 182.  - 121 The court must g i v e c o n s i d e r a t i o n from time to time to the p o s s i b i l i t y o f a r e c o n c i l i a t i o n o f the p a r t i e s to the marriage i n appropriate cases, and w i t h that end i n view the judge may e i t h e r adjourne the proceedings f o r a f o r t n i g h t , o r longer i f the spouses d e s i r e i t ; or w i t h the:cdnsent o f the spouses i n t e r v i e w them i n h i s chambers, w i t h o r without counsel, as he thinks proper; o r nominate an approved marriage guidance o r g a n i z a t i o n o r a person w i t h experience o r t r a i n i n g i n marriage c o n c i l i a t i o n , o r i n s p e c i a l circumstances some o t h e r s u i t a b l e person to endeavor, w i t h the consent o f those p a r t i e s , to e f 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 s a i d i n the course o f such c o n c i l i a t i o n proceedings w i l l be a d m i s s i b l e i n any court. There has been d i v i d e d o p i n i o n about these c l a u s e s . Some f e e l that the o f f i c i a l s a n c t i o n i n g o f marriage c o u n s e l l i n g w i l l enhance the p r e s t i g e o f organizations o f f e r i n g such s e r v i c e s and thereby encourage couples to v i s i t them before i n s t i t u t i n g d i v o r c e 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 i n s t e a d o f two persons who are  seeking a s o l u t i o n to common i n t i m a t e problems."*'  0  The new A u s t r a l i a n Commonwealth M a t r i m o n i a l Cause A c t o f 1959 then has i n s t i t u t e d some important reforms by c r e a t i n g a country-wide d o m i c i l e , by p r o t e c t i n g the r i g h t s o f c h i l d r e n i n 9 Commonwealth M a t r i m o n i a l Causes A c t o f 1959. Clause 14. J . M. Biggs, " S t a b i l i t y o f Marriage - A Family Court?" The A u s t r a l i a Law J o u r n a l , v o l . 34 ( A p r i l 1961), p. 349. 1 0  -• 122 so f a r as adequate p r o v i s i o n must be made f o r them before a d i v o r c e i s granted, by i n t r o d u c i n g l e g a l machinery to make r e c o n c i l i a t i o n between m a r i t a l partners more p o s s i b l e , and  by  c r e a t i n g extensive grounds f o r d i v o r c e so that persons who  are  married i n name o n l y can be freed from matrimonial bonds. At the same time, the adversary system o f law s t i l l does not guarantee that a l l the f a c t s r e l e v a n t to the case w i l l brought out i n uncontested  be  divorces and does s t r e s s the f a c t  the marriage partners are i n f a c t a d v e r s a r i e s .  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 w i t h the court and may  s u f f e r as a consequence o f t h i s .  Furthermore, d i v o r c e cases are not d e a l t with a g a i n s t the background of a f a m i l y u n i t where a l l aspects o f broken f a m i l y l i f e come to l i g h t .  Hence, i t would seem important that we  look  beyond the A u s t r a l i a n system to other systems which o f f e r f a m i l y 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 r e c e n t l y , the most f r e q u e n t l y suggested d i v o r c e reform has been to a l t e r the grounds f o r d i v o r c e , with the trend being to i n c r e a s e the number o f grounds.  As a r e s u l t , New York  and s e v e r a l Canadian provinces are the o n l y 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 a d u l t e r y as the e x c l u s i v e ground?^  I n the United S t a t e s , however, the overwhelming per-  centage o f divorces are sought and granted on the grounds o f c r u e l t y o r d e s e r t i o n , and i t has been found that a d u l t e r y i s seldom a l l e g e d i n States that permit these two other grounds. Regardless o f t h i s , the f a c t remains that i t i s g e n e r a l l y recognized that the grounds a l l e g e d i n divorce s u i t s are seldom the r e a l reasons f o r the marriage breaking up; a t best, they are 12 merely sumptoms of basic causes. The general world trend, then, i s to a l l o w f o r more general f a u l t grounds, which r e a l l y i n d i c a t e s a b e l i e f — a l t h o u g h 13 u n a d m i t t e d — t h a t breakdown occurs.  I t appears that those who  take i s s u e with t h i s trend and advocate a t i g h t e n i n g o f the d i v o r c e laws i n order to curb the d i v o r c e r a t e do not  fully  understand the s i t u a t i o n , as experience has shown that as long as d i v o r c e i s permitted on any ground a t a l l , spouses who 14 agreed to p a r t can o b t a i n a d i v o r c e .  have  I t would seem much more  d e s i r a b l^eQ uto i n a t e much of the hypocrisy from i n teil ni m Johnstone, "Divorce: The Place of modern the L e dg ia vl o r c e 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. I b i d . . p. 301. 13 L.D. Rutman, "Departure from F a u l t , " J.Fam.Law. v o l . 1 ( F a l l 1961)^ p.182. H.R. Hahlo, "Can Law Reform Stop the D i s i n t e g r a t i o n o f Family L i f e ? " South A f r i c a n Law J o u r n a l , v o l . 71 (November 1954). p. 393. " : 1 2  14  -  124  -  law by bringing the l e g a l grounds closer to the r e a l i t i e s of marital d i s i n t e g r a t i o n .  One i n t e r e s t i n g proposal f o r divorce  grounds reform was developed by the National Association o f Women Lawyers which drafted a b i l l advocating adoption o f a "therapeutic approach" to divorce.  In l i n e 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 o f f i v e c r i t i c a l components of marriage: mutual f i d e l i t y , mutual respect, mutual r i g h t 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 i n the subsequent j u d i c i a l decision. I t has been suggested that a l l previous reform e f f o r t s have f a i l e d because they were mainly attempts to ". . . graft good branches upon an a i l i n g tree - to patch up a rotten s t r u c t 16 ure on a sand foundation with a sound plank here and there." I t must be admitted that reform attempts centered around the broadening o f grounds alone are not basic o r 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, S o c i a l L e g i s l a t i o n . New York, AppletonCentury-Crofts, Inc., 1957, p. 145. 16 Paul W. Alexander, "The F o l l i e s of Divorce: A Therapeutic Approach to the Problem," ABA, v o l . 36 (February 1960), p. 105.  - 125  -  even more p r o g r e s s i v e types o f r e f o r m a r e o b v i o u s l y based upon f a l l a c i e s and m i s c o n c e p t i o n s ,  such as the b e l i e f t h a t d i v o r c e  d e s t r o y s m a r r i a g e s and breaks up f a m i l i e s .  Y e t the l e g a l s e c t i o n  o f the N a t i o n a l C o n f e r e n c e on F a m i l y L i f e h e l d a t Washington, D.C.  i n 1948  i t s e l f a s s e r t e d t h e 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 n o t the r e s u l t o f d i v o r c e , but d i v o r c e i s t h e r e s u l t o f t h e broken f a m i l y ; t h a t spouses a r e n o t d i v o r c e d  by  the c o u r t , but d i v o r c e themselves b e f o r e coming to c o u r t ;  that  d i v o r c e i s not the cause but the r e s u l t o f m a r r i a g e f a i l u r e . " "  7  Fault One  o t h e r m a j o r a s p e c t o f the d i v o r c e law w h i c h seems to  be a l m o s t an a b s o l u t e 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 o f d i v o r c e i s the c o n c e p t o f f a u l t , w h i c h i s i n h e r e n t i n t h e law.  According  Judge and  c u r r e n t l y Dean o f t h e New  "The  to Kenneth D. Johnson, former J u v e n i l e C o u r t Y o r k S c h o o l o f S o c i a l Work,  u n i v e r s a l a c c e p t a n c e o f t h e b e l i e f t h a t p e o p l e can be i n  need o f h e l p w i t h o u t b e i n g a t f a u l t i s a r e l a t i v e l y new And  t h e 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 t s practices.  As l o n g as f a u l t d o c t r i n e s and a d v e r s a r y  cedures a r e m a i n t a i n e d ,  belief.""* into pro-  p e o p l e coming to t h e c o u r t s f o r h e l p  will  ""^"Family L i f e C o n f e r e n c e Suggests New J u d i c i a l P r o c e d u r e s and A t t i t u d e s Toward M a r r i a g e and D i v o r c e , " CBR. v o l . 27, 1949, p. 238. 18  P a u l W. A l e x a n d e r , " L e t ' s Get the E m b a t t l e d Spouses o u t o f the Trenches." Law & Contemp. P r o b s . . v o l . 18 ( W i n t e r 1953), p. 103. L  - 126 be forced i n t o p o s i t i o n s o f h o s t i l i t y , antagonism, and f i g h t i n g , thereby making d i v o r c e almost i n e v i t a b l e ; and basing d i v o r c e on proof o f f a u l t o r g u i l t makes the adversary concept inescapable. Attempts a t 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 o f marriage f a i l u r e and by p l a c i n g so much emphasis upon the grounds o r forms o f 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 f a m i l y . I t i s not preventive; i t i s p u n i t i v e .  I t does not conserve; i t  19 disserves." I m p l i c i t i n e l i m i n a t i n g the f a u l t concept i n d i v o r c e proceedings and i t s adversary nature would be l e g a l r e c o g n i t i o n o f the f a c t that termination o f the m a r i t a l s t a t u s by a d i v o r c e decree i s not an award to a s u c c e s s f u l l i t i g a n t ; r a t h e r the decree would terminate the m a r i t a l status f o r both p a r t i e s equally as a decree o f a court o f equity would terminate a p a r t n e r s h i p . 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 r e l a t i o n s h i p between d i v o r c e 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 t h i n g which can be done,  however, i s to adopt a s t a t u t e that would permit d i v o r c e courts Alexander, "The F o l l i e s o f Divorce," p. 107  - 127 to apply the s k i l l s o f other p r o f e s s i o n a l s i n an attempt to r e s o l v e m a r i t a l problems; t h i s would not d i s r u p t the e x i s t i n g p a t t e r n of law and would be a good proving ground upon which to t e s t the e f f e c t i v e n e s s o f a new approach, a t the same time improving the receptiveness o f the p u b l i c and the l e g i s l a t u r e 20 toward changing our d i v o r c e laws.  This i s a r a t h e r conser-  v a t i v e view, however, as compared w i t h t h a t o f Paul W.  Alexander,  who a s s e r t s that we must r e c o n s t r u c t the e n t i r e philosophy of the law so that i t conserves f a m i l y 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 s c r a t c h . Our a r c h a i c 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 s u b s t i t u t e d the modern 21 philosophy o f diagnosis and therapy. Family Court The philosophy s t a t e d above by Alexander i s the very basis o f the suggested d i v o r c e reform which i s c u r r e n t l y r e c e i v i n g the most a t t e n t i o n and which seems to be the most p r o m i s i n g — t h a t o f the f a m i l y court.  Alexander, who i s Judge o f the Court o f  Common P l e a s , Department o f Domestic R e l a t i o n s , Lucas County (Toledo) Ohio, i s the prime advocate o f t h i s reform.  Enthusiasm  20 Noah Weinstein, "Proposed Changes i n the Law of Divorce," M i s s o u r i Law Review, v o l . 27 (June 1962), pp. 328-329. 21 "Family L i f e Conference. , .," p. 239.  - 128 f o r the movement has been a t t r i b u t e d to d i s s a t i s f a c t i o n w i t h other types o f reform, Alexander's e f f e c t i v e advocacy, the p o p u l a r i z i n g o f p s y c h i a t r y and s p e c i a l i z e d c o u n s e l l i n g , and the f a c t that f a m i l y courts are acceptable  to both the " l i b e r a l s "  and "conservatives" i n the f i e l d o f d i v o r c e .  22  The term " f a m i l y court" i s l o o s e l y a p p l i e d to various types o f c o u r t s , and i s sometimes synonymous w i t h domestic r e l a t i o n s courts.  According  to Alexander, the two primary func-  t i o n s o f a l l family courts are: (1) j u d i c i a l , and (2) m i n i s t e r 23 i a l o r therapeutic.  There a r e a v a r i e t y o f courts c a l l e d  f a m i l y c o u r t s , but with d i f f e r i n g procedures and s e r v i c e s , i n twelve States o f t h e United S t a t e s , and i n four other  States  there are courts w i t h p r o v i s i o n s f o r i n v e s t i g a t i o n and procedures 24 25 approaching those o f the f a m i l y courts.  *  The c h a r a c t e r i s t i c s o f a family court are as f o l l o w s : i t i s an i n t e r - p r o f e s s i o n a l i n s t i t u t i o n which has i n t e g r a t e d j u r i s d i c t i o n over a l l f a m i l y matters; i t maintains a s t a f f o f s p e c i a l i s t s , such as i n v e s t i g a t o r s o r caseworkers, which make f a c t u a l i n v e s t i g a t i o n s f o r the court, and a l s o employs marriage 22 Johnstone, p. 317. 23  Paul W. Alexander, "Family Cases are D i f f e r e n t - Why not Family Courts?" Kansas Law Review, v o l . 3, no. 1 (October 1954), p. 28. "*Quintin Johnstone, "Family Courts," U n i v e r s i t y o f Kansas C i t y Law Review, v o l . 22. no. I ( F a l l 1953); pp. 18-22. 2  "'Charles L. Chute, "Divorce and the Fan & Contemp.Probs.. v o l . 18 (Winter 1953), p. 54.  - 129 and f a m i l y counselors; and i t e x i s t s f o r the purpose o f prov i d i n g help f o r f a m i l i e s i n t r o u b l e , employing extensive use 26 27 o f community resources to that end.  '  The f a m i l y court movement can be considered as p a r t o f two broader trends i n law: (1) greater absorption i n t o subs t a n t i v e and procedural law o f the knowledge and methods o f 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 admini28 s t r a t i o n o f 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 o f p s y c h o l o g i c a l and s o c i a l f a c t o r s c o n t r i b u t e to d i v o r c e , and therefore a s p e c i a l court equipped w i t h s p e c i a l s t a f f i s needed i n o r d e r to understand and adjust these f a c t o r s w i t h a view to preventing d i v o r c e . The idea of the f a m i l y court i s an outgrowth o f j u v e n i l e c o u r t s , whose duty i t i s to safeguard, cure, r e h a b i l i t a t e , c o r r e c t , and remedy causal s i t u a t i o n s ; and to t h i s end  they  employ i n f o r m a l procedures, work c l o s e l y w i t h 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 h e l p , avoid a penal approach, and employ a s t a f f o f s p e c i a l i s t s . n o n - j u d i c i a l s t a f f which Alexander suggests would be  necessary  f o r a t r u l y e f f i c i e n t f a m i l y court would be a p s y c h i a t r i s t , 26  27  The  Johnstone, "Family Courts," p. 21.  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 p s y c h o l o g i s t , psychometrist, p s y c h i a t r i c  caseworker,  s o c i a l caseworker, marriage counselor, group worker, m i n i s t e r , etc.,  and a l l o f these would r e g u l a r l y invoke the s e r v i c e s o f  the l e g a l p r o f e s s i o n , church, s c h o o l , p u b l i c and p r i v a t e 29 agencies, and a l l a v a i l a b l e community resources. Some i l l u s t r a t i o n should be made here o f v a r i o u s aspects o f f a m i l y court procedures and s e r v i c e s which have been implemented by s e v e r a l United States c o u r t s .  The f a m i l y court  movement i s considered to be most developed i n Ohio, as there are e i g h t such courts i n t h a t S t a t e .  Once the p a r t i e s have  f i l e d f o r a d i v o r c e , there i s a six-weeks w a i t i n g 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 f o r m a r i t a l c o u n s e l l i n g , which i s given f r e e o f charge by family counselors w i t h a view to preventing the d i v o r c e . S p e c i a l i n v e s t i g a t o r s o r 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 o f cases coming before the c o u r t , and r e ports are made on the f a m i l y and i n d i v i d u a l s i n i t to the court to a s s i s t i n a r r i v i n g a t a d e c i s i o n . Under a 1951 law, a l l cases i n which there are c h i l d r e n under 14 years o f 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 a r e considered  c a r e f u l l y , and the d e c i s i o n s reached are not h u r r i e d o r c a s u a l , Johnstone, "Divorce: The Place o f the Legal System. . .," pp. 318-319. -  - 131 but based upon the c r i t e r i o n o f what i s deemed best f o r the welfare of the f a m i l y . ^ A v a r i a t i o n on t h i s procedure i s I l l i n o i s ' "60-day c o o l i n g o f f p e r i o d " . 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 o f d i v o r c e proceedings, a spouse f i l e s a n o t i c e o f i n t e n t i o n to f i l e f o r a d i v o r c e (which contains no complaints o r charges, thereby e l i m i n a t i n g the adv e r s a r y procedure) and then must wait 60 days before the summons f o r 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 p a r t i e s before him f o r an i n f o r m a l d i s c u s s i o n , w i t h the lawyers present, before the a c t i o n f o r d i v o r c e i s a c t u a l l y filed.  I f there i s i n d i c a t i o n that the couple may b e n e f i t from  the s e r v i c e s o f a marriage c o u n s e l l o r o r some o t h e r expert, the 31 judge then makes such a r e f e r r a l . In the S t a t e o f Wisconsin, the 1960 Wisconsin Family Code r e j e c t s the s p e c i a l i z e d s t a f f approach common to a model family court, but provides other features which are geared toward r e conciliation.  This code also provides f o r a 60-day w a i t i n g  period before a d i v o r c e case may be heard i n order to attempt Chute, p. 53. 31  H a h l o , 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 e f f e c t e d , there must be a one-year c o o l i n g - o f f 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 o f the defendant spouse f o r purposes o f attempting r e c o n c i l i a t i o n . judgement i n any a c t i o n i s made u n t i l a family court  No  commissioner  (who i n t h i s case i s a lawyer) has " . . . made a f a i r and imp a r t i a l i n v e s t i g a t i o n o f the case and f u l l y advised  the court  as to the merits o f the case and the r i g h t s and i n t e r e s t s o f the p a r t i e s and the p u b l i c , and the e f f o r t s made toward reconc i l i a t i o n o f the p a r t i e s o r 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 e s t a b l i s h a true f a m i l y court as there i s no i n t e g r a t e d j u r i s d i c t i o n over a l l family matters, but i t leaves room f o r f a m i l y  court-type  s t a f f as a l o c a l o p t i o n and t r i e s to promote the s o c i a l p h i l o sophy o f a f a m i l y court.  Probation o f f i c e r s a r e employed whose  f u n c t i o n i t i s to provide c o n s u l t a t i o n and r e f e r r a l s i f necessary, and perform marriage c o u n s e l l i n g i n an attempt to effect reconciliations.  The probation o f f i c e r makes a report o f  h i s i n v e s t i g a t i o n s i n t o the f a m i l y , and copies o f t h i s report Foster, pp. 13-15.  - 133 are made a v a i l a b l e to a l l i n t e r e s t e d p a r t i e s f i v e days before the hearing o f the case.  I f an o b j e c t i o n i s made to any aspect  o f the r e p o r t , the l a t t e r may be received i n evidence o n l y i f the probation o f f i c e r who wrote i t i s made a v a i l a b l e f o r crossexamination by the o b j e c t i n g 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 c h i l d r e n o f the marriage under 14 years o f age, and the court may f u r t h e r r e q u i r e a conference between a l l i n v o l v e d p a r t i e s when there a r e c h i l d r e n . Before a divorce i s granted, the court must f i n d that " . . . attempts a t r e c o n c i l i a t i o n would be i m p r a c t i c a b l e o r f u t i l e and not to the best i n t e r e s t s o f the f a m i l y . "  I f there are no  c h i l d r e n i n v o l v e d the court can stay the proceedings up to s i x t y days, and up to s i x months i f there a r e c h i l d r e n , i f i t f i n d s attempts a t r e c o n c i l i a t i o n are p r a c t i c a b l e and to the best i n 33 t e r e s t s o f the f a m i l y .  The procedures o f the  Pennsylvania  code l i m i t the scope o f t r a d i t i o n a l defenses, i n that d i s c u s s i n g property settlements, c h i l d r e n , and coming to agreement between the p a r t i e s are not considered to be c o l l u s i o n .  And here again,  the establishment o f 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 p r o v i d i n g that the n o t i c e o f i n t e n t i o n to f i l e f o r a d i v o r c e does not contain any Foster, pp. 13-17.  - 134 complaints o r grounds.  34  Both the Pennsylvania and Wisconsin  codes p r o t e c t p r i v i l e g e d communication i n marriage c o u n s e l l i n g , but shy away from compulsory counseling w h i l e at the same time p r o v i d i n g leverage to induce o r persuade the p a r t i e s i n v o l v e d 35 to submit to such counseling. A more d e t a i l e d look should be taken here a t the p h i l o s o phy and procedures o f one o f the most extensive family court systems- that of Los Angeles County.  A l l the domestic r e l a t i o n s  functions o f the Los Angeles Family Court come under the superv i s o r y j u r i s d i c t i o n o f j a p r e s i d i n g judge, and i n conjunction w i t h and as an i n t e g r a l p a r t of the j u d i c i a l process, c o n c i l i a t i o n s e r v i c e s are performed by t r a i n e d and experienced s o c i a l workers, t h e i r f u n c t i o n , 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 s e r v i c e on a noncompulsory basis i n both i n v e s t i g a t i o n and c o u n s e l i n g , to enable i t to determine what i s best f o r the h e a l t h and w e l f a r e o f the c h i l d r e n involved and to save marriages otherwise doomed. court endeavours  The  to e l i m i n a t e a l l adversary aspects as f a r as  p o s s i b l e i n domestic r e l a t i o n s cases.  S o c i a l workers are  attaches o f the c o u r t , are paid by the court, and work d i r e c t l y 34 Foster, pp. 13-17. 35 I b i d . , p. 16. 36  Roger A l t o n P f a f f , "The Role o f 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 s u p e r v i s i o n .  They serve f i r s t l y as i n v e s t i g a t o r s , and  t h e i r reports i n t o cases are f i l e d as s e c r e t e x h i b i t s to be opened o n l y upon order o f the c o u r t , thereby maintaining confidentiality.  At one time a recommendation was made by the  s o c i a l worker as p a r t o f h i s r e p o r t , but t h i s was eliminated i n 1962 as i t was found they o n l y i n v i t e d c r i t i c i s m and antagonism from attorneys.  The purpose o f the reports i s to f u r n i s h the  court with information to a s s i s t the judge i n making a d e c i s i o n f o r the best i n t e r e s t s of the c h i l d r e n and a l l p a r t i e s involved. The Los Angeles County C o n c i l i a t i o n Court has extended the f u n c t i o n of s o c i a l workers to i n c l u d e counseling. court " . . .  This  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 p a r t o f lav? and s o c i a l work to provide 38 an enabling s e r v i c e to f a m i l i e s with m a r i t a l d i s c o r d . " According to the law, " p r i o r to the f i l i n g o f any a c t i o n f o r d i v o r c e , annulment, o r separate maintenance, e i t h e r spouse, o r 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 f o r the purpose o f preserving the marriage by e f f e c t i n g 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.  39  - 136 Access to the court i s simple - a couple may l i t e r a l l y off  the s t r e e t .  walk i n  A f t e r one spouse f i l e s the above-mentioned  p e t i t i o n , n e i t h e r may f i l e an a c t i o n f o r d i v o r c e f o r a t l e a s t t h i r t y days, and during t h i s time the attempts a t r e c o n c i l i a t i o n are made.  Counseling i s l i m i t e d to a short«term b a s i s , as  i t was found that extended counseling by the court r e s u l t s i n c r i t i c i s m from other p u b l i c and p r i v a t e f a m i l y counseling agencies.  As a r e s u l t , the court works i n c l o s e cooperation  w i t h other community agencies i n order to r e f e r cases which i n d i c a t e a need f o r long-term counseling.  The court a l s o s t r e s s e s  the non-compulsory aspect o f t h e i r counseling s e r v i c e s , as t h i s frees the s o c i a l workers to devote t h e i r time to those cases i n which the p a r t i e s want and can use the help and frees them from the time-consuming task o f processing a l l cases regardless o f 4  whether o r not r e c o n c i l i a t i o n attempts are d e s i r e d o r f e a s i b l e . The procedures o f the court are i n f o r m a l , p r i v a t e , and c o n f i d e n t i a l and there i s no fee f o r any o f the s e r v i c e s . 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 f o r c h general  information concerning the p a r t i e s , t h e i r backgrounds, and contains a c h e c k - l i s t o f m a r i t a l d i f f i c u l t i e s which aids the c o u n s e l l o r 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 n o t i c e i s then sent to inform the respondent o f the time  and p l a c e o f the hearing w i t h the c o u n s e l l o r , and the court can i s s u e a c i t a t i o n r e q u i r i n g the attendance o f the respondent i f necessary.  I n p r e p a r a t i o n f o r the h e a r i n g , the c o u n s e l l o r t a l k s  to the attorneys involved and informs the p a r t i e s themselves o f the purpose o f c o n c i l i a t i o n court, s t r e s s i n g that they are not i n any way forced to r e c o n c i l e .  The c o u n s e l l o r then confers  with each party s e p a r a t e l y , 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 proceedings a r e terminated and the attorneys so n o t i f i e d .  Court  orders can be made i n respect to the conduct o f the p a r t i e s as i t may deem necessary to preserve the marriage o r to implement the r e c o n c i l i a t i o n o f the spouses.  The d u r a t i o n o f these orders  i s l i m i t e d to t h i r t y days from the hearing o f the p e t i t i o n , unless the p a r t i e s mutually consent to a longer d u r a t i o n . 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 f o r t h the terms and conditions upon which the couple agree to r e c o n c i l e .  The p a r t i e s s i g n t h i s agreement,  and can be found i n contempt o f court i f they v i o l a t e t h e i r promises, thereby f a c i n g the p o s s i b i l i t y o f a j a i l sentence.  A  court order r e q u i r i n g compliance w i t h the above agreement i s attached. ajad_^je,ryM- on.-th.e .gar^ie^...,. I t i s f e l t that t h i s agreef  ment lends d i g n i t y to the promises made and a l s o serves as a working document to be r e f e r r e d to by the p a r t i e s i n times o f  - 138 trouble.  Third p a r t i e s are named and brought i n t o the pro-  ceedings as w e l l , and may also s i g n an agreement.  I f after  t h i r t y days the p a r t i e s f e e l they cannot remain r e c o n c i l e d , 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 o r d e r w i l l be terminated. A l l aspects o f the c o n c i l i a t i o n procedures are considered as p r i v i l e g e d communication  and are not a d m i s s i b l e 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 ent i t l e d " T r i a l R e c o n c i l i a t i o n " which makes i t c l e a r t h a t entering  the agreement and resuming c o h a b i t a t i o n w i l l not be con-  strued as condonation o r r e c o n c i l i a t i o n i t s e l f ; the p a r t i e s thereby r e t a i n grounds i f they decide to seek a d i v o r c e l a t e r , and a r e given the opportunity to decide f i n a l l y a t the end o f the t r i a l period whether o r not they wish to enter a " t r u e " 41 reconciliation. Regarding the r e s u l t s o f the c o n c i l i a t i o n court's e f f o r t s , 4,095 a p p l i c a t i o n s f o r counseling were made i n 1962. Using the concepts and p r i n c i p l e s o f s o c i a l work, eleven t r a i n e d marriage counsellors r e c o n c i l e d s i x t y - f o u r o u t o f every one hundred couples who p a r t i c i p a t e d i n c o n c i l i a t i o n procedures; and three out o f f o u r o f these couples were s t i l l together one year l a t e r . ^*Xouis H. Burke, "The Role o f 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.  42  - 139 The a s s e r t i o n has been made that t h i s court i s demonstrating that the law can provide a h e a l i n g s e r v i c e to unhappy famil i e s , and i s exploding the myth that couples on the verge o f d i v o r c e cannot be helped.  I t i s f u r t h e r demonstrating  that  communication and cooperation between the l e g a l p r o f e s s i o n and s o c i a l work a r e r e s u l t i n g i n maximum b e n e f i t to estranged 43 couples and therefore to the community a t l a r g e .  This asser-  t i o n seems to be supported by a statement made by one o f the world's great lawyers, the l a t e Roscoe Pound:  " I n e f f e c t , what  there i s i n the way o f 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, f o r the most  p a r t , not by the agencies o f the law, but by the s o c i a l 44 workers."  But the f a m i l y court as i t has been described here  could i n f a c t 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 d i v o r c e law was the appointment i n 1948 by the American Bar A s s o c i a t i o n o f a S p e c i a l Committee on Divorce and Marriage Laws and Family Courts.  This committee i n 1950 s e t  Alexander, "Let's Get the Embattled Spouses Out. , .," p. 103. . -44 P a u l W. Alexander, "Not the Least Item: A S e c t i o n o f Family Law," ABA, v o l . 42 ( J u l y 1956) p. 733. • 5  - 140 up an I n t e r - P r o f e s s i o n a l Commission composed o f p r o f e s s i o n a l people from the f i e l d s o f p s y c h i a t r y , medicine, s o c i o l o g y , law, and the m i n i s t r y , to b r i n g about an improvement i n the d i v o r c e law; and the American Bar A s s o c i a t i o n ' s S e c t i o n on Family Law was the r e s u l t o f the work o f t h i s Commission.  CHAPTER V I I I CONCLUSION  The i n i t i a l e x p l o r a t i o n c a r r i e d o u t i n t h i s study i n d i cates that the adversary nature o f B r i t i s h Columbia d i v o r c e 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 c r e a t e new problems f o r those already s u f f e r i n g from damaged i n t e r p e r s o n a l r e l a t i o n s h i p s . Some o f these secondary problems have been documented i n t h i s study and are b r i e f l y o u t l i n e d as f o l l o w s :  one, the true f a c t s  i n a case are u n l i k e l y to emerge d u r i n g an adversary proceeding e s p e c i a l l y i n view o f the f a c t that many cases a r e undefended. A l s o , the adversary system prevents the p a r t i e s concerned from taking a mature look a t what caused the m a r i t a l breakdown.  The  law p e n a l i z e s those who attempt r e c o n c i l i a t i o n due to f a c t o r s involved i n condonation.  C o l l u s i o n bars a l s o discourage d i s -  cussion o f matters o f mutual concern o r serve to keep such discussion secret.  I n some cases even though a l l personal and  s o c i a l functions o f marriage have ceased to e x i s t , the l e g a l t i e must be maintained because n e i t h e r has committed a d u l t e r y o r i s w i l l i n g to engage i n fraud.  I n other cases, those who have  grounds f o r d i v o r c e are unable to o b t a i n same because o f l e g a l  - 142 costs and d i f f i c u l t i e s i n e s t a b l i s h i n g d o m i c i l e o r t r a v e l l i n g to a court t h a t 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 f o r c h i l d r e n of the marriage i s c a r r i e d out unless the custody i s contested.  In general, B r i t i s h Columbia  d i v o r c e 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 g a t i o n 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 r e c o n c i l e d o r at l e a s t divorced w i t h a minimum o f secondary damage and w i t h a r e c o g n i t i o n o f  responsibilities  involving children. Comparative l e g i s l a t i o n then has been examined w i t h a view to proposals f o r reform.  I n such an examination i t becomes  apparent that merely extending the grounds f o r d i v o r c e o r adding l e g i s l a t i o n aimed a t c o n c i l i a t i o n i s l e s s e f f e c t i v e when i n c o r porated i n systems where f a u l t theory i s r e t a i n e d than i n systems which do not proceed on an adversary b a s i s .  Hence,  progressive l e g i s l a t i o n combined w i t h s p e c i a l i z e d Family o r 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 w i t h d i v o r c e and f o r r e c o n c i l i n g 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 i m p l i c a t i o n s .  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 p e r t a i n i n g to divorce as t h i s i s p r e s e n t l y under the j u r i s d i c t i o n o f the Supreme Court.  Legislation  would need to be introduced to provide f o r c o n c i l i a t i o n procedures and s e r v i c e s .  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 i m p l i e s the use  of s p e c i a l l y t r a i n e d judges and lawyers who handle f a m i l y problems.  are q u a l i f i e d to  I t a l s o would i n v o l v e the use o f  t r a i n e d 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 s e r v i c e s 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 importance, 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 o f 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 d i s a d -  vantage o f combining both adversary and breakdown theories w i t h i n 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 d e a l i n g 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 t r a n s f e r r e d to a newly-created Family o r 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 l i f e and enable problem-solving.  family  C o n c i l i a t i o n services esta-  b l i s h e d without hinderance from a law s t r e s s i n g f a u l t and  an  adversary system seem most l i k e l y to b r i n g out the true reasons f o r m a r i t a l breakdown and lead to a mature c o n s i d e r a t i o n o f  - 144 these reasons.  Without such a process many marriages might  needlessly d i s s o l v e .  Hence, c o n c i l i a t i o n s e r v i c e s should be  a v a i l a b l e p r i o r to divorce a c t i o n .  Should they f a i l to r e -  u n i t e the m a r i t a l partners, they s t i l l provide an atmosphere whereby important d e c i s i o n s governing custody o f the c h i l d r e n , finances, etc. can be made.  I t would seem c a r e f u l l y considered  d e c i s i o n s 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 a l s o to be expanded i n harmony w i t h breakdown theory so that those who f i n d they cannot become r e c o n c i l e d may be enabled to use divorce as a means o f problem-solving.  Grounds t h a t i n c l u d e i n c o m p a t i b i l i t y  and d e s e r t i o n are i n keeping with breakdown theory.  Such  grounds would a l l o w divorce to be granted on r e a l i s t i c grounds, a f a c t o r which i s not the case when the s i n g u l a r ground o f a d u l t e r y i s present. Other proposals  f o r c o n s t r u c t i v e changes i n B r i t i s h  Columbia divorce l e g i s l a t i o n i n c l u d e the proposal that a marr i e d woman be able to acquire a d o m i c i l e separate from t h a t o f her husband and that a Canada-wide d o m i c i l e be e s t a b l i s h e d so that the courts are made more r e a d i l y a v a i l a b l e to those r e quiring their services. Furthermore, i t would be necessary f o r a Family o r C o n c i l i a t i o n Court e s t a b l i s h e d 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 s e r v i c e s f r e e o f charge i f t h e i r frequent was  to be assured.  use  I f not, i t would seem important that the  present Legal A i d s e r v i c e s be expanded to cover cases i n v o l v i n g divorce. In conclusion, the authors wish to submit that a Family o r C o n c i l i a t i o n Court with s j u r i s d i c t i o n over divorce and  the  custody o f c h i l d r e n , operating w i t h i n a framework r e c o g n i z i n g the breakdown o f marriages and e l i m i n a t i n g the f a u l t o r adversary system would do more to preserve marriages and a c t i n the best i n t e r e s t s of s o c i e t y 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  r e a f f i r m through c a r e f u l research followed by s o c i a l a c t i o n 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 b e l i e v e that i t i s p o s s i b l e to adapt a law to the needs of our times and to fashion i t i n t o a force f o r 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 f a m i l i e s i n t r o u b l e r a t h e r 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 o f s o c i a l justice.1  n. H. Foster, "Spadework f o r a Model Divorce Code," J o u r n a l o f 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 A p p l i c a b l e to Divorce and Matrimonial Causes  818  APPENDIX I.  BRITISH COLUMBIA RULES  British. Columbia Rules Applicable to Divorce and  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.  T;' — *;'f ;  ' '  Matrimonial Causes* '  :  ORDER L X  g  .  ..'v...- r:: ,.-;L'C  •  DIVORCE AND MATRIMONIAL CAUSES Definition  - . ,  ;/  1. 'In this Order "matrimonial cause" means a cause or proceeding 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" ."h^hsu" u ,:.-r„'.r:v:."tL'.f.:  Form of action . ...  !  ."..a;;  2. All matrimonial causes shall be by action commenced by writ of summons and shall be styled:—  .Mil  .."•„'* In the Supreme Court of British Columbia Between Plaintiff  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  .  Defendant. These rules purport to abrogate certain substantive rights concerning alimony and maintenance which formerly existed under the Supreme 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, notwithstanding that the said rules and order contain substantive law !  "arid 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 2 p o w e r 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 «••-. -  ,.  "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  and  1  819  .: .  :  •  - •>_-.  .'.(2) Unless otherwise ordered, every person with whom adultery is alleged to have been committed, whether such adultery 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 without 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 plaintiff 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  BRITISH COLUMBIA RULES  APPENDIX L  (a) A short statement of the relief claimed:  case it shall also prescribe the times within which the appearance and the statement of defence to the amended writ and amended statement of claim shall be delivered.  (&) The place and date of the marriage: (c)  (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.  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:  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 person a defendant in the actionDeath 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. •.:;  (/) The status of the husband before marriage: {g)  The domicile of the husband at the time of the marriage:  (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 Jurisdiction Act," all the facts upon which such claim is founded: -• (fc) The principal places of residence where the spouses have cohabited: .,  (2) Where no such claim is made against the estate, the plaintiff shall file an affidavit verifying the death of the defendant, 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 ...  ;  (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:  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 deceased 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 Canada, the other person who was involved in such offence shall not be made a defendant in the action unless a Judge otherwise orders. • -•' -.•  821  ;  (m) A statement of all previous proceedings instituted with 7 : reference to the marriage or to any issue thereof, ineluding^applications to the Parliament of Canada, ac.tions for alimony, or applications under any statute, > i '•-i'aujj t h result of such proceedings: .. e  (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 alleged to have been committed: . : • x; ,7 {  Statement of claim to befiledand served with writ • .. • 10. The statement of claim shall be filed at the time the writ is issued and shall be served therewith. . ,  (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:  Contents of • - •• r "7 >''" . 11. (1) The statement of claim shall include the following particulars:— - - •..;vi-s>SH ?tv^o.,.„-  (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 (q)  APPENDIX I.  The existence of any separation agreement or any financial arrangement between the spouses:  ".. (r) Where the writ includes a claim for alimony or maintenance, or for maintenance of the children of the marriage, 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 >"  :  (b)  jactitation of marriage:  ^  - .  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 exercise its discretion in favour of the plaintiff, notwithstanding the commission of a matrimonial offence; and (gr)  823  BRITISH COLUMBIA RULES  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, judicial 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-  (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 statement 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 deponent 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 Registrar 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, asto-thewrit itself. _ . • 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——: — ~ :  v  ?!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 appearance. . ";'V F>:r-"-'^ -'o '7' ' - -,- - ' •'. :  Where discretion asked ." .:::<"'. 'i-.y.l zyzd O J bo^sl ;.13._(1) Where a party who has been guilty of a matrimoriial 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.  .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 proceeding under any statute, Rule of Court, or practice whereby proceedings 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.  BRITISH COLUMBIA RULES  (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 consent 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 alterations in the copy which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amendments 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 delivering 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,..  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 without a jury: Provided that in an action for dissolution of marriage 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 directions concerning the intervention. ; " ••• _-7;.. !  Stay of proceedings . ; ' : . ' / . - i r l v i crisi;-i,\: Vn-yuvi 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 Hospitals Act" at the time.of the issue of the writ, he shall be  826  A P P E N D I X I;  BRITISH" COLUMBIA RULES  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.  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.  -(b) Where a party defendant to a matrimonial cause becomes 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 committee, 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 necessary 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 thinksfitfor payment of or security for the wife's costs, notwithstanding that the decision of the Court at the trial of the action is against the wife. . ; _ \. ^ ;> •<.. . ',-}, 0l  £  a  827  Permanent alimony, when begins 32. Permanent alimony or maintenance shall, unless otherwise ordered, commence from the date of judgment in the action. Increase or decrease of alimony ' '' ' ' 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 husband 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.* 1  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 "Legitimacy Declaration Act, 1858" (Imp.), so far as the same may be applicable thereto. r. .;. ;>:';;:.; :.<'.:.~:J  a-Lii! bt^riiM  MANITOBA  f^^yr:  'rp' ^l^:.,^'^'^  Q u e e n ' s B e n c h Act  ;  -rv-Mr'V^r &:A&f}\ni' RJSM., :  ...  r  "X:4' : <cs?(u ii  Alimony ,  ru  r  . ".  i.  H  1954, Ch. 52. , ^ ;vbruu edi v;u .feiiebcvyt asv/ Jnoxn ... ,.. . VVr...v . . H  K  1  tvSJz-:lr.?i3L  . ;,... .^.. r  vn  :  c o f  \j 5lX;The c o u r t shaU h a v e jurisdictioh^^to a n y w i f e w h o w o u l d be entitled to a l i m o n y b y the l a w of E n g land, o r t o a n y w i f e w h o w o u l d be entitled b y t h e l a w of E n g l a n d to a divorce, and to a l i m o n y as incident thereto, o r to a n y wife whose h u s b a n d lives separate f r o m h e r w i t h o u t a n y sufficient cause a n d under circumstances w h i c h w o u l d entitle h e r b y the l a w of E n g l a n d t o a decree f o r t h e r e s t i t u t i o n 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.  - --  0 !  ,  "  I'  - 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.  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.  No decree for divorce a mensa et thoro to be made hereafter, but a judicial separation.  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. • '  Judges of the Court.  ," 3 . The Lord 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.  1  fudYciSse'paobtamedby a  husband or wife for adultery, etc.  b e  **• ^ sentence of judicial separation (which shall have the effect of 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  a  CHAP., 118  DIVORCE AND MATRIMONIAL CAUSES  9 ELIZ. 2  Court to act on principles of the Ecclesiastical Courts.  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 Ecclesiastical 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.  Decree of separation obtained during the absence of husband or wife may be reversed.  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 payment of alimony 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 separation the wife to be considered a feme sole with respect to property she may acquire, etc.  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 separate 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.  Also for purposes of contract and suing.  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  1198  1960  DIVORCE AND MATRIMONIAL CAUSES  CHAP. 118  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. 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 corespondent.  11. The provisions respecting the property of a wife who has obtained 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 administratrix. [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 (b) bigamy with adultery; or (c) rape; or (d) sodomy or bestiality; or (e) 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 petitioner shall make the alleged adulterer a co-respondent t o t h e s a i d peti1199  CHAP. 118  Cause may be tried by a jury.  DIVORCE AND MATRIMONIAL CAUSES  9 ELIZ. 2  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.  Court to be satisfied of absence of collusion.  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.  Dismissal of petition.  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.  Power to Court to pronounce decree for dissolving marriage.  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.  Alimony.  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?mdam? -"-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 a  ya  only, claim damages from any person on the ground of his having committed adultery with the wife of such petitioner, and such petition shall be served on the alleged adulterer and the wife, unless the Court dispenses 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 to pay'costs  Whenever in a petition presented by a husband the alleged adul* 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° astocus1ody of children.  I any suit or other proceeding for obtaining a judicial separation decree of nullity of marriage, and on any petition for dissolving 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  a e  t e r e r  s  n  o  r  a  a  GHAP.HS  DIVORCE AND MATRIMONIAL CAUSES  9 ELIZ. 2  Intervention by AttorneyGeneral.  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.  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.  Service of notice of intervention.  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.  Directions concerning intervention.  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.  Power to stay proceedings to permit intervention.  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 question is ordered to be tried, a jury may be summoned as in the Common 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 attendance 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 Westminster, 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 qualifications, 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  R i g h t s to challenge.  S u c h question to b e r e d u c e d into w r i t i n g a n d a jury t o be s w o r n t o try it.  Judge to have same p o w e r s as at N i s i Prius.  DIVORCE AND MATRIMONIAL CAUSES  CHAP. 118  (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 summoned 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.  B i l l s o f exceptions, s p e c i a l verdict, and s p e c i a l case.  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.  Affidavit i n support o f a petition.  , 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.  Service o f petition.  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.  Examination 01 p e t i t i o n e r .  3 2 . The Court may, if it thinks fit, order the attendance of the 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  CHAP. 118  DIVORCE AND MATRIMONIAL CAUSES  9 ELIZ. 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 3 4 . In any case in which the Court pronounces a sentence of divorce order settleSty for benefit judicial separation for adultery of the wife, if it is made to appear to of innocent the Court that the wife is entitled to any property either in possession of party and children of reversion, the Court may, if it thinks proper, order such settlement as it marriage. 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. or  Mode of taking evidence.  3 5 . 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 examined 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.  Court may issue commis- 3 6 . (1) Where a witness is out of the jurisdiction of the Court, or sions or give where, by reason of his illness or from other circumstances, the Court orders for examination does not think fit to enforce the attendance of the witness in open Court, of witnesses abroad or unable to . the Court may order a commission to issue for the examination of such attend. 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 examination 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 37. The rules of evidence observed in the Superior Courts of Comevidence in courM°tobe' Law at Westminster are applicable to and shall be observed in the observed. trial of all questions of fact in the Court. [20 & 21 Vict., c. 85, s. 48]; R.S. 1948, c. 97, s. 37. w m  o  n  Attendance 38. (1) The Court may, under its seal, issue writs of subpoena or of witnesses on the Court. 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 ProcedureActi 1854, in cases within the provisions of that Act. [20 & 21 Vict., c. 85, s. 49]; R.S. 1948, c. 97, s. 38. Penalties for false evidence.  39. All persons wilfully deposing or affirming falsely in any proceeding 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.  Costs.  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 subject of costs only. [20 & 21 Vict., c. 85, s. 51]; R.S. 1948, c. 97, s. 40.  Fees to be regulated.  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 marry again.  a  42. When the time limited for appealing against any decree dissolving i a g e or declaring a marriage null and void has expired, and no 1205  marr  CHAP. 118  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 P" i g e had been dissolved by death; but no clergyman in holy orders of the United Church of England and Ireland shall be compelled 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.  compdild o certain" marriages.  m n  o r m a r r  26  a  In any case where either of the parties with respect to whom 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 appealing 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.  ascertain  marriages.  any^hurch toperform^ mony!ny " mayperfOTrrf such service. 01  C  a  DIVORCE AND MATRIMONIAL CAUSES  ere  Eng^and'for 1  comirsation n  minister of any church or chapel of the United Church England and Ireland refuses to perform such marriage service between P s who but for such refusal would be entitled to have the same i performed in such church or chapel, the minister shall permit 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. W  n  e  n  a  n  v  O I  a  n  v  e r s o n  s e r v  a  n  c e  v  o m  4 5 . After this Act has come into operation no action shall be maintamable in England for criminal conversation. [20 & 21 Vict., c. 85, s. 59]; R.S. 1948, c. 97, s. 45.  Sdmafy of ^ * J f° Judge Ordinary of the Court for Divorce and the court for Matrimonial Causes for the time being to sit in Chambers for the disDivorce and ° Mattimomai p tch of such part of the business of the said Court as can in the opinion charnbers °^ * ^ Judge Ordinary, with advantage to the suitors, be heard in s  a  t  a m  1206  n  e  s a  a w r i n  r t  n  e  1960  DIVORCE AND MATRIMONIAL CAUSES  CHAP. 118  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 chambers  ^  ^ J ^8 Ordinary when so sitting in Chambers has and ^ i 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.  s n a  exerc  n es a  u<  e  se  Indemnity to 48. A l l persons and corporations who shall, in reliance on any order corporations, etc., making or decree, make any payment to, or permit any transfer or act to be payments under orders made or done by, the wife who has obtained an order of protection shall, afterwards reversed. 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. Where alleged 49. In all cases now pending or hereafter to be commenced in which, adulterer a corespondent, < on the petition of a husband for a divorce, the alleged adulterer is made Court may order him to co-respondent, or in which, on the petition of a wife, the person with be dismissed from the suit. 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. Bills of 5 0 . The bill of any proctor, attorney, or solicitor for any fees, proctors, attorneys, etc., charges, or disbursements in respect of any business transacted in the to be subject to taxation. 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  DIVORCE AND MATRIMONIAL CAUSES  CHAP. 118  mrymay" nisTto^new trial, etc. di  9 ELIZ. 2  ial been had by a jury before the Full Court or before the Judge Ordinary, or upon any issue directed by the Full Court 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. W  o  r  D  n  e  r  e  a  n  v  tr  n  a  s  v  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 E x t r a c t from: Chap. 130 EQUAL GUARDIANSHIP OF INFANTS ACT Sections: 12.  I n case a decree f o r j u d i c i a l separation o r a decree e i t h e r n i s i o r absolute f o r d i v o r c e i s pronounced, the Court pronouncing the decree may thereby d e c l a r e the parent by reason o f venose misconduct the decree i s made to be a person u n f i t to have the custody o f the c h i l d r e n ( i f any) o f the marriage; and, i n that case, the parent so declared to be u n f i t i s not ent i t l e d as o f r i g h t to the custody o r guardianship o f such c h i l d r e n . R.S. 1948, c!39, s l 2  13.  (1) The Court may, upon the a p p l i c a t i o n o f e i t h e r parent o f an i n f a n t , make such order as i t may think f i t regarding the custody o f the i n f a n t and the r i g h t of access thereto o f e i t h e r parent, having regard to the w e l f a r e o f the i n f a n t , as to the conduct o f the parents, and to the wishes as w e l l o f the mother as of the f a t h e r , and may, a l t e r , v a r y , o r discharge such o r d e r on the a p p l i c a t i o n o f e i t h e r parent, o r a f t e r the death o f e i t h e r parent, o f any guardian. (2) I t i s not necessary f o r any parent who i s under the age o f twenty-one years to b r i n g o r oppose any a p p l i c a t i o n under t h i s s e c t i o n by a next f r i e n d o r guardian ad l i t e m . R.S. 1948, c l 3 9 , s l 3 , 1956, c22, s2.  - 150 APPENDIX IV BIBLIOGRAPHY Alexander, P. W. "The F o l l i e s o f Divorce: A Therapeutic Approach to the Problem."- American Bar A s s o c i a t i o n J o u r n a l , v o l . 36 (February 1950), pp. 105-108, 168-172. Alexander, P.W. "Let's Get the Embattled Spouses Out o f the Trenches." Law and Contemporary S o c i a l Problems, v o l . 18 (Winter 1953), pp. 98-106. Alexander, P.W. "Family Cases are D i f f e r e n t - Why Not Family Courts?" Kansas Law Review, v o l . 3, no. 1 (October 1954), pp. 26-35. Alexander, P. W. "Not the Least Item: A S e c t i o n o f Family Law." American Bar A s s o c i a t i o n J o u r n a l , v o l . 42 ( J u l y 1956), p. 733. B a m e t t , G. H. Cases."  "Emotional Problems Encountered i n Divorce J o u r n a l o f Family Law, v o l . 3 ( F a l l 1963), p.208.  Baxter, I.F.G* "The Law of Domestic R e l a t i o n s * " Canadian Bar Review, v o l . 36, no. 3 (September 1958), pp. 229-332. Baxter, I.F. G. "Recognition of Status i n Family Law - A Proposal f o r S i m p l i f i c a t i o n . " Canadian Bar Review, v o l . 39, no. 3 (September 1961), pp. 301-350. Beale, C. L. "Increased Divorce Rates Among Separated Persons as a Factor i n Divorce s i n c e 1940." S o c i a l Forces, v o l . 29 (October 1950), pp. 72-74. Beard vs. Beard (1945) 2 A l l ER Biggs, J . M.  306  " S t a b i l i t y of Marriage - A Family Court?"  A u s t r a l i a n Law J o u r n a l , v o l . 34 ( A p r i l 1961), pp.343-353. B l u n t v s . Blunt (1943) 2 A l l ER 76 Brewster vs. Brewster (1945) 2 WWR  382  - 151 B r i t i s h Columbia Supreme Court Rules. Order 60 a p p l i c a b l e to Divorce and Matrimonial Causes, 1961. The B r i t i s h North America A c t 1867. 30 and 31 V i c t o r i a . This Statute may be found i n v o l . 5, Revised Statutes o f B. C., 1960. Brown vs. Brown (1909) 14 BCR 142 Brown, L. N. " E n g l i s h Family Law Since the Royal Commission." U n i v e r s i t y o f Toronto Law Review, v o l . 14, 1961, pp.52-66. Burke, L. H. 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