McGILL LAW JOURNAL
Volume 13
Montreal
1967
Number]
Divorce by Resolution of the Senate
by Allison A. M. Walsh *
Introduction and Historical Background
With the enactment of the Dissolution and Annulment of Mar-
riages Act,’ one more step was taken in the evolution of the method
of dealing with divorce and annulment of marriage for persons domi-
ciled in Quebec and Newfoundland, the only provinces which do
not have courts to deal with divorce.
The Parliament of Canada enjoys exclusive legislative jurisdic-
tion over marriage and divorce by virtue of Section 91 (26) of the
British North America Act, 1867, but has exercised this jurisdic-
tion quite sparingly. It has not, for instance, provided a standard
code for divorce nor has it established divorce courts for Canada
as a whole, although it might have done so under Section 101 of the
British North America Act which confers on Parliament power to
establish courts with respect to matters within federal competence.
It did by the Marriage and Divorce Act 2 of 1925 eliminate the so-
called “double standard” by providing that in any court having juris-
diction to grant a divorce a vinculo matrimonii a wife might sue
for divorce on the ground of her husband’s adultery only. Prior to
this enactment the wife in addition to proving adultery on the part
of her husband had to prove either incestuous adultery, bigamy
coupled with adultery, adultery coupled with desertion, or adultery
coupled with such cruelty as without adultery would have entitled
her to a divorce a mensa et thoro (judicial separation), whereas the
* The Honourable Mr. Justice Allison A. M. Walsh, B.A., B.C.L. (McGill)
is
Commissioner of the Senate and Judge of the Exchequor Court in connection
with the hearings of divorce petitions from Quebec and Newfoundland.
1 12 Eliz. II, ch. 10, assented to August 2, 1963.
2 R.S.C. 1952, ch. 176.
McGILL LAW JOURNAL
[Vol. 13
husband suing the wife for divorce merely had to prove adultery.
The Divorce Jurisdiction Acts of 1930, the second general statute
on divorce, provides a specific exception to the general rule, that
the domicile of a married woman is always that of her husband, by
permitting a wife who had been deserted by and living separate and
apart from her husband for a period of two years and upwards to
institute proceedings in any province of Canada in which there is
a court having jurisdiction to grant a divorce a vinculo matrimonii
on grounds permitted according to the law of such province, if im-
mediately prior to such desertion the husband was domiciled in that
same province. This will be dealt with more fully later.
The Canadian Parliament gave divorce jurisdiction to the Su-
preme Court of Ontario by virtue of the Divorce Act 4 (Ontario) of
1930 which introduced into Ontario the law of England on dissolu-
tion and annulment of marriages as of July 15th, 1870. In case any
aspect of this statute was beyond the legislative authority of Parlia-
ment, the Legislature of Ontario confirmed its provisions by the
Marriage Act5 of 1933 which provided0
“So many of the provisions of the Divorce Act (Ontario) as are, or may
be within the legislative competence of this Legislature, are hereby enacted
as it fully set out in this Act”.
Moreover the federal statute of 1930 was followed by an On-
tario statute in 1931,7 which dealt with maintenance, alimony, prop-
ert;y settlements, the custody of children, and rules of procedure,
none of which were dealt with by the federal statute.
The courts of the provinces of Alberta and Saskatchewan in-
herited jurisdiction from the laws previously in force in the North
West Territories out of which these provinces were carved follow-
ing Confederation. A Federal Statute 3 in 1888 declared the Law
of England as of July 15, 1870, to be applicable in Manitoba. In
British Columbia, the laws of England as of November 19th, 1858,
were proclaimed in force by a Royal Proclamation of that date and
an Ordinance of 1867 made the same provision after the union of
Vancouver Island and British Columbia. These provisions were con-
tinued in force by the terms of the Imperial Order in Council ad-
3 R.S.C. 1952, ch. 84.
4 R.S.C. 1952, ch. 85.
5 An Act to amend the Marriage Act, 23 Geo. V, ch. 29. [The Marriage Act,
1933].
6 At p. 52.
7An Act to Confer upon the Supreme Court certain Powers in Actions for
Divorce, 21 Geo. V, ch. 25. [The Matrimonial Causes Act, 1931].
8 An Act respecting the application of certain Laws herein ‘mentioned to the
Province of Manitoba, 51 Vict., ch. 33.
No. 1]
DIVORCE BY RESOLUTION OF THE SENATE
3
mitting that colony into the union on May 16th, 1871. 1857 peti-
tions for divorce in England had to be heard by three judges from
whom there was an appeal to the House of the Lords, but when
the laws of England were introduced into British Columbia, these
powers were granted to a single judge with no provision at the
time for an appeal. It was therefore held by the courts, prior to
1937, that no appeal lay from a single judge in British Columbia,
either granting or refusing a divorce petition. This was remedied
in 1937 by a federal Act known as the British Columbia Divorce
Appeals Act.9 Nova Scota, New Brunswick and Prince Edward
Island each had a pre-confederation divorce statute which was
continued in force except as modified by the Acts of Parliament
of Canada already referred to. As a result of this, cruelty is still
a ground for divorce in Nova Scotia, the only province with such
a ground.
The laws of England in force in Newfoundland prior to its
joining Canada in 1949 were those of 1832, and the Newfoundland
Supreme Court has held that the Newfoundland courts possessed at
that time only the jurisdiction then possessed by the ecclesiastical
courts in England which could not decree divorces a vinculo matri-
monii, but only divorces a mensa et thoro.10 When Newfoundland
became a province, the pre-existing laws were continued in force
by virtue of the Newfoundland Act,” so its courts have no juris-
diction over divorce a vinculo matrimonii. The same is of course
true of Quebec, though the Quebec Courts have a substantial juris-
diction over nullity of marriage.
As a result of this, the Parliament of Canada since Confedera-
tion has granted by private act divorces a vinculo matrimonii, on
the petitions of persons domiciled in Quebec and since 1949 on the
petitions of persons domiciled in Newfoundland. Its jurisdiction is of
course absolute as to the grounds on which it may pass a bill of
divorce, but as a matter of policy it generally granted such relief
only on the grounds recognized in England as of July 15th, 1870,
the date which is given special significance in the federal legislation
already referred to. The only exception is that the “double standard”
of English Law was not followed in Canada and was formally elimi-
nated by the Act of 1925.12 There is no doubt that Parliament can
grant a divorce on the instance of a person domiciled anywhere in
Canada. As it has no desire to interfere where an alternative remedy
9 R.S.C. 1952, ch. 21.
iORounsell v. Hounsell [1949] 3 D.L.R. 38 (Nfld.).
11An Act to approve the Terms of Union of Newfoundland and Canada, 13
Geo. VI, ch. 1, 51, 518 of the Schedule therein enacted.
McGILL LAW JOURNAL
[Vol. 13
is available before the court of one of the Provinces, however, such
divorces are normally heard only when the petitioner is domiciled
in Quebec or in Newfoundland, or there is a very serious doubt
about the domicile, or where the petitioner comes within the pro-
visions of the Divorce Jurisdiction Act, aforementioned. 3
Each divorce was a Private Act of Parliament. Initial hearings
of the evidence took place before the Standing Committee of the
Senate on Divorce which made its recommendation. After passage
by the Senate, the bill was sent to the House of Commons and in
due course referred to the corresponding Committe of the House.
There, the transcript of the documents, exhibits and evidence sub-
mitted before the Senate Committee was considered and its own
findings based thereon was made, recommending or rejecting the
Bill or referring it back for further evidence. In due course if no
difficulties were encountered the Bill had its three readings in the
House of Commons and eventually received Royal Assent. As the
number of divorce petitions grew, however, a substantial body of
opinion began to feel that as the time of Parliament was being
increasingly taken up with the consideration of these petitions, it
should be relieved of this unwelcome chore. Various attempts were
made between 1949 and J-960 by means of private members’ Bills
to deal with the situation but they were all talked out, so by 1962
some members of Parliament to focus public attention on the prob-
lem began to block individual diverce Bills. After considerable
discussion over a period of two years and by tacit all-party agree-
ment the impasse was settled by the enactment in 1963 of the Disso-
lution and Annulment of Marriages Act.14
The Act provides I’ for the hearing of the evidence by an officer
of the Senate designated by the Speaker of the Senate, who will re-
port thereon, but who will not recommend that a marriage be dis-
solved or annulled except on the same grounds as existed under the
laws of England, as of July 15, 1870 or under the Marriage and
Divorce Act,’6 the Act which eliminated the double standard. The
Act further provides 17 that the Senate may make such rules and
orders respecting petitions for dissolution or annulment of marriage,
the procedure at hearings thereon and all other matters as it con-
12 See supra, footnote number 2. This double standard has also been eliminated
from English Law.
13 R.S.C. 1952, ch. 84.
1412 Eliz. II, ch. 10.
15 At p. 53.
16 R.S.C. 1952, ch. 176.
17At S. 4.
No. 1]
DIVORCE BY RESOLUTION OF THE SENATE
5
siders necessary or desirable for the carrying out of the provisions
of the Art. By virtue of these rules which where adopted in due course
it was provided that the report of the officer of the Senate who
was designated as Commissioner would be examined by the Senate
Standing Committee on Divorce before being referred to the Senate.
This Committee has the right to summon the Commissioner to ex-
plain his recommendations or may refer the report back to him
for review or rehearing of witnesses or for hearing of additional
witnesses. The Committee then makes its report to the Senate, re-
ferring the report of the Commissioner to it and indicating whether
or not it concurs with his recommendations. When it does concur a
draft resolution is referred to the Senate with the Committe Report
and in due course is adopted by the Senate. The Act further pro-
vides I that within thirty days after such adoption either party to
the proceedings may appeal by presenting a petition to Parliament
together with a draft Bill based thereon praying for the passage
of an Act annulling or modifying such resolution. In such event the
operation of the resolution is suspended until an Act based on the
petition has been dealt with. If no objection has been taken by either
party, within thirty days after its adoption, the resolution then has
full force and effect.
The new legislation is novel from the constitutional point of
view in that it represents the first time in which the Parliament of
Canada has delegated specific legislative powers to one of its consti-
tuent elements, namely the Senate. It is to be noted, however, that
the Senate is not passing an Act but adopting a resolution in each
individual case by virtue of this new legislation. Furthermore, it is
to be noted that Parliament has not divested itself of any of its
authority over marriage and divorce. The new legislation does not
abrogate the possibility of a petitioner proceeding by way of a peti-
tion to both Houses for the passing of an Act of Parliament, as in
the past, but merely provides an alternative and simpler system.
Parliament could still grant a divorce on any grounds it deems justi-
fied since it is only the Commissioner, in his recommendation to
the Senate, who is limited to the grounds recognized under the
Laws of England as of July 15th, 1870, and not Parliament itself.
There is no mention in the Act or in the rules of the Senate of
the question of domicile but in accordance with the practice of the
Senate Standing Committee on Divorce under the former procedure,
it is unlikely that the Commissioner would recommend or that the
Senate would adopt a resolution for the dissolution of the marriage
of a person clearly domiciled in one of the provinces of Canada,
I8At S. 2(2).
McGILL LAW JOURNAL
[Vol. 13
which has a court with authority to grant such dissolution, unless
the petitioner comes within the provisions of the Divorce Juris-
diction Act which will be discussed more fully later.
The present procedure represents certain improvements over the
old. Hearings can now continue throughout the year, whereas the
Senate Standing Committee on Divorce only sat while the Parlia-
ment was in session. It also relieves the House of Commons alto-
gether of any responsibility in such proceedings as well as the
members of the Senate Standing Committee on Divorce of the
arduous task of hearing the evidence of the witnesses. It still pre-
sents certain disadvantages, among them the fact that although the
hearing can take place at any time of the year, the Commissioner’s
report can only be considered by the Senate standing Committee
on Divorce and the resolutions only adopted when the Senate is in
session. Whether or not this is the last word on the matter is
doubtful, but it would be inappropriate to comment further here
since the question is at present under consideration by a Joint Com-
mittee of the Senate and of the House of Commons. This Com-
mittee, appointed to inquire into and report upon divorce in Canada
and the social and legal problems relating thereto, is empowered
inter alia, to consider the possibility of extending the grounds for
dissolution of marriage and to review the present procedure and
possible improvements thereto.
In virtue of the new legislation, the writer was designated on
November 19th, 1963, as the Officer of the Senate to hear the evi-
dence and report thereon to the Senate, and on December 15th,
1963, the new rules were adopted. Hearings under the new system,
were commenced in January 1964. In July 1964, following an amend-
ment to the Exchequer Court Act, the Commissioner was appointed
a Judge of the Exchequer Court of Canada, and in due course the
Honourable Charles Cameron, Q.C., a retired Judge of the Exchequer
Court of Canada was also designated as Commissioner to assist in
the heavy volume of work and to replace the full-time Commis-
sioner should it be necessary for him to recuse himself due to
acquaintance with the parties or knowledge of the facts of any
petition.
Although the law on the subject is set out in the Dissolution
and Annulment of Marriages Act 19 and in the rules passed in virtue
thereof, (copies of which can be obtained on request from the Clerk
of the Senate Committee), there have been a number of precedents
established over the years at the hearings before the Senate Stand-
19 12 Eliz. II, ch. 10.
No. 1]
DIVORCE BY RESOLUTION OF THE SENATE
7
ing Committe on Divorce, and a number of policies and practices
adopted, which are being carried out and followed as closely as
possible under the new procedure. Many of these are not recorded
or readily available to attorneys contemplating such proceedings.
Those attorneys practising regularly in this field have learned them
by experience, and information about them can be obtained by cor-
responding or conferring with the clerks in the Commissioner’s of-
fice, but it is felt that it might be helpful if some of these prece-
dents and procedural practices were set out here. As to the rules
themselves they must be rigidly followed and this is even more
important than in court proceedings, since in his report to the
Senate the Commissionner must include a statement to the effect
that “the provisions of Part IV of the Rules of the Senate have
been complied with in all material respects”. The pitfalls for attor-
neys who do not comply strictly with the rather difficult rules are
many, as can be seen from the check-list used by the clerks of the
Commissioner’s office, in examination of the proceedings before a
date is fixed for hearing. This list includes no less than forty-five
of the more common defects and the steps which have to be taken
to remedy them, which steps are frequently time-consuming and
costly. Many of these difficulties could be avoided if the forms set
out in the rules were closely followed in the drawing of the petition
and accompanying documents, including the Bailiff’s return of serv-
ice, instead of attempting to draft these proceedings independently
without reference to the suggested forms, as many attorneys seem
to do.
Applicable rules of evidence
The proceedings before the Commissioner are judicial proceed-
ings. Rule 180 of the Rules of the Senate reads as follows:
“The petitioner, the respondent, and co-respondent and all other witnesses
appearing or produced before the Divorce Committee or the Commissioner
shall be examined upon oath, or upon affirmation in cases where witnesses
are allowed by the law of Canada to affirm; and the law of evidence shall,
subject to the provisions in these rules, apply to proceedings before the
Divorce Committee and the Commissioner, and shall be observed on all
questions of fact”.
By virtue of Section 36 of the Canada Evidence Act,20 dealing
with proceedings over which the Parliament of Canada has legis-
lative authority, the laws of evidence in force in the province in
which the proceedings take place applies to such proceedings, sub-
20 R.S.C. 1952, ch. 307.
McGILL LAW JOURNAL
[Vol. 13
ject to the Canada Evidence Act and other acts of the Parliament
of Canada. Although the proceedings deal with petitions for dis-
solution or annulment of marriage for persons domiciled in Quebec
or Newfoundland (always subject to the exception provided in the
Divorce Jurisdiction Act), they nevertheless take place in Ontario.
As in other court proceedings they are only formally initiated when
the documents are filed in the office of the court having jurisdic-
tion, which in this case is the office of the Commissioner and hence
the proceedings must be deemed to initiate in Ontario. This reads
into the laws of evidence by which the Commissioner is governed
the relevant sections of the Ontai-io Evidence Act.21 Two important
consequences of this will be dealt with later.
There is no provision for the taking of evidence by rogatory
commission, and in fact there is some doubt as to whether the Cana-
dian Parliament has the constitutional authority to provide for a
rogatory commission for this purpose. The introduction of affidavit
evidence is, however, provided for by Rule 181, which reads,
“Declarations and affidavits allowed or required in proof may be made
under the Canada Evidence Act or in a form valid in the jurisdiction in
which they are made”.
The practice is not to permit the introduction of affidavit evi-
dence in any case in which the witness can be readily brought to
testify in person. Thus the evidence of a witness resident in On-
tario, Quebec or a near-by province or state would not be accepted
by way of affidavit unless severe illness or disability prevented
personal attendance. On the other hand the personal attendance of
a party or witness living abroad or at a considerable distance from
the court, such as in California, British Columbia or Newfoundlad
is sometimes dispensed with and permission given to receive such
evidence by affidavit or declaration when it appears that otherwise
great hardship would ensue. A preliminary application has to be
made, supported by affidavits indicating the financial or other hard-
ship before permission to introduce such an affidavit or declaration
is given. A petition is never permitted to proceed, however in which
all the evidence is given by affidavit. That is to say, if the evidence
for the petitioner is to be given by affidavit, then the evidence of
adultery would have to be given by witnesses who will testify in
person, and conversely if permission is given to receive the evi-
dence of adultery in affidavit form then the petitioner will have
to be personally present to testify. Needless to say the affidavit
should annex the photograph of the party with respect to whom
the evidence is being given for identification by the witness, as
21 R.S.O. 1960, ch. 126.
No. 1]
DIVORCE BY RESOLUTION OF THE SENATE
9
well as the marriage certificate and any other documents referred
to. It is also evident that affidavit evidence cannot be received in
a contested petition, since there has to be an opportunity for the
other party to cross-examine the witness.
Service of documents
Although it is not formally set out in the rules relating to dis-
solution or annulment of marriages, the Senate Standing Com-
mittee on Divorce passed a formal resolution some years ago that
service should be’ made by Bailiff, Sheriff or Sheriff’s Officer.
This was to replace the service which was formally permitted in
some jurisdiction by any person of the age of majority. The officer
making the service must identify the respondent by photograph, if
such photograph can be obtained, and must also ask both the respond-
ent and co-respondent to acknowledge receipt of service on the
back of the document which he then signs as a witness. If either
or both refuse to acknowledge receipt of service, he shall so indi-
cate in his return. He then must swear to his return of service
before a Notary or Commissioner who will identify the exhibits
referred to in the affidavit of service, namely, the Notice of Appli-
cation for Divorce, the Petition and accompanying affidavit, the
Information for Respondent and Co-Respondent, and the photograph
of respondent.
The Bailiff, Sheriff, or Sheriff’s Office, who has made the
service is not deemed to be a suitable witness at the hearing as
to the adultery. If he has made the investigation and is to be a
witness at the hearing, then someone else should make the service.
The naming and/or serving of a co-respondent may be dispensed
with by permission given on an application supported by affidavit
setting out what efforts have been made to obtain the name and/or
address of the co-respondent. While it is recognized that in some
cases a co-respondent who is caught committing adultery may refuse
to give his or her name or may give a fictitious name or address,
or may have moved from the address given before service can be
effected, nevertheless, before such permission can be given, the Com-
missioner must be satisfied that every reasonable effort has been
made to obtain the name and/or address by further investigation,
including inquiries from respondent, following of the co-respondent
after the commission of the adultery, and other similar steps. The
inability to provide the name and/or address of co-respondent al-
ways arouses some suspicion that the co-respondent may be a ficti-
tious person or a person acting as a professional co-respondent in
McGILL LAW JOURNAL
(Vol. 18
an attempt at connivance to fabricate evidence; hence such applica-
tions are scrutinized most carefully.
It is an even more serious step to permit the petitioner to proceed
without serving the respondent and while substitutional service is
permitted, permission for it is only granted in very rare and excep-
tional cases. In addition to further investigation in an attempt to
trace his whereabouts if he has disappeared after the commission
of adultery, it is usually also necessary to make inquiries from the
Missing Persons Bureau of the local police, the Provincial Police
of the Province, and the R.C.M.P., to advertise for him in a news-
paper at the place of his last residence and any place to which there
is any indication he might have gone, and to require copies of the
petition and accompanying documents to be sent in a sealed en-
velope addressed to him to each of his known relatives or close
friends, with the request that they forward the communication to him.
It is only after such cumbersome and costly procedures have been
adopted that such substitutional service on him is acceptable. This
practice is much stricter than the rule in the civil courts where on
the simple return of non est inventus by the Bailiff, permission can
be given to advertise for the defendant in a civil action, such ad-
vertisement having the effect of valid service on him.
In the event that a respondent or co-respondent refuses to ac-
knowledge receipt of service when requested to do so by the Bailiff,
or Sheriff’s Officer, it is the practice for the Clerk of the Commis-
sioner to send a registered letter to that person at the address where
such service took place advising that a petition has been filed. If
such registered letter is subsequently returned marked “Removed”
or “Unknown” an explanation will be required from petitioner’s
attorney or the bailiff prior to the hearing. Service should always
be made at the residence or business address of respondent and at
the address given by co-respondent at the time of the investigation.
Service at any other address arouses some suspicion. It must be
remembered that although a Bailiff is required to identify the re-
spondent by photograph, no such identification is possible in the
case of the co-respondent. Every effort has to be made to eliminate
the possibility of some person being substituted for the real co-re-
spondent at the time of service. As the Bailiff has no means of
identification of the co-respondent other than the latter’s residence
address, it is necessary that service be effected at that address in
order to avoid substitution.
When the petition is finally fixed for hearing, notices of hearing
are sent to all the parties even if there has been no contestation.
Surprisingly, respondents or co-respondents frequently communicate
No. 1]
DIVORCE BY RESOLUTION OF THE SENATE
11
with the Commissioner’s office for the first time at this late date
indicating a desire to oppose the petition although the delays to do
so have since expired. Since the Information to Respondent and Co-
Respondent which is served with the petition clearly gives them
thirty days to contest, any contestation after this date can be made
only with permission of the Commissioner, on an application indi-
cating why the contestation was not made within the proper delay.
Nevertheless, an application to contest after the delays is usually
granted since it is always desirable to give all parties an opportunity
to be heard as the matter involves such serious consequences.
Domicile
The fundamental principles of private international law are used
in the determination of domicile. Domicile in Canada is a provincial
matter, but as was already stated the Senate, if it chose, could enter-
tain a petition for a resolution dissolving the marriage of a person
domiciled anywhere in Canada. It quite properly, however, refuses
to do so when there is a competent provincial court to deal with
the matter and hence for practical purposes the petitioner should
establish his domicile in Quebec or in Newfoundland. This rule is
subject to -the exception 6et out in the Divorce Jurisdiction Act 2 2
already referred to, which permits a married woman who has been
deserted by and living separate and apart from her husband for a
period of two years and upwards to bring proceedings before the
court of the province in which they were domiciled immediately
prior to the desertion. This resulted from the Privy Council decision
in Attorney General of Alberta v. Cook,23 which dealt with an
Alberta divorce obtained by the wife who had previously obtained
a judicial separation from her husband in Alberta, and as a result
claimed she had the right to establish her own domicile in that
Province, though she and her husband were originally domiciled in
Ontario and he had not lost his domicile there when he deserted
her in Alberta. The Privy Council held that she could not acquire a
domicile separate and distinct from her husband this being repug-
nant to the idea of unity of personality of the spouses. This judg-
ment has been much discussed and criticized in the light of present
day social condition.2 4 The Divorce Jurisdiction Act attempts to over-
come this, and it is interesting to note that the original draft of
22 R.S.C. 1952, ch. 84.
23 [19263 A.C. 444.
2-4 See: Horace E. Read, The Divorce Jurisdiction Act, 1930, (1931) 9 Can. Bar
Rev. 73; Case and Comment (1929) 7 Can. Bar Rev. 126.
McGILL LAW JOURNAL
[Vol. 13
the Act went much further than the final legislation. It did not limit
the grounds of separation to desertion, nor the jurisdiction to the
province where the parties were domiciled before the separation.
The Act as finally passed, however, so limits it, and permits the
deserted wife to have recourse to the Courts of the province where
the desertion took place and they were domiciled without the neces-
sity of following her husband to the court of some other province,
or outside the country, should he have left Canada, and acquired a
domicile elsewhere. In the latter event however there might be some
doubt as to the validity of such a divorce in private international
law, unless the divorce would be recognized in the foreign jurisdic-
tion where the husband has acquired a new domicile in which event
the doctrine of ‘renvoi’ could apply and it would be recognized else-
where also (Armitage v. Attorney General –
1906, p. 135).21
The Act as such would not apply to proceedings by way of re-
solution of’the Senate by a wife deserted in Quebec or Newfound-
land since it refers to
“Any one of those provinces of Canada in which there is a court 26 having
jurisdiction to grant a divorce a vinculo matrimonii” 27
but the Senate has always adopted the same principle for these
provinces, and it is now recognized by long-established practice that
a married woman who is deserted by and is living apart for a period
of two years and upwards from her husband who was domiciled in
the province of Quebec or Newfoundland immediately prior to such
desertion may thereafter petition for divorce by resolution of the
Senate.
An interesting question arises in connection with the laws of
the Province of Quebec. Article 83 of the Civil Code states:
“a married woman not separated from bed and board has no other domicile
than that of her husband”.
Article 207 says:
“the separation relieves the husband from the obligation of receiving his
wife and the wife from that of living with her husband; it gives the wife the
right of choosing for herself a domicile other than that of her husband”.
On this basis it has been argued that a woman legally separated
according to the laws of the Province of Quebec, for whatever ground
the separation is granted, and whether she is the innocent or the
guilty party may choose a domicile separate and apart from her
husband, whether this consists of retaining her domicile in the
25 Armitage v. Attomey-General [1906] p. 135.
26 Stress mine.
2TS. 2.
No. 1]
DIVORCE BY RESOLUTION OF THE SENATE
13
province when the husband has subsequently obtained a new domi-
cile elsewhere, or obtaining a new one outside the province. The com-
mentators all agree that this is the effect of this article.28 However
in the light of the Cook case, which, however it may have been criti-
cized, must be considered as forming part of our law, and also in
the light of the provisions of the Divorce Jurisdiction Act, it is
clear that this interpretation is an over-simplification. While Quebec
can undoubtedly legislate with respect to domicile it appears unlikely
that such legislation can have extra-provincial effect. By virtue of
these articles the Quebec courts could undoubtedly accept jurisdic-
tion over matters depending on the domicile of a wife who .has
obtained a legal separation from her husband in -Quebec and .has
retained her domicile there although he has obtained a domicile
elsewhere. In the converse case where the wife following the legal
separation in Quebec has herself established a domicile elsewhere,
it appears very unlikely, however, that the courts of her new domi-
cile would apply the provisions of the Quebec Civil Code so as to
permit her to bring divorce proceedings there unless there were a
similar provision in their law since questions involving the nature,
acquisition and change of domicile, as distinct from the effets of
domicile already established are determined by the lex fori.
Now it has already been stated that the Senate will apply the
principles of the Divorce Jurisdiction Act and in cases of two-years’
desertion accept jurisdiction over the divorce of a wife whose hus-
band’s domicile was in Quebec at the time of the desertion and he
has subsequently acquired a domicile in, for example, British Colum-
bia, but this is by virtue of the provisions of that Act and not of
the Quebec Civil Code and would be restricted to instances of two-
years’ desertion and not when the separation has been obtained for
other causes. Moreover on the basis of the legal principle inclusio
unius fit exclusio alterius it can reasonably be assumed that had the
Canadian Parliament intended to extend the exceptional provisions
of the Divorce Jurisdiction Act to causes of separation other than
desertion, it would have done so, and since it did not, it is not desira-
ble to make a special exception in the case of Quebec on the basis
of the Civil Code Articles. The Senate might perhaps do so on
compassionate grounds where the husband has, following the sepa-
ration, left Canada and it cannot be established where his new
domicile is, but it seems clear that in the case of a husband who
28E. Lafleur, Conflict of Laws, (Montreal, 1898), p. 57; Johnson, Conflict of
Laws, (Montreal, 1962), 2nd ed., p. 93; Trudel, Traitg du Droit Civil de Qu6bec,
vol. 2, p. 17.
McGILL LAW JOURNAL
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has acquired a domicile elsewhere in Canada it would require the
wife to bring proceedings before the Courts of such domicile if the
grounds of the separation were other than two-years’ desertion, and
this despite the provisions of the Quebec Civil Code authorizing her
to choose her own domicile.
Evidence of parties to the action
It has already been stated that laws of evidence of the Province
of Ontario are applied to hearings before the Senate Commissioner,
since the hearing takes place in Ontario. Now Section 10 of the
Ontario Evidence Act 29 provides that in the case of proceedings
instituted in consequence of adultery, the husbands and wives of
the parties are competent to give evidence
“provided that no witness in any such proceedings whether a party to the suit
or not is liable to be asked or bound to answer any questions tending to show
that he or she is guilty of adultery, unless the witness shall have already
given evidence
in the same proceeding in disproof of his or her alleged
adultery.”
The practice is to give such warning to the parties to the suit
and make sure that they understand before they commence their
testimony. In contested cases, of course, where the respondent and
co-respondent frequently commence their testimony by denying the
adultery with which they are charged, they leave themselves open
to questioning with respect to it. There is jurisprudence to the
effect, however, that even after such witness has answered some
questions tending to show that he or she is guilty of adultery the
witness can, nevertheless, at any time during his testimony, refuse
to answer further such questions. In non-contested cases it is not
uncommon for the proof to be made by the evidence of the respond-
ent, and co-respondent, who after being given this warning, never-
theless agree to give such evidence and then admit the adultery with
which they are charged. This admission of respondent and co-respon-
dent is usually sufficiently conclusive proof without the necessity of
corroborating evidence from other witnesses.
Production of birth certificates
On the same basis, and following the law of Ontario the produc-
tion of birth certificate of adulterine children is not permitted even
if such certificates originated in the Province of Quebec. Section
43 (2) of the Vital Statistics of Ontario30 states
29R.S.O. 1960, ch. 125.
3oR.S.O. 1960, ch. 149.
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DIVORCE BY RESOLUTION OF THE SENATE
15
“notwithstanding subsection 1 no birth certificate and certified copy of a
registration of birth or still birth is admissible evidence to affect a pre-
sumption of legitimacy”.
While it might appear that this refers to birth certificates issued
under the provisions of the Vital Statistics Act by the Registrar
General of Ontario, the Senate Standing Committee on Divorce has
decided that no birth certificate, wherever the birth be registered,
may be produced to establish illegitimacy and as a consequence the
adultery of one of the parties in any proceeding for dissolution of
the marriage by resolution of the Senate. This alters the former
practice whereby the Committee might be shown such a birth cer-
tificate, and without same being filed as an Exhibit, would read
into the record certain information therefrom, giving the date of birth
and the names of the parents but omitting the name of the child.
It is to be noted, however, that it is only birth certificates as
such which are excluded as a result of this interpretation of the
Vital Statistics Act of Ontario. Testimony as to the birth of an ille-
gitimate child is accepted. For example one of the god-parents could
state that he was present at the baptism of such a child and saw
the respondent in the divorce proceedings sign the Register of Bap-
tisms admitting the child to be his. Moreover Judgments of the Quebec
Courts in actions in disavowal of the paternity of a child brought by
the petitioner in divorce proceedings whose wife has given birth to
such an adulterine child have been admitted in evidence. In fact
evidence of a petitioner denying the paternity of a child born to his
wife during wedlock can seldom be accepted without the corroboration
of such a judgment in disavowal of paternity, or of evidence indicating
the impossibility of access.
Grounds for Divorce
The reference in the Act to the law of England relating to dis-
solution of marriage as they existed on July 15th, 1870, limits the
grounds for divorce on the recommendation of the Commissioner to
adultery, rape and sodomy or bestiality. With respect to proof of
adultery the parties are seldom caught in the actual act and in most
cases the adultery has to be inferred from circumstances which
lead to it by fair inference as a necessary conclusion. At one time
the Ontario Courts required the proof to be made beyond reason-
able doubt but eventually adopted the viewpoint that only proof
on the balance of probability is necessary. This viewpoint was ap-
proved by the Supreme Court of Canada in Smith V. Smith and
McGILL LAW JOURNAL
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Sedman,31 The Ontario Court of Appeal in Boykowich v. Beyko-
‘wich,3 2 stated
“it is now definitely established that in an action for divorce on the grounds
of adultery the standard of proof is that required in a civil action”.
In theory the evidence of one witness alone is sufficient, as is
the case in the proof of any fact, but in practice corroboration would
almost always be required and it would only be in very rare and
exceptional circumstances that the finding *of adultery would be
made on the basis of the evidence of one uncorroborated witness.
Welfare of Children
Questions relating to custody of children, alimony, and property
settlements when same have not already been settled between the
parties by agreement are left to be dealt with by the courts of the
province. There is considerable controversy as to whether some of
these matters do not come within Federal competence by virtue of
its jurisdiction over ‘Marriage and Divorce’ rather than within the
Provincial competence by virtue of its jurisdiction over ‘Property
and Civil Rghts’, but in the absence of definitive Supreme Court
jurisprudence the matter remains unsettled. It has been argued, for
instance, that certain amendments made by the Provincial Legisla-
ture to the Civil Code since Confederation relating to sections dealing
with marriage are unconstitutional (as for example the amendment
in 1954 to the former article 188 which required that the wife could
demand a separation on the basis of her husband’s adultery only
if he kept the concubine in the common habitation). When Parlia-
ment first began dealing with divorce, some of its ealier Acts
covered matters other than mere dissolution of marriage. For ex-
ample, in the case of Campbell,,33 which dealt with judicial separa-
tion rather than divorce as such, the wife was declared to be sepa-
rated from bed and board from her husband and provision was made
both for alimony and for the custody of a child. Some of the earlier
cases had clauses declaring the children of the marriage to be legiti-
mate, and one of them, namely that of Whiteaves3 4 went so far as
to set aside the marriage contract conditions as well as declaring
the marriage to be null and void and declaring the children of the
marriage to be legitimate. This would certainly seem to be an infringe-
ment on Quebec law. In any event Parliament has not for some time
31 [1952] 2 S.C.R. 312.
32 [1953] O.R. 827.
33 An Act for the relief of Eliza Maria Campbell, 42 Vic., ch. 79 (1879).
34 An Act for the relief of Joseph Frederick Whiteavea, 32 Vict., ch. 95 (1868).
No. 1]
DIVORCE BY RESOLUTION OF THE SENATE
17
attempted to deal with questions of custody of children or alimony
and it is unlikely that such policy would be changed unless a test case
were brought to the Supreme Court establishing its right to do so.
This does not mean, however, that the Senate is indifferent to
the welfare of the children; at the hearing before the Commissioner
an inquiry is made as to what arrangements have been made for
their custody, support and welfare. While under the present practice
no order is made relating to these matters, the resolution could
nevertheless be withheld, or in extreme cases the petition could even
be dismissed, if the conclusion were reached that the petitioner was
showing a callous neglect for the welfare of his or her children.
The granting of the resolution is a matter of grace and not of right
and the Senate has always taken the position that it will not grant
relief to a petitioner who is unworthy of it and demonstrates this
by failing to support or by showing complete disregard for the moral
or physical well-being of his children. While the inquiry into these
matters is of necessity somewhat summary and does not go into the
detailed evidence required in the Quebec civil courts when a petition
for custody and alimony is presented on which the court will have
to make a definite finding, it is nevertheless necessary for the peti-
tioner to establish that the children will not suffer any more than
is inevitable in any broken marriage, as a result of the granting
of his petition.
Connivance and Collusion
Connivance means the intentional concurrence of the petitioner
in the matrimonial offence and may consist of inviting, advising, en-
joining or encouraging the act of which petitioner complains. Collu-
sion is an agreement between the parties whereby a false case is
presented to the Court, or a valid defence withheld. The false case
may be presented either by procurement or pretending adultery or
alternatively by the purchase of a divorce when the petitioner has
no real desire for it. If there is no agreement however there can be
no collusion. The existence of connivance or collusion has to be
negatived in petitioner’s affidavit annexed to his petition and in-
quired into during the course of his evidence. Connivance and collu-
sion is given the same interpretation in hearings before the Com-
missioner as in the courts, so this need not be gone into here.
It is a requirement of the Rules that the existence of any pre-
vious proceedings relating to the marriage or any agreements be-
tween the parties must be disclosed in the petition or the fact that
McGILL LAW JOURNAL
[Vol. 13
there have been no such proceedings or agreements indicated, and
an inquiry is made into this at the hearing. If there have been such
proceedings or agreements, the nature and result of them must be
disclosed though it is not necessary to file copies of the actual pro-
ceedings or judgments. The principal reason for this inquiry is that
the information may be pertinent to deciding whether there has been
connivance or collusion. For example, while it is perfectly proper
and reasonable for the wife when she is petitioner to seek to make
some property settlement with her respondent husband by means of
some agreement (such as perhaps to require payment of the amounts
promised under the Marriage Contract, or to arrange for the conti-
nuation of alimony for children which remain in custody of the
wife, or other related matters), if such an agreement were signed
a few days before evidence of adultery is obtained it would certainly
arouse some suspicion as to the veracity of this evidence. It might
seem altogether too fortuitous that as soon as a financial agreement
is reached evidence of adultery immediately becomes available, unless
by the nature of such evidence it appears that this has been going
on for some time. Similarly the payment by the respondent of an
excessive sum out of proportion to the possible legal claims of the
petitioner against him, or to the means of the parties, would indicate
that it might be a bribe to secure his freedom, and as a result the
existence of connivance or collusion might be suspected. However
when the evidence of adultery has been obtained and the petition
duly served, there would appear to be nothing improper in the fact
that a financial settlement and agreement relating to custody of the
children should be made between the parties, especially since under
Quebec Law the former wife has no claim to alimony for herself
after the divorce becomes final.
Condonation
Condonation also has to be negatived in the affidavit annexed
to the petition and in the evidence given at the hearing. Condonation
means conditional forgiveness of the matrimonial offence and the
restoration of the offending spouse to the status quo ante. Three
elements must exist, namely, full knowledge of the offence, deliber-
ate forgiveness and reconciliation, and full restoration to cohabita-
tion but not necessarily to sexual intercourse. The resumption of
sexual intercourse is conclusive evidence of condonation in almost
all cases. When the two parties continue to live in the same house
following evidence obtained by the petitioner of commission of adul-
tery by the respondent there will be a strong presumption of condo-
No. 1]
DIVORCE BY RESOLUTION OF THE SENATE
19
nation, which it is unlikely that the evidence of the petitioner alone
can destroy, unless his evidence is corroborated by that of the re-
spondent herself or some other witness who can establish conclu-
sively that they have not resumed sexual intercourse. Condoned
adultery can be revived by subsequent misconduct of the respondent
which misconduct need not consist of further adultery but could
consist of desertion alone, even though desertion alone would not,
in the first instance, have been grounds for dissolution of marriage.
Annulment of Marriage
The Act which we are dealing with is known as the Dissolution
and Annulment of Marriages Act. The word “divorce” does not ap-
pear in it, the term “dissolution of marriage” being always used
in place of it. In the course of this article the two terms have been
used interchangeably, dissolution of marriage being commonly re-
ferred to as divorce. Annulment of marriage which is also dealt with
by the Act, however under the same procedure, is a different matter
altogether annulment of marriage was also considered by the Eng-
lish Courts as of July 15th, 1870 and could be based on impotency,
bigamy, the fact that the marriage was not formally contracted in
accordance with the law of the place where it was celebrated, absence
of consent resulting from error, fraud, duress, insanity, drunkeness
or temporary impediment, or the contracting of marriage within
the prohibited degrees of consanguinity. To a considerable extent
the federal statute overlaps the Quebec Civil Code in this connec-
tion. The Civil Code provides for annulment of marriage in case
of bigamy, marriage within the prohibited degrees of consanguinity,
absence of consent, failure to fulfil the requisite formalities con-
nected with the celebration of the marriage. In most cases, therefore,
if the parties are domiciled in Quebec, proceedings in annulment of
marriage would be brought before the Quebec courts, provided that
they are brought within the time limits imposed by the various arti-
cles of the Civil Code relating to the several grounds of nullity. It
is unlikely that the Senate would wish to intervene to consider pro-
ceedings in nullity of marriage which could properly be brought
before the Quebec courts. However, in the case of impotency, Article
117 of the Civil Code states
“impotency, natural or accidental, existing at the time of the marriage
renders it null but only if such impotency be apparent and manifest. The
nullity cannot be invoked by anyone but the party who has contracted with
the impotent person or at any time after three years from the marriage”.
Quite often impotency may exist at the time of the marriage
which is not apparent or manifest, and not infrequently the parties
McGILL LAW JOURNAL
[Vol. 13
persist in attempting to consummate the marriage and hope that
the impotency will be cured, so no action is brought by the other
party within three years of the marriage. It is primarily these cases
which are the subject of petitions for resolutions of the Senate to
annul the marriage for impotency. Jurisprudence has held that the
impotency need not be of a physical nature but can be psychological,
so that the impotent party may have a mental block which prevents
him or her from accomplishing the sex act. It has also been held
that it is possible for a person to be impotent with regards to his
or her own spouse but not necessarily impotent towards other people.
The main point is that it is not merely sufficient to prove the mar-
riage has not been consummated which is usually accomplished by
medical evidence after an examination of the wife which indicates
that she is still a virgin, but it must also be established that the
failure to consummate the marriage has resulted from impotency
whether physical or psychological on the part of one spouse or the
other. These proceedings are not uncommon and have frequently
been preceded by an ecclesiastical annulment.
Interlocutory Matters
I have already dealt with some of the preliminary applications
which have to be submitted to the Commissioner on questions of
procedure. The necessity for such preliminary applications is not
spelled out in the rules but is implicit in them. There is therefore
no specific form in which they must be made. Among these are appli-
cations to be dispensed with naming and/or serving the co-respond-
ent, for substitutional service on respondent, and for permission to
introduce the evidence of one or more witnesses by way of affidavit.
Another application frequently made is by the petitioner’s respondent’s
wife for funds to contest the petition. When the petition is taken by
a husband the form of information to be served on the respondent and
co-respondent provides in Rule 162(3) (g) that
“If the wife shows to the satisfaction of the Commissioner that she has and
is prepared to establish upon oath a good defence to the charge made in the
petition and that she has not sufficient money to defend herself, the Com-
missioner may make an order that her husband shall provide her with the
necessary means to sustain her defence, including the cost of retaining
counsel and the travelling and living expenses of herself and witnesses to
and from Ottawa on her behalf, in such amount as the Commissioner shall
determine subject to appeal to the Divorce Committee.”
The purpose of this is to prevent petitioner from securing a
dissolution or annulment of his marriage, when the petition is not
well-founded, merely because his wife cannot afford to contest same.
No. 1]
DIVORCE BY RESOLUTION OF THE SENATE
21
On the other hand past experience has indicated that many contesta-
tions are frivolous, and it would impose undue hardship on peti-
tioner to require to him to pay heavy expenses for his wife’s legal
fees and expenses in addition to his own only to find that her defence
was entirely unfounded and his petition fully justified. To avoid
this the practice of the Senate Standing Committee on Divorce which
has been followed by the Commissioner, is first to establish by the
affidavits supporting the wife’s application that she is sufficiently
indigent to make it unlikely that she could sustain all the costs of
successfully contesting the petition. Once this has been determined
an order is then made requiring petitioner to deposit in the form
of a certified cheque made payable to respondent the sum of $200
which is sent to the Clerk of Senate Committees and held pending
the outcome of the hearing. If at the conclusion of the hearing the
Commissioner decides that the contestation was justified and serious
even if it is not maintained, the cheque will then be released to her;
but if, on the other hand, the contestation is not proceeded with, or
is deemed to be of a frivolous and vexatious nature, then the cer-
tified cheque will be returned to the petitioner. The sum of $200 is
the amount deemed sufficient to permit the Attorney to file a formal
contestation setting out the grounds of opposition to the petition,
and to attend for one day at Ottawa with the respondent for the
contestation. If it appears at the conclusion of one day’s hearing
that a further hearing will be required and that perhaps other wit-
nesses are necessary, a further order can be made by the Commis-
sioner for the provision of additional funds. No more than $200,
however, is normally allowed in the first instance, although rare
exceptions to this might be made in cases where the respondent re-
sides abroad or in a distant part of the country so that very heavy
travelling expenses will be incurred in addition to legal fees. In
all cases the relative means of the petitioner and the respondent will
be taken into consideration.
Contestations
Rule 192 provides that if adultery be proved the respondent or
co-respondent may nevertheless be admitted to prove connivance
at or condonation of the adultery, collusion in the proceedings for
divorce, or adultery or cruelty to the respondent or her children or
bad conduct on the part of the petitioner. Rule 192A provides that
where a petitioner has been guilty of a matrimonial offence all the
facts in connection therewith shall be disclosed by the petitioner to
the Commissioner at the hearing. In such a case in accordance with
McGILL LAW JOURNAL
[Vol. 13
the existing jurisprudence, discretion can be exercised in favour of
the petitioner despite his or her own adultery. In deciding whether
to exercise discretion, consideration will be given to whether it ap-
pears likely that respondent’s own adultery resulted from the prior
adultery of the petitioner or whether petitioner’s own adultery was
subsequent to that of the respondent, to the welfare of the children,
to the possibility of remarriage of either or both parties, to whether
any question of public order is involved, or to whether it would not
be better to grant the divorce when both parties have been guilty
of adultery.3 5 When a contestation is made, respondent or co-re-
spondent is required in accordance with the provisions of the form
of information (which must be served on them) to send a notice to
the Clerk of the Senate of Canada and to the Solicitor for the peti-
tioner stating his residence and address, the name of the solicitor
for him and of an Ottawa agent and a concise statement of the
material facts upon which he or she relies in answer to the petition.
This contestation is to be made within thirty days of service. While
there is no provision in the rules for a motion for particulars there
is some precedent for permitting it to be made when it appears that
a party to the proceedings may be taken by surprise by allegations
in the petition or in the contestation which are of too generalized
a nature. While considerable latitude is allowed in the presentation
of evidence at the hearing, the respondent or co-respondent cannot
introduce evidence with respect to grounds of defence which have
not been pleaded in the contestation.
Conclusion
It is obvious that this article is not intended to be a treatise on
the law and practice of divorce in resolutions before the Senate of
Canada, but merely an attempt to point out certain precedents and
rules of practice which are followed but which do not appear from
a reading of the Act or of the Rules themselves. It is hoped that
these explanations may answer some of the questions which most
frequently occur in connection with these rather unusual proceedings
and about which practicing attorneys seeking guidance, make en-
quiries.
35 See Blunt V. Blunt [1943] A.C.517.
