GENERAL ARTICLES

Divorce—A Racket And a Scandal

Canada grants a divorce for just one reason — adultery. Half our divorces are won for another reason—perjury

JAMES H. GRAY June 15 1947
GENERAL ARTICLES

Divorce—A Racket And a Scandal

Canada grants a divorce for just one reason — adultery. Half our divorces are won for another reason—perjury

JAMES H. GRAY June 15 1947

Divorce—A Racket And a Scandal

Canada grants a divorce for just one reason — adultery. Half our divorces are won for another reason—perjury

JAMES H. GRAY

THE SCENE is set in a hotel bedroom, any night of the week, anywhere in Canada. The man is clad in pyjamas, the woman in her slip and stockings, over which she is wearing a nightgown. They are sitting in a couple of standard hotel chairs, perhaps toying with drinks and carrying on a desultory conversation.

A knock on the door signalizes action. They quickly down their drinks, douse the lights and leap into bed. There is a second knock, probably a third. Then the man gets up, pulls on a light and opens the door. Three people enter the room, a woman and two men—detectives. The ceiling

lights flick on and one of the men takes out a notebook. He asks three or four perfunctory questions to establish the identity of the pair in bed. The other man may look around the room and make a couple of notes. The woman who came with them is likely to say nothing. If she does speak it will be strictly for the record and will be some variation of:

“Oh, John, then it’s true you were being unfaithful. What a fool I was ever to trust you! Now I’m going to get a divorce! I’m through with you forever!”

That's the signal to break it up. John’s wife turns and leads her detectives from the room. The door closes on them. The young woman emerges from the bed.

“Well, that's that,” she says as she picks up her dress and heads into the bathroom to put it on. John takes off his py jamas, gets into his clothes and calls a hurried wore! of thanks and good-by through the bathroom door as he goes out.

IIow to Fool the Courts

NO, THIS isn’t a scene from a bedroom farce comedy. The performances have been outrageously hammy, even by Hollywood standards, yet the fact remains that this has been a scene from a Canadian tragedy, the operation of the Canadian divorce mill.

The same scene, or others with only slight variations, is enacted on an average of 10 times every night all over Canada. For this is the way evidence is manufactured to “prove” the sole grounds for divorce in eight provinces—adultery. In Nova

there’s another cause, seldom used, cruelty.

There are signs that the postwar rush of service divorces is waning. But reports from across the country indicate that there is no appreciable diminution in the number of marriages winding up in divorce courts. Complete figures are not yet in for last year’s divorce total, but a good guess is that close to 7,000 marriages were dissolved. From the numbers of applications filed during the first four months of this year there is every indication that 1947 will not be far below 1946.

And so the dreary bedroom farce goes on, and will go on and on until something is done to bring some sanity and decency into our system of

unmarrying people to whom marriage has become intolerable.

Between the first act and the second there must be an intermission of months stretching sbmetimes into years. Eventually, however, Mrs. John will have her day in court. Actually court procedure may take only 10 minutes. She may appear in any high court in the country, outside Quebec, or before the divorce committee of the Canadian Senate. She will be sworn to tell the truth, the whole truth and nothing but the truth. Instead of the truth she will tell lies. She will tell lies because no matter how awful the true story of her married life may be, the truth will not set her free. You can’t get a divorce in Canada by telling the truth, unless adultery is involved. You can only get it, barring adultery, by lying, cheating and committing fraud upon the courts.

Mrs. John, on the witness stand, will tell a story that runs something like this. She will outline briefly her marital difficulties, which may have the added merit of being true. She tells the judge she heard reports that her husband was being unfaithful to her. At first she refused to believe them, or, when she repeated the rumors to John he laughed at her. Eventually she decided to investigate and hired detectives. They followed her husband and a strange woman to a hotel where they registered as man and wife. The detectives called her, she went with them to the hotel and found John in bed with the other woman.

After the detectives have corroborated her story a bored judge will ask her two questions:

“Have you had intimate relations with your husband since you found he was unfaithful to you?”

adultery and thus provide you with evidence for a divorce suit?”

The plaintiff mumbles a couple of negatives and the judgment is entered. A decree nisi is granted and six months later the divorce is made absolute.

The interim is provided to allow objections to be raised by third parties to the granting of the divorce. It also provides time for evidence of collusion to come to light. It’s rare indeed that anything happens between the granting of the first decree and the signing of the final papers. But it has happened. A couple of years ago one of the parties to a divorce action in Winnipeg had a change of mind. She went to the attorney-general of Manitoba* confessed that collusion had existed and told all. The uproar was terrific and when it subsided the lawyer who had handled the case was in jail for subornation of perjury. But business continued to boom in the divorce courts.

The hotel bedroom scene, now standard equipment in most collusive divorce actions, has been refined somewhat in recent years. In the old days it was enough for the defendant to go to a hotel and register with a woman other than his wife. A sceptical judge ruled that this was not proof positive of adultery. Then, for a while, merely being found in a hotel room, though fully clothed, was considered good evidence. It may still be in some places. But it is now considered more circumspect to play it safe and make things look more realistic by undressing.

Fraud Costs Money

ALL THIS comes to pass because, on the almost unanimous testimony of those most intimately acquainted with their operations, Canadian divorce laws are among the most backward in the modern world. Legally there is only one ground for divorce in Canada—adultery. But as Major David Groll, M.P. for Toronto Spadina, pointed out in a recent speech in the House of Commons, there are, in actual fact, two groundsadultery and perjury.

Any informative statistics on divorce, save the number of decrees granted, are almost impossible to obtain. But it is a safe guess that of the 7,000 divorces granted last year, at least a half, and possibly two thirds, were founded on manufactured evidence either in whole or in part, on collusion and the swearing of false oaths.

I asked a Canadian Senator, who has served for several years on the Senate divorce committee, to guess on the proportion. He refused but suggested that the proportion of collusion cases was probably lower than most people believe.

“I think,” he said, “that at least a quarter of the cases that come before us do not use the evidence of private detectives at all.”

Private detectives are used in many cases where not only is there no collusion but there is actual vigorous opposition by one of the parties to divorce. It may be unfair to Continued on page 51

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private detectives, yet when they are involved in the case certain senators and judges are suspicious. On the other hand, collusion is possible, and indeed highly probable, in many cases where no private detectives are hired. With the current high cost of divorce it is probable that many persons seeking to liquidate a marriage turn to friends to help supply corroborative evidence of adultery. At best the senator’s estimate leaves 75% of the cases open to suspicion. Let’s leave it at that.

The condition that faces those Canadians whose marriages have gone sour was summarized by a veteran judge of the Manitoba Court of King’s Bench, Mr. Justice J. D. Adamson. In one of his recent judgments he said:

“People do make mistakes in marriage and discover too late that they cannot live together, and so separate. Under the law as it is at present, such persons cannot be divorced and given a chance to start over again upon a respectable basis unless one of the spouses commits adultery, which, by some means, not only comes to the attention of the other spouse, but actual evidence of which comes into the hands of the other spouse; or unless they manufacture a set of circumstances upon which the court is asked to find that adultery has taken place. This means that respectable persons who neither commit adultery nor perpetuate a fraud upon the court are without relief. The law gives relief to persons when one spouse commits adultery or engages in fraud.”

So it happens that all over Canada people are turning to fraud in order to have hopeless marriages dissolved.

They are finding it an expensive proposition, but the strength of their determination to obtain their freedom may be judged by their willingness to pay the piper, in both coin of the realm and in terms of personal humiliation. Let’s get back to our little scene in the hotel room.

IIow to Get a Divorce

Let’s leave to one side for the moment, at least, any discussion of reasons for the failure of marriages today. Let’s say that John’s marriage hit any one of the innumerable shark tooth shoals of matrimony and was sunk without leaving a trace of love or affection. Here were two people with but one desireto be rid of each other, and for good. One or the other would consult a lawyer. We’ll go on from there and take a look at the cost of operating the divorce mill.

Divorce law is a specialized field. Some lawyers do little else, others refuse to handle these cases at all. The chances are that if John consulted his family lawyer he would be advised to see a specialist. Or, and this happens frequently, he might simply jot down the name and address of one of the private detectives who advertise in the personal columns of the newspapers. When he eventually gets to a lawyer he may hit one who does a package job, i.e., who hires the detectives and arranges for the corespondent. The likelihóod is, however, that the lawyer, for his own protection, will send John to a detective who will aid in the production of the hotel-room episode.

If John lives outside the Province of Quebec he may be able to get a complete treatment for $500. If he is a Quebecker, the costs are likely to be somewhat higher because his case must go to the Canadian Senate. These figures are based on the assumption

that both parties are equally fervent in their desire to get rid of the other. If one party opposes the action then the trouble and expense can be endless, and no divorce may be possible.

But for the ordinary run-of-thedivorce-mill product, the cost scale is fairly uniform. In Toronto, Winnipeg or Vancouver the lawyer will require around $200 for a fee. Some lawyers in Toronto shade that $50 for servicemen and I was told that in Winnipeg, if you’re hard up, it’s possible to get legal action for around $150. The private detective may ask $150 and settle for $100, if the case is cut and dried with no nonsense. The girl in the case has to be paid. That may take $25 or $50, depending on the conscience of the detective who usually arranges for all the props for the hotel-room drama. Sometimes the detective includes the price of the props—girl and liquor—in his fee. Getting the corespondent comes easy. She is only a sort of animated name on a piece of paper, anyway, and never appears in court. The name that she gives the invading spouse when the scene is set is unlikely to be her own. With court costs and fees John is unlikely to have much left out of $500 by the time he is through.

If his divorce has to go through Parliament, which means in fact the divorce committee of the Senate, he can add $200 to the cost at the outset. That is the price of getting a private act through Parliament. Nor is that all. The Senate insists upon the personal testimony of witnesses. This means they must be transported to Ottawa and back and their expenses paid in Ottawa during the hearing.

B. C. Divorces the Quickest

The length of time that must elapse between beginning and end of a divorce suit varies widely from province to province. In Ontario and Quebec a full year may pass between start and finish. In New Brunswick and Nova Scotia it may take from three to six months and a similar period may elapse on the prairies.

British Columbia, however, boasts of the quickest and easiest divorces in Canada. The record there, according to one lawyer, is nine days between the filing of the writ and the granting of final dissolution. The rush for divorces in British Columbia is the greatest in Canada and last year 2,000 marriages

were dissolved there. This has slowed things up so that at least two months are likely to pass now between application and approval.

British Columbia is the only province that has thrown out the decree nisi and grants absolute divorce immediately. Theoretically, as one lawyer said, it is possible to get married and get divorced once every three weeks in B. C. In the seven other provinces with their own divorce courts, people with remarriage in mind will have to wait for at least a year, in some cases perhaps two years, before they can take a second plunge into the matrimonial pool.

Once the case gets into court the going is easy. Some are disposed of in as little as 10 minutes. Others may take an hour. Par for the course with a cut and dried case is probably half an hour, though the accidental raising by a lawyer of some obscure precedent or legal fine point can stymie proceedings. Some judges, because of religious scruples or for other reasons, have reputations for being tough on divorce cases. Court-wise divorce lawyers, aware of judicial idiosyncracies, simply jockey their cases to get before other judges and the mill grinds on.

When no children are involved the divorces grind from both the Senate and the courts automatically. The hearings are best described as perfunctory. Where there are children the Senate is inclined to be more thorough in an effort to protect the innocent victims of the breakup of a family. But at best, this effort at protection can only be haphazard. Mr. Justice J. C. McRuer of Ontario, himself no advocate of easier divorce, spoke out recently against the glaring disregard of the interests of the children in divorce proceedings. He said:

“Every trial judge who has taken divorce cases was shocked by the indifference shown legally concerning the custody of children. There is an excellent system in Ontario for looking after the property of children should they suffer an accident. But nothing has been done about the welfare of a child whose home is breaking up. It is a matter for the representatives of the church to see that children of broken homes are taken care of in the best possible way.”

There is not much that either the courts or the Senate can do about protecting the interests of the children,

even though they can and do take particular pains in cases where children are involved. They can slow down the tempo of proceedings and conscientiously try to award custody of children to the parent most likely to do the best, job. But how can they tell, really, when too often only one parent appears before them, when more than likely that parent has sworn to false testimony? They can refuse the divorce, but does that solve the problem of the children? Of course not. There Is always an even chance that such a decision would be the worst thing that could happen to the children.

Not Like Reno—Yet

That divorce in Canada is developing into a racket and a scandal may surprise Canadians who have long cast supercilious glances at Reno and Hollywood. It’s true that our record is j still much better than that of the United States, yet the fact remains that the divorce rate in Canada has been growing at an appalling rate. It has been doubling, almost, every five years since the first great war. Here are some figures:

Year Divorces 1918...................... 114 1930...................... 875 1935...................... 1,431 1940...................... 2,309 . 1945 ...................... 5,076 1946 ............(estimated) 7,000

In 1918 only one out of every 500 ! marriages ended in divorce. Today the I ratio is less than one in 20 and it is j falling all the time. Here are the j divorce totals by provinces for 1945, compared with 1941:

1945 1941 Prince Edward Island 2 1 Nova Scotia....... 158 68 New Brunswick .... 171 87 Quebec............ 177 48 Ontario............ 1,940 949 Manitoba.......... 405 242 Saskatchewan...... 282 146 Alberta............ 575 311 British Columbia. . . 1,366 609

These figures are a sign of the times, and they are ^something more. They show that the problem of divorce is not local but national in scope. Why divorce is on the increase ought to concern the whole nation. Yet, because of the way our divorces are obtained, it’s impossible to tell from the evidence why Canadian homes are breaking up in ever-increasing numbers. Sociologists can make a number of intelligent guesses. The housing shortage is one factor because it forces newlyweds to double up with parents. Crowded housing also creates in-law trouble, is a potent agent for putting the hex on marriages. Emotional upheavals growing out of the war, long separations of husbands and wives and hasty wartime marriages on short acquaintance are other elements.

Yet one authority suggested in Ottawa that the wartime service marriages are not reaching the courts in the numbers expected. One reason for this may be the welfare offices established by the Department of Veterans’ Affairs. When servicemen approach the welfare officer and start talking divorce they get two pieces of advice. To have patience, and go and see the nearest family welfare bureau that specializes in family relations. Our expert had no statistics, but he was confident, that hundreds of prospective divorces were being prevented. One standard treatment of an ailing service marriage is to get the young people off by themselves into homes of their own,

if home is only a couple of furnished rooms.

Two or three years ago divorces of service personnel accounted for perhaps 75% of the number being granted. Today the national average has fallen to about 50% and is going lower.

Adultery Is No Crime

What impresses many observers on the prairies and in the Senate is the number of long-standing civilian marriages that are ending in divorce. Marriages of 10 and 20 years duration are going on the rocks in increasing numbers.

One Senator, who often takes the plaintiffs aside after a hearing in an effort, to pry out the (ruth, said that he was surprised how often a middle-aged woman told him that her sons or daughters talked her into getting a divorce after long-term separations. This, he said, seemed to simplify their social life and indicated that the stigma once attached to divorce was rapidly disappearing.

Yet there is no certain way to get at the truth of the question because the only legal excuse for divorce in Canada is adultery. Here we encounter a curious paradox. Adultery is not a crime in Canada. No crime that a man can commit, however, is grounds for divorce, except if it involves adultery in some form.

A man may hold up a bank, shoot a bank employee and be sentenced to 10 or 15 years imprisonment. His wife is tied to that man irrevocably. She cannot get a divorce.

Or suppose that a man commits murder and is sentenced to life imprisonment. His wife is likewise irrevocably tied to him because she cannot get a divorce.

Or take the case of a young man whose wife is afflicted with incurable insanity. She may linger for years in an asylum and the husband is barred from seeking a divorce as long as she lives.

A husband may be an utter scoundrel. He may beat his wife, he may become an incurable alcoholic, he may torment her in countless ways, but unless she can catch him in adultery she is tied to him for life.

That is the law, as it exists in Canada today. It is, generally speaking, the divorce law we inherited from Britain at the time of Confederation.

Prior to 1857 divorce in Britain was reserved exclusively for the wealthier classes. It could be obtained only through act of Parliament which made it too expensive for most people. In 1857 the British set up divorce courts and made adultery the sole cause of divorce. At first only husbands could sue on the ground of adultery alone. The wife had to have that and such things as cruelty, desertion or other grave offenses. This act was amended several times, notably to include the decree nisi providing for a waiting period between giving judgment and the granting of the final divorce.

This was the divorce law that Canada acquired at Confederation. It was not until 1925 that the double standard wTas abolished. Save for that and more minor amendments that remains our law today, in seven of the nine provinces. Quebec has no divorce law and so residents of that province have to go to Parliament to have marriages dissolved. Until recently Prince Edward Island was in the same boat. Nova Scotia and New Brunswick both had divorce courts before Confederation and their jurisdiction was preserved by the B. N. A. Act. Nova Scotia, incidentally, is the only province which makes cruelty a ground for divorce, but even there adultery is the main cause.

The only other important change in

the general law Is the abolition of the decree nisi in B. C. already mentioned.

The British, from whom we inherited the basic law and our court procedure, have substantially changed their divorce laws in recent years. In Britain today divorce may be granted for adultery, desertion without cause for three years, cruelty or insanity of an incurable nature causing treatment in an institution for five years prior to application for divorce.

Barred from the courts on rational and honest grounds, thousands of Canadians are being forced into the use of trickery, into committing frauds on our courts, into the obscene mummery of hotel-room dramatics. Because adultery is the only cause for divorce, evidence of adultery has to be manufactured. Yet many serious students of the problem do not rate adultery as the basic cause for the breakdown of marriage. On that point here is the opinion of H. L. Cartwright, K.C., from the preface to his standard work, “The Law of Divorce”:

“Considerable experience in the field of matrimonial difficulties has led me to believe that adultery is not a reasonable grounds for dissolving a marriage for I have come to the conclusion that it occurs far more frequently after the marriage has broken down than before. In other words it is an effect of the breakdown rather than the cause ... I know of several cases where a soldier overseas had started a divorce action against his wife who had borne a child after he had been away a year or more, but has dropped the action on coming back. In those cases adultery was apparently not of vital importance . . . Speaking for myself I would abolish adultery as a grounds for divorce and substitute separation for some specified period as the only grounds for divorce.”

What Holds Up Reform?

Yet whenever efforts are made in Canada to profit by outside experience and modernize our divorce law’s, a stone wall of opposition is encountered from persons with deep religious opposition to divorce of any kind. Perhaps one of the difficulties arises from the press that divorce reformers get. Whenever they advocate changes in our divorce law it gets translated in headlines into an appeal to “ease” divorce laws. That at once conjures up visions of the worst in the Hollywood-Reno system, where one spouse can divorce another for such trivia as listening to quiz programs, eating toast in bed, or making salad without garlic.

In actual fact, few if any of the advocates of divorce law reform have anything Renoish in mind. They don’t want to make divorce easy. They only want to make it honest. They want to make it possible for decent people to be able to find a decent, an honest, a clean solution of their marital difficulties.

This, not a cafeteria system of quick divorces on the run, was what the Canadian Bar Association was driving at last summer when it passed its resolution on divorce reform. The Bar Association urged the Government to widen the grounds of divorce to include desertion for more than three years, gross cruelty, and five years of incurable mental disease. It was the motive, too, of the Manitoba legislature which at the last session urged the Dominion Government to set up a royal commission to study the whole problem.

Their goal, in short, is to fumigate and disinfect our whole divorce court system, throw out the filth and the divorce mill and make it possible for honest men and women to go into our courts and sv’ear an honest oath. ★