Condonation as a Bar to Divorce in Canada
Ronda Bessner*
I. Introduction
The Divorce Act’ has failed to resolve the controversies regarding
the interpretation and application of condonation as a bar to
divorce. Section 9(1) (c) provides:
On a petition for divorce it is the duty of the court…
(c) where a decree is sought under section 3, to satisfy itself that there
has been no condonation or connivance on the part of the petitioner,
and to dismiss the petition if the petitioner has condoned or con-
nived at the act or conduct complained of unless, in the opinion of
the court, the public interest would be better served by granting
the decree [.]
According to section 9(1)(c), condonation is only relevant to peti-
tions of divorce based on grounds enumerated in section 3. These
include adultery,2 sodomy, bestiality, rape and homosexual acts,
bigamy,4 and physical or mental cruelty of such a kind as to render
intolerable the continued cohabitation of the spouses. 5 Thus, con-
donation as a bar to divorce only pertains to matrimonial offences
which are fault-based. It is not relevant to petitions under section
4, which are concerned with the permanent breakdown of marriage.”
The intention of this paper is to examine the various definitions
of condonation developed by the courts both before and since the
enactment of the Divorce Act, and to outline the current approach
to its meaning. In addition, the criteria established by the courts to
determine when it is in the public interest to grant a divorce not-
withstanding condonation will be discussed. The interpretation given
to section 9(2) will be reviewed, as well as the relationship be-
tween the section and article 197 of the Quebec Civil Code (the
equivalent provision -for legal separation).
* B.C.L. III, Faculty of Law, McGill University.
1S.C. 1967-68, c. 24; now R.S.C. 1970, c. D-8.
2Ibid., s. 3(a).
3Ibid., s. 3(b).
41bid., s. 3(c).
5Ibid., s. 3(d).
OBuglass, Canadian and Australian Bars to Divorce (1969) 34 Sask. L. Rev.
87, 93.
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CONDONATION AS A BAR TO DIVORCE IN CANADA
65
II. The definition of condonation
Although section 9(1)(c) stipulates that condonation of a section
3 matrimonial offence is a bar to divorce, the Divorce Act does
not provide a definition of “condonation”. According to the recent
cases of Blue v. Blue’ and Nielsen v. Nielsen,” condonation has re-
tained the meaning given to it by the courts prior to the enactment
of the Divorce Act. The courts of Canada have maintained the inter-
pretation of condonation enunciated by Lord Chelmsford in Keats
v. Keats & Montezuma: condonation is a “blotting out of the
offence imputed, so as to restore the offending party to the same
position he or she occupied before the offence was committed’. 9
The test, in this view of condonation, is whether forgiveness exists
to the extent that reconciliation between the spouses takes place.
As Lord Chelmsford stated, “the forgiveness which is to take away
the [husband’s] right to a divorce must not fall short of recon-
ciliation”. 0 Eighty-nine years later, in Mackrell v. Mackrell,” -D en-
ning L.J. (as he then was) elaborated upon the test developed by
Lord Chelmsford. The Mackrell case involved the alleged condona-
tion by a spouse of cruel acts committed by her husband. Denning
L.J. agreed with Lord Chelmsford’s statement that “reconciliation
being the test of condonation nothing short of it will suffice”.’
Denning L.J., however, provided a definition of reconciliation. Re-
conciliation, he stated, “does not take place unless and until mutual
trust and confidence are restored”.’3 In contrast, to Ke~l1y J. in
Allin v. Allin,’4 who stated that condonation does not exist until the
wronged spouse completely restores the offending spouse to the
position he or she had in their relationship prior to the commit-
ment of the matrimonial offence, Denning L.J. stated:
It is not to be expected that the parties can ever recapture the mutual
devotion which existed when they were first married, but their relation-
ship must be restored, by mutual consent, to a settled rhythm in which
the past offences, if not forgotten, at least no longer rankle and embitter
their daily lives. Then, and not till then, are the offences condoned.15
7Blue v. Blue (1970) 17 D.L.R. (3d) 226, 228 (Sask. Q.B.).
8 Nielsen v. Nielsen (1970) 15 D.L.R. (3d) 423, 427 (Ont. H.C.).
9 Keats v. Keats & Montezuma (1859) 1 Sw. & Tr. 334, 346, 164 E.R. 754,
759 (Divorce Ct).
10 Ibid., 765.
‘lMackrell v. Mackrell [1948] 2 All E.R. 858 (C.A.).
12 Ibid., 861.
18 Ibid., 860.
14 Allin v. Allin [1942] O.W.N. 444, 445 (H.C.).
15 Supra, note 11, 860.
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Denning L.J. also stated that mere attempts at reconciliation do
not amount to condonation; it is reconciliation itself which consti-
tutes condonation. 16 This proposition is supported in Strachan v.
Strachan.17 In this case, the petitioner sought to achieve a recon-
ciliation, which ultimately failed. Ruttan J. held that attempts on the
part of the spouse to effect a reconciliation did not constitute con-
donation of the adulterous acts of her husband. 8 A decree nisi
was granted by the British Columbia Supreme Court.19
The interpretation given to condonation by the English courts
has been adopted in several Canadian cases decided since the
promulgation of the Divorce Act.20 The Keats and Mackrell defini-
tion of condonation emphasizes two elements: forgiveness on the
part of the innocent spouse and reinstatement of the erring spouse
to the position he or she had occupied prior to committing the
matrimonial offence. Knowledge on the part of the innocent spouse
of the offence engaged in by the guilty spouse, however, is not
stressed to the extent that it is in Herbert V. Herbert,2 1 Inglis v. Inglis
& Baxter 2 and Blue v. Blue.2 3 Willmer L.J. and Harman L.J. stated
in Inglis that it is fundamental to the existence of condonation that
the wronged spouse know all the material facts of the offence.
Moreover, it is the duty of the spouse seeking forgiveness to reveal
all the material facts of the offence which he or she committed 24
Material fact is defined as any fact:
which would reasonably have had a substantial weight with the [husband]
in determining whether, on the one hand, to exercise his right to re-
pudiate [his wife] for the wrong which she had done him or, on the
other, to remit his right to do so.25
Therefore, according to the Inglis case, the guilty spouse who does
not disclose all the material facts cannot plead condonation as a bar
to divorce. The exception to this rule is an implicit or express
16 Ibid., 861.
“7Strachan v. Strachan (1969) 72 W.W.R. 383 (B.C.S.C.).
18 Ibid., 387.
10 Note that according to the Law Reform Commission of Canada, an
intention to be reconciled is sufficient for condonation. See Law Reform
Commission of Canada, Divorce (Working Paper 13)
2 0 See, e.g., Crosby v. Crosby (1971) 6 R.F.L. 8, 9 (Ont. H.C.); Nielsen v.
Nielsen, supra, note 8, 427; Aucoin v. Aucoin (1977) 28 R.F.L. 43, 46-47 (N.S.S.C.,
App. Div.); Pellegrini v. Pellegrini (1976) 30 R.F.L. 293, 295 (Ont. H.C.).
(1975), 15.
21 Herbert v. Herbert [1936] O.R. 432 (C.A.).
2 2 Inglis v. Inglis & Baxter [1967] 2 All E.R. 71 (C.A.).
23Supra, note 7, 228.
24 Supra, note 22, 80-81.
25 Ibid., 80.
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CONDONATION AS A BAR TO DIVORCE IN CANADA
67
waiver by the innocent spouse of the requirement of further know-
ledge from his or her spouse.26
The Ontario case of Herbert v. Herbert27 also emphasized that
knowledge of the circumstances is required before condonation
can exist. Fischer S.A. stated that suspicion that a matrimonial
offence was committed is not sufficient; the wronged spouse must
have substantial knowledge of the facts before he or she oan be
found to have condoned the offence.2 The importance of the element
of full knowledge is also apparent from the definition of condona-
tion given in Blue v. Blue:
Condonation of a matrimonial offence means the forgiveness of the
offence, having been made fully aware of all the circumstances, followed
by a restoration of the offending party to his former position on the
understanding expressed or implied that no further matrimonial offence
will be committed.2 9
The most comprehensive treatment of the concept of condona-
tion by the Canadian courts is in Leaderhouse v. Leaderhouse,3 0
wherein Disbery J. enumerated the three essential components of
condonation: knowledge by the innocent spouse of the matrimonial
offence; the intention of the innocent spouse to forgive and remit
the offence; and reinstatement to his or her marital position of the
guilty spouse by the innocent spouse 31 He then stated that, in law,
forgiveness has occurred when “the legal remedy for the wrong is
waived by the injured spouse”, and concurred with Lord Chelms-
ford in Keats that forgiveness must be accompanied by reconcilia-
tion for condonation to exist.2 With respect to the element of
reinstatement, Disbery J. stated that unless the guilty spouse desires
to be restored to his or her former matrimonial position, there can
be no reinstatement and thus no condonation:
An innocent spouse who desires to condone the offence which has been
committed by the guilty spouse and thus resume their married life
together cannot bring such to pass unless the guilty spouse is willing
that such be done.33
26 Ibid., 81.
27 Supra, note 21.
28 Ibid., 437.
29 Supra, note 7, 228.
30 Leaderhouse v. Leaderhouse (1970) 17 D.L.R. (3d) 315 (Sask. Q.B.).
31 Ibid., 320.
32 Ibid.
33 Ibid., 321. The criteria established by Leaderhouse to determine whether
a s. 3 offence has been condoned were adopted in Grandy v. Grandy (1972)
26 D.L.R. (3d) 359, 361 (N.S.S.C., App. Div.); and Sergeant v. Sergeant (1972)
33 D.L.R. (3d) 734 (N.S.S.C., T.D.); and approved by Davies, Power on
Divorce and other Matrimonial Causes 3d ed. (1976), vol. 1, 120.
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Whether condonation is a unilateral act of the wronged spouse
or a bilateral act on the part of both spouses remains a subject of
controversy. According to Keats, Mackrell and the Canadian deci-
sions which adopt their interpretation, reconcilation is the test of
condonation. Denning L.J. has defined reconciliation in terms of
mutual trust and confidence which implies that condonation is a
bilateral act. The statement of Wright J. in Douglas v. Douglas &
Miller also supports the view that condonation involves acts on the
part of both spouses: “…. whatever the acts of the innocent spouse,
condonation cannot be found if the erring spouse does not want
to be reconciled”. 34
It was held in Douglas that because the husband continued
to engage in adulterous acts, the desire to resume marital re-
lations was not mutual. The decree nisi was granted in favour of
the wife. In addition, Disbery J. stated in Leaderhouse that rein-
statement (which is a necessary element of condonation) cannot be
achieved unless the guilty spouse expresses a desire for it.35 Davies
is also of the opinion that condonation is not solely dependent on
the acts and conduct of the innocent spouse. 6
On the other hand, Quebec authors Pineau7 and Deleury and
Rivet 38 are of the opinion that condonation is a unilateral act on
the part of the innocent spouse. Pineau distinguishes between for-
giveness and reconciliation:
… le pardon est une d6cision unilatdrale, diff6rente thdoriquement de la
reconciliation qui suppose une volont6 commune. 39
The French version of section 9(1) (c) of the Divorce Act translates.
condonation as “le pardon”. Pardon can be translated as “for-
giveness”. “Forgiveness” denotes a one-sided act –
only one of
the parties need cease to feel resentment for -forgiveness to occur. If
forgiveness without reconciliation is sufficient to constitute con-
donation, Pineau is correct in his statement that condonation is a
unilateral act on the part of the wronged spouse. However, the
majority of cases state that reconciliation is a necessary element of
condonation, thus underlining its bilateral nature.
34 Douglas v. Douglas & Miller [1977] 1 W.W.R. 95, 96 (Man. Q.B.).
35 Supra, note 30, 321.
36 Davies, supra, note 33, 123.
37 Pineau, Mariage separation divorce (1976), 145.
3 8 Deleury & Rivet, Droit Civil: Droit Des Personnes Et De La Famille
(1973), 214.
39 Pineau, supra, note 37, 145.
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CONDONATION AS A BAR TO DIVORCE IN CANADA
69
III. Sexual intercourse and condonation
Another difficulty not contemplated by the Divorce Act is the
relationship between sexual intercourse and condonation.0 If the
innocent spouse engages in sexual intercourse with the guilty spouse
after full knowledge of the matrimonial offence committed under
section 3, is this conduci tantamount to condonation?
According to Keats v. Keats & Montezuma, the single act of
intercourse of a husband with his guilty wife is conclusive evidence
that he condoned her misconduct?4 Viscount Simon L.C. in Hender-
son v. Henderson & Crellin states the one exception to this rule:
… if the intercourse was induced by a fraudulent mis-statement of fact
by the wife, that circumstance will prevent the husband’s actions from
having the effect of condonation… .42
The principle enunciated in Keats does not apply to a woman.
According to Keats, Henderson and Mackrell,4″ sexual intercourse of
the wife with her guilty husband does not necessarily imply that
she condoned his acts. The basis for the distinction between the
sexes ,is that a “husband would not take a delinquent wife to bed
unless he had forgiven her”.” It is believed that although a man
generally has the finanoial capacity to move out of the matrimonial
home, a woman often has no alternative but to reside with her
guilty spouse and to “submit to intercourse out of necessity”.45 In
addition, it was stated that the consequences of the act of inter-
course are potentially more serious for the woman in that she
could become pregnant.” Lord Chelmsford summarized the position
of the courts:
The wife is hardly her own mistress; she may not have the option of
going away; she may have no place to go to; no person to receive her;
no funds to support her; and therefore her submission to the embraces
of her husband is not considered by any means such strong proof of
condonation as the act of the husband in renewing his intercourse with
his wife. 7
Whether the rule established by the English courts is applicable
in Canada has been questioned in such cases as Anema v. Anema &
40 Buglass, supra, note 6, 98.
41 Supra, note 9, 760.
42Henderson v. Henderson & Crellin [1944] A.C. 49, 52 (H.L.).
43 Supra, note 11.
44 Supra, note 30, 321.
45 Beeby v. Beeby (1799) 1 Hagg. Ecc. 789, 162 E.R. 755, cited in Leaderhouse,
supra, note 30, 322.
4″)Davies, supra, note 33, 123.
47 Supra, note 9, 760.
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FosS48 and Saunders v. Saunders.49 According to Payne, the Canadian
courts have not maintained the distinction between the sexes.60
Payne argues that the courts in Canada do not invariably conclude
that a husband’s participation in sexual intercourse with his wife
constitutes condonation:
in the light of the extending social and economic emancipation of
the woman in modern society, however, there seems little justification
for maintaining a distinction in application of the rules of condonation
according to the sex of the petitioner …. 51
Davies agrees that “however justified this distinction between the
sexes may have been in the nineteenth century, it is anomalous
today” 2 –
Some writers suggest, however, that sexual intercourse, while not
conclusive in itself, has a special importance as regards condona-
tion.5r3 It is argued that when an act of sexual intercourse takes
place, a strong presumption is created that the innocent spouse
intended to condone the acts of his or her spouse. This pre-
sumption will not be easily rebutted.M Blue v. Bluer5 is a case which
reflects this view. In its decision, the Court placed special emphasis
upon the act of intercourse. Johnson J. held that due to the peti-
tioner’s conduct in allowing her husband to enter the premises and
to engage in sexual intercourse, she had condoned his cruel be-
haviour.50
Other cases have adopted Davies’ interpretation of the relation-
ship between sexual intercourse and condonation. Basing her reason-
ing on Leaderhouse v. Leaderhouse, she states that no presumption,
rebuttable or irrebuttable, can be inferred from sexual intercourse;
it is merely one element of evidence which must be treated equally
with others.5 7 For example, the issue in Nielsen v. Nielsen8 was
whether the five or six acts of intercourse between the spouses
amounted to condonation. It was held that due to the absence of
48 Anema v. Anema & Foss (1976) 27 R.F.L. 156, 157 (Man. Q.B.).
49 Saunders Y. Saunders (1976) 22 R.F.L. 210, 213 (Man. Q.B.).
50 Payne, The Concept of Condonation in Matrimonial Causes: A Restate-
ment of Henderson v. Henderson and Crellin (1961) 26 Sask. Bar Rev. 53, 56.
51 Ibid., 58.
52 Davies, supra, note 33, 124.
53See Payne, supra, note 50, 57, and Chapman, Everything You Should Know
About Law and Marriage (1971), 67.
54Payne, supra, note 50, 57.
53Supra, note 7.
56 Ibid., 228.
57 Davies, supra, note 33, 124.
5SSupra, note 8.
1979]
CONDONATION AS A BAR TO DIVORCE IN CANADA
71
reconciliation between the spouses, Mrs Nielsen could not be found
to have condoned her husband’s act of adultery. Galligan J. stated
that sexual intercourse is only one piece of evidence from which
a court can infer condonation 39 Similarly, Disbery J. in Leader-
house -held that the cruel acts of the respondent were not condoned
by the petitioner despite the fact that the parties had had sexual
intercourseP0 Furthermore, an innocent spouse may engage in inter-
course without any intention of either forgiveness of past offences
or reinstatement of the guilty spouse.’ According to Disbery J.,
sexual intercourse may be nothing more than the satisfaction of a
biological urge. 2
Is sexual intercourse necessary to establish condonation? Ac-
cording to Tingey v. Tingey, condonation can exist in the absence of
sexual relations between the parties0 The requirements of con-
donation are forgiveness and the resumption of the previous marital
relationship (reinstatement) – which relationship may not have
been characterized by acts of intercourse. As Grant J. stated, “It is
not necessary that the offending spouse’s position in the affection
of, the other spouse be elevated beyond what it previously was”. 4
He held that although the petitioner -did not have intercourse with
her husband subsequent to his adulterous acts, she had nevertheless
condoned his offence. Because she had not had sexual intercourse
with him for many years prior to his adultery, but continued to
sleep in the same room and perform domestic duties after know-
ledge of his acts, she satisfied the requirements of section 9(1)(c).
The petition was dismissed.
IV. Cohabitation.and condonation
The Divorce Act provides that under certain circumstances,
cohabitation will not amount to condonation:
“condonation” does not include
the continuation or resumption of
cohabitation during any single period of not more than ninety days,
59 Ibid., 429.
6o Supra, note 30, 323.
101 Ibid.
6Ibid.
6 Tingey v. Tingey (1970) 12 D.L.R. (3d) 559, 564 (Ont. H.C.). See also
Grandy, supra, note 33, 363; Strachan, supra, note 17, 386; Croft v. Croft
(N.S.S.C., T.D.); Trites v. Trites (1969) 9
(1969)
D.L.R. (3d) 246 (N.S.S.C., T.D.); and Aucoin, supra, note 20, 46 for support
for the proposition that, failing forgiveness on the part of the innocent spouse,
subsequent intercourse is not sufficient to result in a finding of condonation.
10 D.L.R. (3d) 267, 269
04Ibid., 564.
McGILL LAW JOURNAL
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where such cohabitation is continued or. resumed with reconciliation as
its primary purpose [.165
Gould J. in Einarson v. Einarson stated that section 2 is not to be
viewed as a definition of condonation; section 2 cannot be inter-
preted to mean that any cohabitation in excess of ninety days
constitutes condonation. 6
A problem which remains unresolved with respect to section 2
is the meaning of “any single period of not more than ninety days”.
According to Cherniski v. Cherniski 7 and Mendes da Costa, 8 the
section applies to those situations in which there are several periods
of cohabitation, provided that each period is less than ninety days
and reconciliation is the primary purpose of the cohabitation. How-
ever, Armstrong v. Armstrong,”‘ Goodland v. GoodlandT” and Davies7’
state that section 2 is applicable only to one period of cohabitation,
and does not aid the spouse who attempts for a second time to
effect a reconciliation, even though the spodses in each period have
not lived together for more than ninety days.
If the petitioner does not come within section 2, to what extent
should the courts view cohabitation as evidence of condonation? In
Ifield v. Ifield72 a wife petitioned for divorce on the. ground of
physical cruelty under section 3(d) of the Divorce Act. Disbery J.
held that by continuing to cohabit with her spouse, she had condoned
the cruel acts of her husbandY3 Saxton v. Saxton74 involved a peti-
tion for divorce by the husband on the grounds of mental cruelty.
Verchere J. stated that in continuing to live with his wife, the
husband had condoned the behaviour of which he complained. The
fact that the conduct of his spouse made him physically and
mentally ill did not have any influence on the existence of condona-
tion.7 5
The Aucoin case 7 held that mere cohabitation does not establish
condonation, and cohabitation is not to be accorded more eviden-
6 Divorce Act, s. 2.
06Einarson v. Einarson (1971) 20 D.L.R. (3d) 126, 128 (B.C.S.C.).
67 Cherniski v. Cherniski (1970) 16 D.L.R. (3d) 606 (Man. Q.B.).
18 Mendes da Costa, “Divorce” in Mendes da Costa (ed.), Studies in Canadian
Family Law (1972), vol. I, 359, 393.
69 Armstrong v. Armstrong (1971) 21 D.L.R. (3d) 140 (Ont. H.C.).
‘ 0 Goodland v. Goodland (1974) 3 O.R. (2d) 464 (H.C.).
71 Davies, supra, note 33, 130.
7 2Ifield v. Ifield (1975) 24 R.F.L. 237 (Sask. Q.B.).
73 Ibid., 245.
74 Saxton v. Saxton (1974) 12 R.F.L. 135 (B.C.S.C.).
75 Ibid., 157.
76 Supra, note 20, 46.
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CONDONATION AS A BAR TO DIVORCE IN CANADA
73
tiary weight than are other factors. MacKeigan C.J.N.S. referred
to the statement of Bucknill L.J. in Mackrell v. Mackrell that forgive-
ness cannot be invariably inferred from the fact that the spouses
are living in the same houseY7 Denning L.J. in the same decision
stated:
The fact that the parties continue to live in the same house or the fact
that the guilty party is reinstated in his or her former position is,
indeed, evidence from which reconciliation may be inferred, but it is
by no means conclusive. The longer the parties continue to live together
and the closer their relationship, the stronger, of course, is the evidence
of reconciliation; but cases often arise where the parties continue to
live in the same house by” force of circumstances.Y8
In Einarson v. Einarson, the petitioning wife resumed and continued
cohabitation for over a year after the occurrence of the marital
offence. The Court held that since reconciliation was not effected
between the spouses, condonation did not exist. A decree absolute
was granted in favour of the wife, notwithstanding cohabitation.”
Strachan v. Strachan is illustrative of a situation in which eco-
nomic considerations were the main reasons for the cohabitation of
the spouses. Although the petitioner resided with her husband in
full knowledge of his adulterous acts, the parties maintained sepa-
rate existences. They never went out together on social occasions,
they did not engage in sexual relations, -and they rarely communi-
cated. The petitioner cooked her husband’s meals and laundered his
clothes. Due to their financial situation, neither spouse could afford
to move out of the matrimonial home. Ruttan J. held that the
wife’s continued presence in the home and her performance of
domestic duties did not constitute condonation of the adultery.8’
A number of cases distinguish between situations in which a
husband resumes cohabitation and those in which a wife does so.82
It is argued that a man is often more economically secure and has
a choice with respect to living in the matrimonial home. A woman
may only accjuire the necessary funds with which to find alternative
accommodation upon obtaining judgment against her husband.
In Khader v. Khader, a decree nisi was granted in favour of the
77Supra, note 11, 860.
78 Ibid., 861. Tingey v. Tingey, supra, note 63, 561, and Crosby v. Crosby, supra,
note 20, 9, also support the view that living under the same roof does not
necessarily imply that a meaningful relationship exists between the spouses.
1, Supra, note 66.
s Supra, note 17.
81 Ibid., 387.
S2Mackrell, supra, note 11, 860; Khader v. Khader (1975) 20 R.F.L. 365 (Ont.
CA.); and Francescutti v. Francescutti (1976) 24 R.F.L. 378 (B.C.S.C.).
McGILL LAW JOURNAL
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wife, despite the fact that she returned to the matrimonial home
following a physical assault.8 3 The wife had no friend or relative with
whom she could live, nor did she have sufficient finances with
which to rent living premises. Francescutti v. Francescutti also
supports the view that the act of a woman in continuing to reside
in the matrimonial home does not necessarily constitute condona-
tion.84 The petitioner was financially dependent on her husband,
had no working experience and had three small children to care
for, one of whom was disabled.
Is cohabitation necessary to a finding of condonation by the
courts? According to Chapman 4 and the Law Reform Commission
of Canada,86 resumption or continuation of cohabitation is a neces-
sary element of condonation. However, McLellan Co. Ct 3. in
Trites v. Trites17 as well as Deleury and Rivet88 are of the opposite
opinion. Several recent Canadian cases support the view expressed
by Deleury and Rivet that condonation does not depend on any one
particular fact but is based upon the circumstances of each case.
Neither cohabitation9 nor sexual intercourseP0
is a necessary in-
gredient of condonation. As suggested by Deleury and Rivet, no
single factor –
such as the delay between the knowledge of the
offence and the bringing of an -action in -divorce, the length of time
in which the innocent spouse continues to live with the guilty
spouse, and the resumption or continuation of sexual relations –
is conclusive in determining the existence of condonationY1
V. The public interest
Section 9(1)(c) of the Divorce Act provides that a decree nisi
may be granted notwithstanding condonation if “in the opinion of
the court, the public interest would be better served by granting the
decree”.
Much controversy surrounds the issue of whether condonation
is a discretionary bar to divorce. Payne,92 Buglass9 3 and much of the
83 Supra, note 82, 366.
84 Supra, note 82, 388.
85Supra, note 53, 67.
SSupra, note 19, 15.
87 Supra, note 63, 262.
8 8Deleury & Rivet, supra, note 38, 214.
89 Trites v. Trites, supra, note 63, 262.
90 Tingey v. Tingey, supra, note 63, 563.
91 Deleury & Rivet, supra, note 38, 214.
9 2 Payne, Bill C-187 (1968) 18 U.N.B.LJ. 85, 87.
93 Supra, note 6, 85.
19793
CONDONATION AS A BAR TO DIVORCE IN CANADA
75
jurisprudence suggest that it is within the discretion of the court
to grant a decree if it deems it to be in the public interest. On the
other hand, it has been argued by Mendes da CostaP and Disbery J.
in Ifield v. Ifield0 0 that section 9(1) (c) does not authorize the judge
to exercise discretion; should the court decide that it is in the public
interest to grant the decree despite condonation, it is its duty to
grant it.
Regardless of the interpretation to be given to section 9(1)(c),
the court must first decide whether the public interest is being
served by granting the decree. Public interest is not, however,
defined in the Divorce Act. Some Canadian courts?6 have adopted
the tests established by the House of Lords in Blunt v. Blunt.
Viscount Simon L.C. stated that the following conditions ought to
be examined:
1)
2)
3)
4)
5)
the position and interest of any children of the marriage;
the interest of the party with whom the petitioner [sic] has been guilty
of misconduct, with special regard to the prospect of their future
marriage;
the question whether, if the marriage is not dissolved, there is a
prospect of reconciliation between husband and wife;
the interest of the petitioner, and, in particular, the interest that the
petitioner should be able to remarry and live respectably;
… of primary importance, namely, the interest of the community
at large, to be judged by maintaining a true balance between respect
for the binding sanctity of marriage and the social considerations
which make it contrary to public policy to insist on the maintenance
of a union which has utterly broken down.9 8
A -factor considered by the Canadian courts to be important, if
not decisive, in determining whether it is in the public interest to
grant the decree, is the breakdown of the marriage 9 MoLellan Co.
Ct J. in Trites v. Trites stated:
… the pendulum of public opinion has swung far in the direction of
recognizing the futility of continuing the bonds of matrimony in cases
where the marriage has utterly broken down. 00
D Mendes da Costa, supra, note 68, 386.
95 Supra, note 72, 247.
96 See, e.g., Miller v. Miller (1971) 1 R.F.L. 314, 320 (N.S.S.C., T.D.); Saxton,
supra, note 74, 158-59; and B. v. Dame D. [1971] C.S. 413, 417.
97″Blunt v. Blunt [1943] A.C. 517 (H.L.).
98 Ibid., 525.
99 Raney v..Raney (1973) 13 R.F.L. 156, 160 (Ont. H.C.), and Crosby, supra,
note 20, 10 held that in view of the failure of the marriage, it was in the
public interest to grant the decree.
‘o Supra, note 63, 263.
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Similarly, Morse S. held in Saunders v. Saunders that:
to perpetuate this marriage, in my opinion would be to perpetuate a
farce, a marriage which does not exist except in name and has no hope
of survival.’ 0 ‘
In addition, Robertson J.A. in Allan v. Allan’02 and Osler S. in
Mark v. Mark0 3 maintained that public interest requires an end to
a marriage which has been characterized by unhappiness and which
does not benefit anyone.
Another factor which is accorded considerable weight by the
courts is the interest of the children. Several cases have held that
it is in the public interest to grant the decree in order to stabilize
the lives of the children of the marriage. 0 4
Disbery J. in Ifield v. Ifield stated that it is essential that the
courts distinguish between the public interest – which is the in-
terest of the community –
and the private interest. The benefit
which might be derived by a petitioner from the granting of the
decree ought not to be considered. He maintained that preconditions
to the applicability of section 9(1)(c) are that an interest in the
community at large be involved and that the public Interest be
better served by the decree. 1 5 Similarly, in Blue v. Blue (one of
the few cases where the decree was refused), it was stated that the
public interest and private interests must be clearly delineated and
that the desire of the parties to remarry does not meet the require-
ment of public interest in section 9(1) (c).”16
Another yet unresolved problem is whether the public interest
is to, be narrowly or widely construed by the courts. According to
Harasyn v. Haras~n, a narrow interpretation would have the effect
of discouraging spouses from attempting to save their marriages:
To refuse the decree because the petitioner for a long period before final
separation from her husband desperately sought to maintain the marriage
by repeatedly condoning acts of cruelty on the part of her husband
would tend to indicate disapproval of such attempts on the part of a
spouse to maintain the marriage, and could tend to discourage such
attempts at reconciliation. 0 7
10 1 Supra, note 49, 213.
102Allan v. Allan (1971) 7 R.F.L. 96, 98 (B.C.C.A.).
103Mark v. Mark (1973) 15 R.F.L. 73, 86 (Ont. H.C.).
‘o See Francescutti, supra, note 82, 389; Getson v. Getson (1970) 12 D.L.R.
(3d) 525, 532 (N.S.S.C., T.D.); and Raney, supra, note 99, 160.
’10 Supra, note 72, 247.
‘O Supra, note 7, 229. Thus, some of Viscount Simon’s criteria were
rejected by Johnson J. of the Saskatchewan Queen’s Bench.
07 Harasyn v. Harasyn (1970) 13 D.L.R. (3d) 635, 637 (Sask. Q.B.).
1
1979]
CONDONATION AS A BAR TO DIVORCE IN CANADA
77
However, it is argued by Mendes da Costa 08 and Buglass0 9 that a
liberal interpretation of public interest would render the concept of
condonation meaningless. If decrees were readily granted by the
courts, the effectiveness of condonation as a bar to divorce would
be reduced. In view of section 4(1) (e) (i), which provides that after
a separation period of three years the spouse can obtain a divorce,
the courts should not be reluctant to dismiss petitions. Sergeant
v. Sergeant is illustrative of a narrow interpretation of “public
interest”. The spouses lived separately and there was no evidence
of attempts at cohabitation. Cowan C.J.T.D. held that the fact that
there was no possibility of reconciliation was irrelevant. The couirt
was not satisfied that the public interest would be better served
by granting the divorce and the petition was dismissed.110
VI. Doctrine of revival
According to section 9(2) of the Divorce Act, once a matrimonial
offence under section 3 is condoned, it cannot be revived by the
subsequent misbehavior of the guilty spouse so as to constitute a
ground for divorce. The section reads:
Any act or conduct that has been condoned is not capable of being
revived so as to constitute a ground for divorce described in section 3.
Prior to the enactment of the Divorce Act, the doctrine of revival,
enunciated in 1730, rendered condonation conditional.”‘ If a spouse
whose wrong had been condoned committed a further matrimonial
offence, the innocent spouse was entitled to petition not only on the
later uncondoned matrimonial offence, but also on the basis of the
earlier condoned offences. Therefore, condonation was conditional
upon the spouse not committing a further matrimonial offence.
If such a further offence were committed, this would have the effect
of “reviving” the earlier condoned offence. Thus, condonation was
not viewed as being final or absolute by the courts. 12
The Parliament of Canada abolished the doctrine of revival and
made condonation absolute by virtue of section 9(2). The wronged
spouse can no longer plead as a ground for divorce conduct which
she or he condoned. Had the doctrine been included in the Divorce
08 Mendes da Costa, supra, note 68, 386.
109 Buglass, supra, note 6, 95.
110 Sergeant, supra, note 33, 738.
M Worsley v. Worsley (1730) 2 Lee 572, 161 E.R. 444.
112 Davies, supra, note 33, 125. See also Mendes da Costa, supra, note 68,
390; Ifield, supra, note 72, 245-46, and Leaderhouse, supra, note 30, 319.
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Act, a matrimonial offence in section 3, which had been condoned,
could be revived by a subsequent offence of lesser gravity. The
effect, then, is that unless an uncondoned act exists, a divorce can-
not be granted. 1 3
Some courts have not adhered to a strict interpretation of section
9(2). It has been suggested that although condoned acts are pro-
hibited from being revived, they may nonetheless serve as back-
ground against which the uncondoned acts may be assessed.” 4 One
writer”5 has stated:
… i sera possible, dans le cas de r6cidive, de faire allusion a la faute
passde pour illustrer la situation globale a laquelle le couple fait face.
La nouvelle faute sera le fondement de raction en divorce alors que
la faute pardonnde deviendra un 61ment de la preuve gdndrale.” 0
This argument is used particularly in cases where the petition is
based on cruelty. Cruelty is of a different nature from the other
grounds of divorce enumerated in section 3 –
adultery, sodomy,
bestiality, rape, homosexual acts and bigamy. While these grounds
relate to the performance of a specific act, cruelty involves a
course of conduct. It is argued, therefore, that the courts must
examine conduct prior to condonation in order to characterize
conduct which occurs after condonation as cruelty. As decided in
Lyons v. Lyons:
… the true character of, perhaps, slight acts of cruelty only emerges
when it is considered in the light of conduct which occurred prior to
the condonation.” 7
Stark J. expressed a similar view in Javorski v. Jaworski:
If regard may be had to the long history of cruel acts in the past, even
though condoned by a subsequent reconciliation, then a single serious
incident occurring after the condonation bears an increased
impor-
tance [.i1s
Thus, acts which in themselves do not amount to cruelty under
section 3(d) may assume that character when viewed in the light
of previously condoned acts of cruelty.
A comparison of section 9(2) with the equivalent provision in
the Quebec Civil Code on legal separation discloses that the Jawor-
(N.S.S.C., T.D.);
Croft, supra, note 63, 271; Raney, supra, note 99, 157, and Jaworski v. Jaworski
(1973) 34 D.L.R. (3d) 44 (Ont. H.C.).
(1970) 1 R.F.L. 328, 330
113 Supra, note 72, 246.
“4 See, e.g., Lyons v. Lyons
115 Ouellette-Lauzon, Droit Des Personnes Et De La Famille (1976).
116 Ibid., 199.
117 Lyons, supra, note 114, 330.
IsJaworski, supra, note 114, 46.
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CONDONATION AS A BAR TO DIVORCE IN CANADA
79
ski/Lyons interpretation of section 9(2) is, in effect, an acceptance
of the doctrine of revival.
Article 196: The action for separation from bed and board is extin-
guished by a reconciliation of the parties taking place either since the
facts which gave rise to the action or after the action brought [sic].
Article 197: In either case the action is dismissed.
The plaintiff may nevertheless bring another, for any cause which has
happened since the reconciliation, and may in such case make use of the
previous causes in support of the new action.
It appears that the doctrine of revival exists for legal separation in
Quebec law.”:9 According to article 197, the original grounds for
separation from bed and board may be used by the spouse in sup-
port of a new action, provided that the latter action is based upon
events which have transpired since the reconciliation. Mignault
concurs in the view that the doctrine of revival is applicable to legal
separation:
Remarquez meme que sa demande est alors admissible, encore que les
faits nouveaux ne soient pas par eux-mgmes assez graves pour la faire
admettre, si, d’ailleurs, leur r6union aux faits ant6rieurs leur donne la
gravit6 suffisante qu’ils n’ont point par eux seuls: autrement, dans quel
but la loi permettrait-elle de faire revivre les faits ant6rieurs? 120
Jett6 also maintains that reconciliation in article 197 is conditional:
… si la r6conciliation rend Faction non recevable, elle ne l’6teint pas
cependant absolument,.ou plut6t elle ne fait disparaltre que condition-
nellement les causes qui la justifiaient.121
The commentaries to the Draft Civil Code, in distinguishing
between section. 9(2) and article 197, state that although condoned
conduct cannot be invoked in a petition for divorce, acts prior to
reconciliation -may be used to support an action for separation
from bed and board.’ Cases such as Lyons v. Lyons and Jaworski
v. Jaworski, which give to section 9(2) a meaning similar to that
of article 197, have departed from the olearly expressed intent of
Parliament. Their interpretation renders section 9(2) nugatory.
Is there an inconsistency between section 9(2) and section
9(1)(c) of the Divorce Act? The question focuses on whether the
court is permitted to examine condoned conduct when exercising
119M. v. Dame X. [1943] B.R. 668; Dame Stickler v. Maxwell (1923) 36 B.R.
408; and Dame Couteau v. Skelley (1901) 20 C.S. 216.
2 0 Mignault, Le Droit Civil Canadien (1896), t. 2, 19.
1
121 lett6, De la Sdparation de Corps (1928-29) 7 R. du D. 214; cited in M. v.
Dame X., supra, note 119, 672.
’22 Civil Code Revision Office, Report on the Quebec Civil Code (1977), vol.
II (Commentaries), t. 1, Bk 2, 177.
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its discretion under section 9(1)(c). Lyons v. Lyons outlines the
problem:
Suppose, in a hypothetical case, that the court was satisfied that the
public interest would be better served by granting
the decree, the
petitioner’s condonation notwithstanding, to grant the decree would be
in effect reviving the condoned conduct, because without it there would
be no ground for the divorce, and yet to do so seems to be flying in the
face of the clear meaning of s. 9(2).123
The Court stated that section 9(1)(c) must be read subject to
section 9(2). In other words, condoned conduct may not be con-
sidered by the court when it is deciding whether or not the public
interest will be served by granting the decree. To do otherwise
would be to revive the condoned conduct and thus to contravene
section 9(2).124
Payne, however, suggests that section 9(2)
is inapplicable in
cases where the court is exercising its discretion under section
9()(c); section 9(2) must be read subject to section 9(1)(c). 125
Parker J. agreed that evidence of conduct prior to condonation may
be examined by the courts in the course of their decision as to
whether or not the public interest would be better served by granting
the decree.126 This is the better view, according to ‘Davies. She
states that the Lyons interpretation places significant and unwar-
ranted constraints upon the broad discretion which section 9(1)(c)
was intended to confer upon the courts. 127
VII. Conclusion
Despite the fact that many unresolved issues exist with respect
to condonation, it is important to remember that the Divorce Act
is only ten years old. Although some areas of law are not com-
pletely settled, 28 the courts are moving in the direction of unanimity.
123 Supra, note 114, 331.
124 Ibid., 332.
125 Payne, The Divorce Act (Canada) 1968 (1969) 8 Alta L. Rev. 1, 26.
12 6 Raney v. Raney, supra, note 99, 157.
127 Davies, supra, note 33, 127.
128 Unlike other aspects of condonation, the courts have reached a consensus
with respect to the burden and standard of proof. The onus of proving that
an offence has not been condoned lies on the petitioner. As Davies explains,
there is a prima facie presumption against condonation and it is only in
situations in which the court suspects that condonation has occurred that
this burden lies with the petitioner: ibid., 125. The petitioner must prove on a
balance of probabilities that he or she did not condone the offence of his
or her spouse: Trites, supra, note 63, 254. A matrimonial offence under s. 3
is capable of being condoned up to the date of the decree absolute: Brown
v. Brown [1971] 1 W.W.R. 236 (Sask. Q.B.).
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CONDONATION AS A BAR TO DIVORCE IN CANADA
81
The following trends may be discerned:
1) condonation is a bilateral act rather than a unilateral act;
2)
sexual intercourse and cohabitation are to be treated equally
with other elements of evidence which establish condonation;
and
it is within the court’s discretion to grant a decree nisi, not-
withstanding condonation, if it is deemed to be in the public
interest.
3)
It is to be hoped that the remaining issues in this area of law will
be approached by the courts in a more uniform fashion.
