Ottawa’s creaky divorce machine
Every year Canada’s parliament grinds out about four hundred divorces. The method is antiquated, costly and unjust. But our major parties think it’s politically dangerous to tamper with it. Here’s a report on
CANADA’S system of granting divorces contains a political fossil, a relic of the Middle Ages that survives nowhere else. It’s almost a century since Britain abandoned a practice still followed here—dissolution of marriage by private act of parliament. By common consent it was a bad practice— costly, capricious and unjust. But for the benefit of Quebec and Newfoundland which have no divorce courts, the Parliament of Canada still grinds out some four hundred divorces a year with machinery like that Britain dismantled in 1857. Turning the crank of that machinery are the twenty men and two women who compose the Divorce Committee of the Canadian Senate.
Next winter, as for some years past, the Senate Divorce Committee will be under fire in the House of Commons as opposition MPs, mostly CCF members, try again to rid parliament of this unpalatable chore. Most acts of parliament originate in the Commons and then go to the Senate, but divorce bills go the opposite way. Evidence is heard by the Senate Divorce Committee; on the committee’s recommendation the Senate then passes divorce bills and sends them to the Commons in large batches. Normally the House of Commons (jasses these en bloc, taking the Senate committee’s word that the evidence justified the bills. But as a result of the recent campaigns for divorce reform, MPs lately have been taking their own look at some divorces and asking embarrassing questions. Last session they threw out five divorce bills, exactly half of all the contested cases which had got through the Senate. Some MPs threaten to block all divorces, until the government promises to reform the system.
The divorce fight crosses party lines. Nobody’s happ; Sut where is the compromise?
Reformers want Quebec and Newfoundland divorces handled not by parliament but by the Exchequer Court or some other federal tribunal. Their reasons fill hundreds of pages of Hansard, but they boil down to three main charges:
1. That parliament is wasting it« time passing acts for the relief of individuals. Nobody denies this; the method is tolerated only because no alternative can be agreed upon.
2. That parliamentary divorces are so costly as to l>e unfair to the poor. This also is undenied. In eight provinces a court divorce can be got for as little as $350. Parliamentary divorces cost $1,000 to $1,500 even for people who live near Ottawa. Newfoundlanders have the added expense of bringing their witnesses all the way to Parliament Hill, and even on tourist flights the ret urn fare from St. John’s to Ottawa is $163.95.
3. That the Senate Divorce Committee on which both the Senate and the House rely to investigate each case is incompetent, and its findings unreliable. This is the charge that sets the fur flying in parliament.
Senators rarely die of overwork, but by Senate standards the divorce committee is a model of industry. Last session it sat fifty-two days on four hundred and fourteen petitions, hearing at least two witnesses apiece in uncontested cases and many more in the seventeen which were opposed. Its members are impressively qualified eight are lawyers who might well have been made judges instead of senators. All resent being booed rather t han thanked for doing a hard unwelcome task.
Yet for all its effort the committee provides ammunition, year after year, for the Commons’ campaign against the divorce system. Sometimes by its own fault, sometimes by circumstance, it is made to appear gullible or stony-hearted or both.
Last session, two frequent witnesses before the committee were a pair of private detectives who were sentenced, less than a year ago, to fifteen months in jail for trying to fabricate evidence for a court of justice. They set a trap for a husband whose wife wanted a divorce. They rented a hotel room, hired a woman to occupy it, had her telephone the husband to say she was a friend of his sister, and wouldn’t he drop over for a drink. The husband, a wary character, telephoned his sister in Montreal and confirmed his suspicion that she had no such friend. He took the police with him to the rendezvous and the private detectives were caught in their own snare. They were later acquitted on appeal, on the technical ground that the Senate committee for which the evidence was fabricated is not “a court of justice.” But the appeal court judge who freed them called their conduct “contemptible.”
In three of the ten contested cases passed by the Senate and sent on to the House last session, these discredited characters were important witnesses for the petitioner. The Commons passed one of these bills after a rigorous re-hearing, having satisfied itself on other evidence that the petitioner deserved his divorce. The two others failed to pass. No voice was raised in any party to challenge the CCF contention that two men found guilty of such an offence had forfeited all claim to credibility, and that their testimony was worthless.
Liberal MPs might be quicker to defend the judgment of their brethren in the upper house but for one divorce bill which passed the Senate, though not the Commons, about eighteen months ago. It was widely publicized at the time in various publications, including this one. Briefly the circumstances were these:
A rich Montrealer wanted a divorce which would relieve him of the forty-dollar weekly allowance he was paying, by order of a Quebec court, to his estranged wife. Twice he hired detective agencies to get evidence against her; both failed. Then he hired two men whom he met, he said, when one came in to sell him insurance. For one thousand dollars plus expenses they soon produced a marvelously detailed account of what they claimed was the wife’s adultery, and a man willing to swear he had committed it with her. The “corespondent” turned out to be the roommate of one of the “detectives,” but he denied under oath that he’d got any money for testifying.
The wife, a polio victim who still walks with a limp, said she had indeed accepted the man’s invitation to drive her home. He had then attempted to rape her, she said, meanwhile tootling his horn to summon the two “detectives” to witness the deed. She had a doctor to testify that on the date in question he had treated her for bruises, scratches and shock. However, the Senate committee rejected the wife’s evidence and believed the “detectives.” It recommended the divorce, which was thereupon passed by the Senate and sent to the Commons with a batch of others.
There it was challenged by Erhart Continued on pcif'e 61
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Regier, the young British Columbia MP who has led the CCF’s campaign for divorce reform ever since his election in 1953. The House sent the bill for re-study to its own Private Bills Committee. At that point the lid blew off the case. The husband withdrew his divorce petition; the reason he gave in writing was the nasty publicity he had got, but his lawyer told the Commons committee that the witnesses he had hiredturned out to be "utterly untrustworthy.” The divorce committee has not yet regained, among MPs, the stature it lost by accepting their tall story.
Actually, other less sensational cases are graver indictments of parliamentary divorce. Any court, however sound in theory and concept, can make stupid mistakes from time to time. But some recent judgments of the Senate Divorce Committee have been bad, not through individual error but through defects in the system itself.
Last winter one husband came seeking a divorce on the usual ground that his wife had committed adultery, and he had no trouble proving this because the wife admitted it. She was an ignorant amiable wench who hadn’t lived with her husband for some years; she earned her living as a waitress. She hadn’t committed adultery as often as her husband’s witnesses alleged, she told the committee, but on one occasion she had decided that since he was stepping out every night, she was entitled to do the same.
Why Did She Fight It?
According to the accepted practice of the Senate Divorce Committee no more proof than this was required. It was hard to make out, from the Senate record, why the girl had bothered to contest the divorce at all—it would have been cheaper to let it go through uncontested.
But when the bill came before the House Private Bills Committee some questions were asked that hadn’t been asked before. It turned out that the husband had already got a judicial separation, four years before, on grounds of the same adultery. By Quebec law she was entitled to half the community property at that time.
Under cross-examination the husband reluctantly admitted that his wife took no legal advice at the time of their separation. He himself had told her that her share was half the value of their household furniture, and he’d given her one thousand dollars as full and final payment.
Why hadn’t he included his business in his declaration of community property? Why hadn’t he included his automobile, and various other items? Getting no satisfactory answer to these questions, MPs then asked whether he had ever had the separation agreement made final in court. They found he had not. They decided that his motive in seeking a divorce was to make sure bis wife would never be able to claim her just share of their family possessions.
The House committee also learned that, so far as adultery was concerned, this husband was in no position to
criticize his wife’s behavior. In the end, committee chairman John Hunter, a Liberal MP from Toronto, summed up roughly as follows:
"Gentlemen, we are a sovereign parliament and we can grant or refuse a divorce on any ground or no ground. In this case I suggest that j the petitioner, by his conduct, has disentitled himself to the relief that he is ! asking.” The committee unanimously agreed and the divorce bill which the Senate had passed was thrown out.
In a provincial divorce court all these background facts would have been known at the outset. As a mat! ter of routine, every petitioner must disclose any previous legal proceedings such as a judicial separation. He must also disclose any financial agreement or division of property and any arrangements for care or custody of the children. Adultery is the sole ground for divorce in Canada (except in Nova Scotia where cruelty is also a ground) but divorce courts at least can take the general family situation into account.
Why can’t the Senate Divorce Committee do likewise?
Senators answer that the reason is constitutional. The British North America Act gives the federal government jurisdiction over divorce, but the provinces have authority on "property and civil rights.” Hence, the argument runs, all such questions as alimony and the care of children must be left to provincial courts. The Senate and House of Commons must confine themselves to one question and one only: was adultery committed or was it not?
As a matter of fact the question of parliament’s constitutional authority has never been tested in court. Parliament in one case did include alimony provisions in a divorce act, when it dissolved the marriage of a couple named Campbell away back in 1879. The Campbell divorce was never upset or even challenged. However, some high court judges in the 1880s made unflattering remarks about it and the general opinion seemed to be that alimony was none of parliament’s business. The tradition grew up which is observed to this day, of confining the Senate committee’s enquiry to the sole question of adultery.
Sometimes this makes it easier to get a divorce, as in the cases above-mentioned. Sometimes, and just as unfairly, it makes divorce more difficult. Here’s an example, also from last ! winter’s batch of cases: again the ¡
petitioner was a husband, the respondent an estranged wife to whom he was j paying an allowance. The corespondent was a lodger in the wife’s apartment, but he solemnly swore that he slept on a sofa in the living room and dressed and undressed in the bathroom. The Senate committee disbelieved this tale and recommended a divorce.
The House of Commons committee was not so sure. Perhaps because the petitioner’s chief witnesses were those same discredited detectives who’d been convicted of fabricating evidence, perhaps because of a fear that the wife might be left destitute, the MPs threw out this Senate bill as well.
Actually, the petitioner says he’s quite willing to go on paying the allowance to his first wife and their child. All he wants, he says, is the freedom to marry again and begin a new life of his own. But under existing parliamentary procedure he never got a chance to testify to this effect, and
We’re not allowed to meddle in alimony, senators say. But what’s stopping them?
therefore he didn’t get his divorce.
One thing he can do, though, that he couldn’t do in a court of law—he can come back again next session and seek another divorce bill on the same facts. In court this wouldn’t be allowed because court judgments are final. Parliamentary judgments are not. Already, at least two of the five men whose divorces were blocked in the Commons last session have set things in motion for another try next year.
This gives the petitioner a heavy advantage if he is a rich husband and the respondent a poor wife. Presenting a defense is a costly business. The Senate committee can and often does order the petitioning husband to provide money for his wife’s defense, but the funds thus ordered are seldom enough to pay everything.
In one case which was stalled by the House of Commons in 1954 and renewed by the husband in 1955, the wife wrote last January that she was abandoning her defense. The reason, she said, was that she had no more money.
To its credit the Senate Divorce Committee refused to accept this withdrawal. It reopened the case and ordered seventy-five dollars sent to the wife so she could come to Ottawa and defend herself. Eventually she won out; her husband’s divorce bill was defeated in the House of Commons by a vote of 43 to 36. But when it was all over, Erhärt Regier told parliament, the woman got a bill from her lawyer for eight hundred and fifty dollars.
Courts Tie a Tidy Package
On the other hand parliamentary divorce procedure can be equally unfair and equally exorbitant for the petitioner.
Of the five contested cases last I session that went through the Senate but failed to pass the House, only three were actually voted down either in j committee or in the House itself. The i other two were simply left on the j order paper when parliament prorogued; CGF members, a small minority, had ’’talked them out” in the ! brief hour that parliament reserved for ; private bills on the second-last day of the session. These two petitioners had paid upwards of one thousand dollars apiece for divorce bills which were approved at three of the four stages they had to go through and never actually disapproved at any stage. Yet to have their petitions heard next year they must start at the beginning and : pay all over again.
None of these anomalies exist where divorces are granted by the courts. Courts can give final and definite judgments. Courts can assess costs against the loser, if they think fit.
! Courts can deal with all aspects of ! a divorce at once—dissolution of the marriage, custody of children, division of property—and tie them all up in ! one tidy, inexpensive package.
Ironically, the place where a court’s advantages over the Senate Divorce I Committee are most clearly recognized J is the Senate itself. It was the Senate i that began the long fight to set up divorce courts for Ontario. Until 1930 Ontario citizens as well as Quebeckers had no means of obtaining divorces except by means of private acts of parliament. Senate bills to create Ontario divorce courts were passed three times by large majorities—in 1920, 1927 and 1928—before a similar measure ever got through the House of Commons.
The late Senator Lendrum McMeans, chairman of the Senate Divorce Committee for many years, told the Senate Continued on page 64
in 1928 why its bill was getting nowhere in the House:
"I am told that owing to some arrangement which has been made, the government will not allow it to be discussed.”
He didn’t say what the "arrangement” was but his listeners understood him perfectly—the government was smothering the bill out of deference to Quebec and other Roman Catholic MPs. The man who frustrated this conspiracy of silence was J. S. Woodsworth, founder and patron saint of the CCF, who forced the Ontario Divorce Court Bill through the Commons almost singlehanded. He did it by asking demure but devastating questions about the divorce bills themselves, which came before Commons.
Will the sponsor please explain this bill?” Woodsworth would ask. Or again, "Would the honorable member tell us what arrangements have been made for the children?” or, "What is the basic cause of the trouble in this particular family?”
Of course the unlucky sponsor didn’t know the answers; usually he was the chairman of the House Private Bills Committee, sometimes merely a friend of the lawyer for the petitioner, but in either case putting his name to a bill of which he knew nothing whatever. However, he could hardly say such questions were unreasonable. For three years Woodsworth and his running mate, William Irvine, maintained a blockade in this fashion, until finally the Mackenzie King government threw in the sponge and enacted the Ontario Divorce Court Bill as one of its last acts before the election of 1930.
Some CCFers, fired by Woodsworth’s example, hope to use the same siegewarfare tactics to do for Quebec and Newfoundland what their founder did for Ontario. They are unlikely to succeed. For one thing, the Liberals haven’t forgotten that the 1930 election was the one they lost. For another, a divorce law for Quebec would start such a fight as would make the Ontario debate look tame.
Except for conscription, divorce is the most explosive and divisive question in all Canadian politics. To Roman Catholic Quebec it is anathema, and
any attempt to impose it would undoubtedly be regarded as an act of tyranny on the part of the Protestant majority. To some if not most Newfoundlanders it would be a breach of their terms of Confederation: New-
foundland came in with an agreement that her divorce laws, or rather the lack of them, would be among the Newfoundland institutions to be left intact.
Prime Minister St. Laurent took part in a debate in 1950 on a CCF bill to give Quebec and Newfoundland divorces to the Exchequer Court. He quoted Section 185 of the Quebec Civil Code, which declares that "marriage can only be dissolved by natural death of one of the parties; while both live it is indissoluble.”
“Why Create Controversy?”
Legislation against that Quebec law would be in the power of the federal parliament, the prime minister admitted, but it would be "extremely distasteful to the large majority of people of that province ... It would be strongly resented on religious grounds.
"We have made considerable progress in recent years toward national unity. The matter now being debated is something which would be felt by a large number as imposition of a law which the people of Quebec do not want. Why do it? Simply because it would relieve us here of the painful duty of having to consider individual divorce bills, why create that controversy?”
Baffled CCFers and other advocates of a divorce court often ask, "Why do you object so violently to divorce in a court of law, when you don’t mind divorces going through parliament in job lots every year!”
Here is the answer given to parliament by André Gauthier, Liberal MP for Lake St. John, Que.: "Canada has no general divorce law. None of our lawmakers since 1867 ever deemed it proper to enact a general divorce law. Every petition for divorce submitted to parliament is an exceptional case.”
To these "exceptional cases,” even four hundred at a time, the Quebec MP is willing to turn a blind eye. He
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will not vote for them but he will abstain—that’s why the recorded votes on divorce bills are always so small. A general law, on which a court could act, would be a different matter.
"Never will Quebec accept the principle of divorce,” said Armand Dumas of Villeneuve. "By accepting this bill we would recognize divorce.”
In practice Quebeckers are not always as hostile to divorce as they are in principle. An MP from a rural riding in the heart of down-river Quebec was involved a few years ago in a divorce that set the gossips twittering for months; nevertheless he was reelected with an almost undiminished majority. Ostensibly, Quebec tolerates parliamentary divorce bills merely as a sop to the Protestant minority, but Senator Walter Aseltine kept track for several! years of the petitioners before the Senate committee — twenty - five percent, he found, were Roman Catholics. Not long ago an unexpected snap vote in the House Private Bills Committee defeated a divorce bill from a Canadian petitioner. Next day the chairman reconvened the committee, recalled the bill on a technicality, and took the vote over again with a solid majority of Liberals voting "aye.” The Oppostion heard unofficially that the bill had been recalled at the request of some Quebec MPs—-the petitioner was a friend of theirs.
More Grounds Than Adultery?
But in principle and for the record t hey are unalterably opposed to divorce under any and all circumstances. On any general divorce legislation they vote "no”; on ordinary individual divorce bills they abstain from voting at all, and often walk out of the chamber if any divorce bill is discussed. Quebeckers will not serve on the committees of either house that must deal with divorces. This attitude lias several ironic results. One is to leave parliamentary divorce in the hands of men who have no strong objection to it.
Senator Aseltine, longtime chairman of the divorce committee and still a leading member, last spring introduced a bill to broaden the grounds of divorce by adding cruelty, desertion and incurable insanity to the sole existing ground, adultery. Among those who spoke warmly in favor of the bill was the present divorce committee chairman, Senator Arthur Roebuck.
"By the time these cases come to us, the real marriage is a thing of the past,” Senator Roebuck said. "I have not found a single case in which we could defer action in the hope of reestablishing the true marriage.” And he obviously felt that when the "true marriage” has broken down, the legal bond had best be dissolved.
Senator George H. Ross, who often serves as chairman of subcommittees on divorce, said in the same debate:
"I’d like to see divorce actions transferred from parliament to the courts. I wonder if we could do this by making domicile Canada-wide instead of province-wide. Then people who live in Quebec and Newfoundland could get divorces in the courts of other provinces.”
This suggestion was new to CCFers. Some of them are looking into it now to see if it’s an improvement on their proposal to give divorce authority to the Exchequer Court.
the Senate and the CCF, may do, the odds are against any fundamental change in the Canadian divorce system. It’s bad medicine politically and the major parties won’t touch it. Realists talk less about creating a new divorce system than about improving the one we’ve got.
There is no serious criticism of the Senate’s procedure in uncontested cases. Many are prepared by collusion, often with fabricated evidence, but although this may be suspected it is almost impossible to prove. The Senate committee is no more lax than any other divorce court in letting these go by. Criticism is focused entirely on the handful of cases seventeen last year out of four hundred and fourteen petitions—in which the respondent opposes the divorce and presents evidence which contradicts that of the petitioner.
One point often made is that the Senate committee is too lenient with liars.
When Erhärt Regier got up in the Commons to report withdrawal of the case that had depended on the two "detectives” and their roommate, he asked whose responsibility it was to prosecute such men for perjury. The Minister of Justice, Hon. Stuart Garson, answered cautiously that the actual prosecution would be a matter for the attorney-general of Ontario, but he thought "some responsible official” of the Senate committee might draw the matter to the attorney-general’s attention.
So far as is known, no Senate official has ever done this. There was one case in 1928 when a man was convicted and sentenced to two years for perjury before the Senate committee, but the charge was laid by a slandered wife against the man who had borne false witness. The Senate itself takes no action against witnesses whom it disbelieves, even when strong evidence of perjury is available.
Another frequent complaint is that of the high cost of Senate divorces. Much of this is outside the Senate’s control, but not all—some at least of the financial burdens are imposed by the Senate committee’s own rules which could be altered at will.
This is equally true about another cause of criticism, the gravest and most just of all—the Senate committee’s failure to take any cognizance whatever of the general family situation, the alimony arrangements if any, the care and custody of the children.
Even if senators are right in thinking these to be provincial responsibilities j under the "property and civil rights” clause, the Parliament of Canada is sovereign and can act for its own reasons. Nothing prevents the Senate committee from demanding of every petitioner a full statement with documentary proof that these matters have been attended to. Whether or not the federal parliament has the right to impose these arrangements as part of a divorce hill, it certainly has the right to refuse a divorce until it is satisfied the arrangements have been made.
All these points could be met by the Senate committee without passing a single law, simply by making changes in its practice. If it made those changes it would deprive its CCF critics of every major indictment they have been able to make since their campaign began.
But unless and until it does make changes, the senators may as well resign themselves to an annual ordeal of ridicule. ★