McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Montreal
Volume 28
1983
No 2
Marriage Prohibitions, Adoption and Private Acts of
Parliament: The Need for Reform
H. Albert Hubbard, Q.C.*
In this article, the uncertainties and anoma-
lies of the law in Canada regarding rela-
tionships within which marriages are prohi-
bited are canvassed fully. The author demon-
strates the need for legislation to remove the
irregularities with which the law has become
encrusted and to provide a background
against which to consider two even more
important reasons for legislative reform.
First, the law no longer reflects the needs and
wants of society, as witnessed by the easy
passage of private acts of exemption that
belie any justification for the general rules
themselves. Secondly, the intersection of the
federal marriage prohibitions with provincial
adoption laws has produced a legal quag-
mire, and a coherent federal policy regarding
the capacity of adoptive relatives to inter-
marry is overdue. In his conclusions, the
author reviews the purposes of marriage pro-
hibitions and makes concrete suggestions for
legislative change.
L’auteur souligne les incertitudes et les ano-
malies A l’6gard des empachements au ma-
riage en droit canadien afin de d6montrer
qu’une r6forme l6gislative serait souhai-
table, y ajoutant deux justifications de fond
mettant davantage en relief l’utilit6 d’un
changement. D’abord, les lois actuelles ne
rencontreraient pas les besoins de la soci6t6,
a preuve les nombreuses lois d’exemption
privies rendant superflus les principes 16-
gaux eux-m~mes. Ensuite, le chevauche-
ment entre les lois f6d6rales prohibitives sur
le mariage et les lois provinciales sur l’adop-
tion aurait produit un marasme judiciaire
dans le domaine. Une politique f6d6rale co-
h&ente sur les possibilit6s de mariage entre
personnes li6es par une filiation adoptive
semblerait ainsi n6cessaire. Enfin, l’auteur
examine la raison d’6tre des emp~chements
matrimoniaux et fait quelques suggestions
quant au contenu des changements l6gislatifs
d6sirables.
*Of the Faculty of Law, University of Ottawa.
REVUE DE DROIT DE McGILL
[Vol. 28
Synopsis
Introduction
I.
H.
The Law of Prohibited Degrees: A Chimera?
A. Historical Development
B. Divorce and the Prohibited Degrees
C.
Private Acts of Special Dispensation: A Mockery of the General
Law?
The Crickmay Case
III. The Effect of Adoption on the Prohibited Degrees: Confusion
Compounded
A. Does Provincial Adoption Legislation Purport to Establish Rela-
B.
tionships Within the Prohibited Degrees?
Is Provincial Legislation Inoperative to the Extent that it Pur-
ports to Affect Capacity to Marry?
Conclusion
Appendix
*
*
*
1983]
MARRIAGE PROHIBITIONS
Introduction
The law in Canada regarding the impediment to marriage known as the
“prohibited degrees” is not as settled as might at first appear, even apart from
the difficulties occasioned by its intersection with the more modem laws of
divorce and adoption. Despite Parliament’s exclusive competence in the
matter,I the prohibited degrees of marriage remain either those that existed in
each province at the time it became a part of Canada 2 or those incorporated by
reference in subsequent federal legislation of local application,3 with the
exception of a number of such relationships since removed by federal
legislation.4 Not only is this law antiquated, confused and of uncertain
uniformity across the country, it is also socially outmoded, as witnessed by
the recent spate of applications to Parliament for private acts of exemption. In
demonstrating the need for legislative reform, the state of the general law
must be canvassed first. This investigation includes the narrow but conten-
tious issue of the effect of federal divorce laws on prohibited relationships.
Following an explanation of the scope of the growing practice of private
exemptions from public law, the special problems occasioned by the impinge-
ment of provincial adoption laws upon this federal sphere are considered. In
conclusion, a number of reasons are given to support the suggestion that the
‘See the Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.), s. 91(26). The matter of
prohibiting marriages on the basis of kinship is one of capacity to marry and clearly falls within
Parliament’s exclusive power in relation to “marriage and divorce”. The authorities on this
point are legion. See, e.g., the cases cited infra, notes 4 and 21. See also H. Hahlo, Nullity of
Marriage in Canada With a Sideways Glance at Concubinage and its Legal Consequences
(1979) 5-6.
2See the Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.), s. 129. Because only
Parliament can legislate on this matter, the provinces have been unable to alter the laws existing
at the time of confederation in this respect.
3See, e.g., the Annulment ofMarriages Act (Ontario), R.S.C. 1970, c. A-14. First enacted
in 1930 as the Divorce Act (Ontario), S.C. 1930, c. 14, this federal legislation introduced into
Ontario the law of England concerning divorce and annulment as it was on 15 July 1870. The
Territories and all the western provinces (save British Columbia) also received the general law
of England as of 15 July 1870: An Act further to amend the law respecting the North-West
Territories, 1886, 49 Vict., c. 25, s. 3; The Yukon Territory Act, 1898, 61 Vict., c. 6, s. 9;An
Act respecting the application of certain laws therein mentioned to the Province of Manitoba,
1888, 51 Vict., c. 33, s. 1. Alberta and Saskatchewan were carved out of the Territories and
retained the laws formerly applied within their boundaries, unless and until altered by
competent legislation: see Board v. Board [1919] A.C. 956, (1919)48 D.L.R. 13 (P.C.). The
laws the other provinces carried with them into confederation have remained untouched
regarding prohibited degrees, except with respect to the federal legislation referred to infra,
note 4.
” Beginning in 1882, Parliament enacted a series of statutes effecting the piecemeal removal
of various marriage prohibitions, culminating in what is now the Marriage Act, R.S.C. 1970,
c. M-5. The earlier legislation is reviewed in Crickmay v. Crickmay (1966) 60 D.L.R. (2d)
734, (1966) 58 W.W.R. 577 (B.C.C.A.) [hereinafter cited to D.L.R.].
McGILL LAW JOURNAL
[Vol. 28
recent Australian reform of this area of the law should be followed substan-
tially in Canada. Marriages should be prohibited and void on the ground of
relationship only between biological siblings and persons related lineally
either by consanguinity or adoption. There should be no other prohibitions.
The Law of Prohibited Degrees: A Chimera?
I.
A. Historical Development
It is a commonplace that marriages are prohibited between persons
related within certain degrees, either by consanguinity (blood) or by affinity
(marriage), and the social taboos against incest are usually reinforced by the
criminal law.’ Our Western culture traces its prohibitions against such unions
to Chapter 18 of the Book of Leviticus in the Old Testament. Certain sexual
unions are condemned therein as being incestuous and prohibited, but neither
a formula nor a list inclusive of all relationships within a given degree is
provided. Rather, specific relationships are set out, some involving persons
related by half-blood and some arising by affinity, but none more remote than
the third degree.6 The impediment of prohibited relationship was adopted by
the Christian church and rationalized into degrees of relationship as opposed
‘In Canada, by virtue of s. 150(1) of the Criminal Code, R.S.C. 1970, c. C-34, a person is
guilty of the crime of incest if he or she has sexual intercourse with another person who he or she
knows is “by blood relationship his or her parent, child, brother, sister, grandparent or
grandchild, as the case may be”. Curiously, our criminal law also condemns (but not as incest)
sexual intercourse between a man and his step-daughter, but not between a man (or boy) and his
step-mother. Moreover, the condemned intercourse must be “illicit”, and only the step-father is
guilty of the offence which is indictable and punishable by up to two years in prison. See the
Criminal Code, s. 153. The sociological purposes apparently underlying these prohibitions are
dealt with at length in the Conclusion, infra, because they are more relevant to a consideration
of what the law ought to be than to what it is.
6Uncle-aunt, for instance. The Jews have always read these injunctions strictly and, since it
is not expressly prohibited in Jewish law, a man may marry his niece. It was permitted because
there was no reason to prohibit it. However, owing to the importance attached to the familial
authority of one generation over the next, marriage was forbidden between aunt and nephew
because the husband’s authority over his wife would conflict with the generational authority of
the aunt over her nephew. In contrast, an uncle’s authority over his niece is enlarged by his
marriage to her. The Christian prohibition against marriage of uncle and niece was simply an
extension by analogy of the aunt-nephew prohibition, as though there were no real difference
between them. But if you remove the difference based upon authority, then marriage should not
be prohibited in either case. See Finlay, Farewell to Affinity and the Calculus of Kinship
(1975-77) 5 U. Tasmania L. Rev. 16, 20 and the authorities cited therein. See also Cheni
(otherwise Rodriguez) v. Cheni [1962] 3 All E.R. 873 (P. Div.). Perhaps this illustrates the
danger of interpreting legislation in this area as extending by “necessary intendment” to
relationships not specifically named. Seidler v. Mackie [1929] 4 D.L.R. 478, [1929] 2
W.W.R. 645 (Alta S.C.) involved such a relationship.
1983]
MARRIAGE PROHIBITIONS
to a series of specific prohibitions. The number of degrees within which
marriages were prohibited, and the circumstances giving rise to such rela-
tionships, were greatly expanded until, at one time, the canon law proscribed
marriages of persons related within seven degrees by its method of counting
fourteen by the common law method. Moreover, for a time, prohibited
–
relationships arose not only by blood and marriage, but by sexual relations
outside marriage. Marriages were also once prohibited between persons
spiritually related, so that a godparent could not marry his or her godchild, nor
could either marry blood relatives of the other within the number of degrees
specified. The canon law underwent considerable modification long before
the Reformation, but its prohibitions remained more extensive than those of
Leviticus. 7
For a period of time following the Reformation, the law of England
touching this matter was not entirely clear. However, certain prohibitions
were laid down in the Statutes of Henry VIII. Like those of Leviticus, they
were specific prohibitions; not all relationships of the same degree were
encompassed. 8 In 1563, less than a quarter century after the last of them was
enacted, Archbishop Parker prepared a Table of prohibited degrees, apparent-
ly based on the Statutes of Henry VIII. Although the Table does not speak of
degrees, nor provide a formula, it lists all the possible relationships up to and
including the third degree, arising either by blood or marriage. 9 This Table
was adopted by the Church of England as Canon 99, and it was set forth in the
Book of Common Prayer. Apparently, it was this Table that came to be
applied by the Ecclesiastical Courts of England in annulment actions under
the Church’s jurisdiction and, until the Marriage Act’0 of 1835, such mar-
riages were treated as merely voidable. Lord Lyndhurst’s Act, as it is com-
monly called, provided: “W[hereas] Marriages between Persons within the
prohibited Degrees are voidable only by Sentence of the Ecclesiastical
Court… all Marriages which shall hereafter be celebrated between Persons
within the prohibited Degrees of Consanguinity or Affinity shall be absolutely
null and void to all Intents and Purposes whatsoever.” The evolution of
7 See generally J. Jackson, The Formation and Annulment of Marriage, 2d ed. (1969); H.
Ayrinhac, Marriage Legislation in the New Code of Canon Law (1919) 168 et seq.; W.
Goodsell, A History of Marriage and the Family, rev’d ed. (1934) 174-5.
sAs with the Levitical prohibitions, those of Henry VIII did not expressly prohibit a
marriage between an uncle and niece.
9 It is now well-settled that the prohibitions extend to persons related by half-blood. See most
cases cited in this Part and R. v. The Inhabitants of Brighton (1861) 30 L.J.M.C. (N.S.) 197,
[1861-73] All E.R. Rep. 471 (Q.B.). Historically, however, the extension of the prohibitions
to the half-blood has not been so general. As observed by Professor Finlay, supra, note 6,
marriage with a half-sister was permitted in several cultures and, indeed, Abraham married his
half-sister Sarah.
115 & 6 Wm IV, c. 54 (U.K.).
REVUE DE DROIT DE McGILL
[Vol. 28
English law beyond this point need not be considered for the purposes of
determining the law in Canada pertaining to this impediment.
There has been some uncertainty expressed as to whether the prohibited
degrees prior to Lord Lyndhurst’s Act were those set out in Archbishop
Parker’s Table or were the more restricted list to be culled from the Statutes of
Henry VIII. The weight of opinion seems to be that the prohibited degrees of
consanguinity and affinity referred to in LordLyndhurst’sAct are those set out
in the Table, and that they render marriages void in those provinces in which
thatAct is in force.” However, in Crickmay v. Crickmay, Mr Justice Davey of
the British Columbia Court of Appeal, in what appears to have been an obiter
dictum, interpreted some of these same precedents as holding “that the
degrees of affinity that avoid a marriage under Lord Lyndhurst’s Act, 1835
(U.K.), c. 54, are those specified by the Statutes of Henry VIII, and not those
mentioned in the Scriptures or prescribed by canon law. These statutes are
part of the common law of England, and became part of the law of this
Province”. ”
The view that Archbishop Parker’s Table, rather than the Statutes of
Henry VIII, set forth the law of England in this matter prior to 1853 is
weakened to the extent that the Table is seen to derive its authority from Lord
Lyndhurst’s Act. Thus, the applicable prohibitions are somewhat less certain
in those provinces in which thatAct is not in force and, whatever the degrees
” SeeSeidler v. Mackie, supra, note 6; Dejardin v. Dejardin [1932] 2 W.W.R. 237 (Man.
K.B.). In those cases, it was held thatLordLyndhurst’sAct was in force in these provinces with
the effect that Archbishop Parker’s Table is applicable and marriages so prohibited were void
ipso jure. In Nova Scotia, the law of England seems to have been received prior to Lord
Lyndhurst’sAct, and in Rosenberg-DeLa Marre v. Rosenberg-DeLa Marre (1970) 14 D.L.R.
(3d) 127, 128 (N.S. Ct for divorce), Gillis J. was satisfied that the applicable law is to be found
in the common law of England, that marriages so impeded are void and that the prohibited
degrees “have, for many years, received statutory recognition but, previous to statute, were
expressed in a table set forth by authority in the year 1563″. Some support can be found for the
view that Archbishop Parker’s Table was never the law exproprio vigore, but simply either an
expression of the common law or a filling-in of the missing relationships within the degrees
dealt with, and as necessarily intended by, the Statutes of Henry VIII. See in particular,Seidler
v. Mackie, supra, note 6,480-1. However, if it is the law of England prior to LordLyndhurst’s
Act that applies in Nova Scotia, it is difficult to see how it could be concluded that the
impediment renders such marriages void. Prior to the DivorceAct (Ontario), S.C. 1930, c. 14,
the law regarding this matter in Upper Canada, and then in Ontario, was that of England in
1792. Pre-1930 decisions held that the impediment rendered an Ontario marriage voidable
only. See Gray v. National Trust Co. (1915) 23 D.L.R. 608, (1915) 8 W.W.R. 1061 (Alta
S.C.); Hodgins v. McNeil (1862) 9 Gr. 305 (Ct Ch. U.C.). Indeed, it was held that the Ontario
courts lacked jurisdiction to annul or declare marriages void even at the suit of one party during
the lifetime of the other, regardless of the impediment. SeeMay v. May (1910) 22 O.L.R. 559
(Div. Ct); Vamvakidis v. Kirkoff (1929) 64 O.L.R. 585, [1930] 2 D.L.R. 877 (App. Div.).
12 Crickmay v. Crickmay, supra, note 4, 736. See also the discussion of the Rosenberg-De
La Marre case, ibid.
19831
MARRIAGE PROHIBITIONS
may be, their effect upon the validity of marriage is even less clear in such
provinces. 13
As already noted, the scope and effect of the impediment of relationship
may vary in Canada from province to province, since it depends in part on the
state of the law of England, either at the time such law was received into the
territory of the province, or when it was incorporated subsequently into
provincial law by reference through federal legislation.
Although the matter is not entirely free from doubt, the prevalent opinion
is that the prohibitions contained in Archbishop Parker’s Table, less those
removed by federal legislation, are the applicable prohibitions throughout the
common law jurisdictions of Canada. The effect of the impediment in a
number of provinces remains a matter of serious uncertainty. 4 The law of
Qu6bec evolved differently respecting the prohibited degrees, but it is now
substantially the same as in the rest of Canada, marriages being prohibited in
that Province between persons related within three degrees by consanguinity
or affinity, except as otherwise provided by federal legislation. 5 Parliament
has not enacted general legislation affecting relationships of consanguinity,
but beginning in 1882 it dealt with the collateral degrees of affinity on a
number of occasions, the law as it presently stands having been enacted first
in 1932:16
2. A marriage is not invalid merely because the woman is a sister of a deceased wife of
the man, or a daughter of a sister or brother of a deceased wife of the man.
3. A marriage is not invalid merely because the man is a brother of a deceased husband of
the woman, or a son of a brother or sister of a deceased husband of the woman.’7
Although the Marriage Act ‘ 8 of Canada expressly removes the prohibi-
tions impeding a marriage between a man and his deceased wife’s sister or
3See the discussion of the Rosenberg-De La Marre case, supra, note 11.
” See supra, note 11. The differences between a void and a voidable marriage are dramatic,
and new federal legislation would serve the purposes, inter alia, of putting this uncertainty to
rest and of providing uniformity of treatment throughout Canada.
, See the Civil Code, arts 124-6. Article 127 would appear to prohibit, as well, marriages of
even more remotely related persons, depending upon the rules of particular religions. The Privy
Council, in overruling the courts below, emasculated this provision by holding that it merely
entitles the minister of a particular religion to refuse to solemnize the marriage in question. See
Despatie v. Tremblay [1921] I A.C. 702, (1921) 47 B.R. 305 (P.C.). However, because stare
decisis is, in theory, foreign to the civil law, the courts of Quebec have not uniformly followed
this decision. See Dubois v. Sharpe [1936] 1 D.L.R. 238 (Qu6. S.C.); Coates v. Romanelli
[1936] 1 D.L.R. 244 (Qu6. S.C.).
“6 An Act to amend the Marriage and Divorce Act, S.C. 1932, c. 10. For a full legislative
“The Marriage Act, R.S.C. 1970, c. M-5. There are only three sections, the first of which
history, see supra, note 4.
merely provides the short title.
11R.S.C. 1970, c. M-5.
McGILL LAW JOURNAL
[Vol. 28
niece, and between a woman and her deceased husband’s brother or nephew,
strangely it does not expressly remove the prohibitions against a marriage
between a man and his deceased wife’s aunt and between a woman and her
deceased husband’s uncle. Whether our courts would go so far as to infer the
removal of these particular prohibitions by necessary intendment is a moot
point, and it is one which presents us with yet another uncertainty in an area of
law that could, and should, be quite simple. ,9
B.
Divorce and the Prohibited Degrees
One of the most confused areas of the law respecting the impediment of
relationship is the effect of divorce on affinity. The common law prohibitions
– whether those of Archbishop Parker or those of Henry VIII – make no
reference to the relatives of a deceased spouse, or of a divorced spouse.
Nowhere was it written that a man cannot marry his “deceased wife’s sister”;
rather, it was simply said that he cannot marry his “wife’s sister”. However,
marriage being monogamous at common law, it is obvious that neither spouse
can marry anyone else at all, let alone a blood relative of the other, during the
subsistence of their marriage. Marriage can be terminated only by the death of
one of them, or by divorce. Consequently, if the impediment of affinity is to
have any meaning, it must prohibit the marriage of either spouse to a blood
relative of the other, within the degrees specified,following the termination of
their marriage. Although, primafacie at least, it should not matter whether
the marriage is terminated by divorce rather than by death, the first question
that arises is whether, for the purpose of determining capacity to marry,
prohibitions based upon affinity survive the dissolution of marriage by di-
vorce just as they survive the dissolution of marriage by the death of a spouse.
While at common law one could not marry one’s deceased spouse’s kin, was
there ever any prohibition against marrying one’s divorced spouse’s kin? If
the answer is that such marriages were prohibited regardless of what termin-
ated the prior marriage, death or divorce, a second question arises: What is the
“1See In re Phillips, Charter v. Ferguson [1919] 1 Ch. 128, (1918) 88 L.J. Ch. 27. In that
case, a marriage between a man and his deceased wife’s niece was declared void. The Court
rejected the argument that the Deceased Wife’s Sister’s Marriage Act, 1907, 7 Edw. 7, c. 47
(U.K.), expressly removing that prohibition, extended by necessary intendment to persons
more remotely related. The Appellate Court in the Crickmay case, supra, note 4, also seems to
have taken the view that only those relationships named expressly are prohibited. However,
Seidler v. Mackie, supra, note 6, appears to indicate that the courts can fill in the gaps left by
Parliamentary oversight. In Ontario, the MarriageAct, R.S.O. 1980, c. 256, like that of many
provinces, contains a form (Form 1) setting out the prohibited degrees. The Ontario Form no
longer lists a wife’s sister, wife’s niece, husband’s brother, or husband’s uncle. However, it
still lists a wife’s aunt and husband’s uncle. See also the discussion, supra, note 11 and infra,
note 51.
1983]
MARRIAGE PROHIBITIONS
effect upon a divorc6e’s capacity to marry of the legislation which now
permits marriages between two persons one of whom was related within the
prohibited degrees to the deceased spouse of the other? These questions came
before Canadian courts in Teagle v. Teagle,” Re Schepull and Bekeschus and
The Provincial Secretary,2 Crickmay v. Crickmay,’ Power v. Power,’ and
Christians (Wiltshire) v. Hill 24 . Prior to the decision of the Court of Appeal of
British Columbia in the Crickmay case, the learned Judges who dealt with the
problem seemed to assume that, following the termination of a marriage, the
impediment of “affinity” precluded certain marriages regardless of the termi-
nating event, whether death or divorce. It was to the second question that
these Judges addressed themselves, and with differing results.
In Teagle v. Teagle,l Mr Justice Whittacker, of the Supreme Court of
British Columbia, accepted the proposition that, apart from the statutory
exceptions that have been made since the relevant law of England was
introduced into British Columbia, a marriage between a woman and her
divorced husband’s brother is as much prohibited as it would be had her
marriage been dissolved by her husband’s death instead. He went on to
conclude that the federal legislation which creates an exception to this pro-
hibition, permitting a marriage even though “the man is a brother of a
deceased husband of the woman”, does not permit a marriage where the man
is a brother of the woman’s divorced husband who is still living.
A different view was taken in the case of Re Schepull,26 in which Mr
Justice Spence concluded that a marriage between a man and his divorced
wife’s sister was not invalid. Section 57 of the English Divorce and Matrimo-
nial Causes Act of 1857 was then applicable in respect of divorces obtained in
Ontario, and it provided that the parties to a divorce could remarry, “as if the
prior [m]arriage had been dissolved by [d]eath” 7 According to Spence J.,
when that provision is read with the federal legislation allowing a man to
marry his deceased wife’s sister, it follows that he may marry his divorced
wife’s sister as well. That reasoning, which appears to have been borrowed
without acknowledgement from Professor G. Kennedy, 8 was rejected in the
-[1952] 3 D.L.R. 843, (1952) 6 W.W.R. (N.S.) 327 (B.C.S.C.) [hereinafter cited to
D.L.R.].
21 [1954] O.R. 67, [1954] 2 D.L.R. 5 (H. Ct).
2Attrial: (1966) 57 D.L.R. (2d) 159, (1966) 55 W.W.R. 564 (B.C.S.C.) [hereinafter cited
to D.L.R.], and on appeal: supra, note 4.
“(1974) 5 O.R. (2d) 537, (1974) 51 D.L.R. (3d) 21 (H.C.).
24(1981) 22 R.F.L. (2d) 299, (1981) 123 D.L.R. (3d) 471 (Alta Q.B.).
“‘Supra, note 20, 845-7.
6Supra, note 21.
720 & 21 Vict., c. 85 (U.K.).
“Kennedy, case comment, (1952) 30 Can. Bar Rev. 508.
REVUE DE DROIT DE McGILL
[Vol. 28
Crickmay case.2 9 Tyrwhitt-Drake J., sitting as a Local Judge of the Supreme
Court of British Columbia, pointed out the fallacy of this literal and arithmetic
approach: once divorced, a couple could not marry each other, and the great
many such marriages that have occurred would be void. He went on to say that
the expression “‘as if the prior marriage had been dissolved by death’ … [is]
an illustration only, and not a phrase importing any effect in law”.3″ It is
unnecessary to elaborate upon this justifiable criticism ofRe Schepull because
the basis of that decision would appear to have been removed by the Divorce
Act, 1968, which repealed the previous law and enacted simply that, follow-
ing a divorce, “either party to the former marriage may marry again”.3
However, before leaving the Re Schepull argument, it may be noted that it
was not given favourable treatment by the Court of Appeal in the Crickmay
case, although that Court happened to reach the same conclusion as did Mr
Justice Spence. 32
C.
The Crickmay Case
The only decision on this question at the appeal level is that of the British
Columbia Court of Appeal in Crickmay v. Crickmay,33 wherein the contested
marriage was between a woman and her divorced husband’s brother, and it
was held unanimously that such a marriage is not unlawful in that province.
Davey and Norris JJ.A. were of the view that “the rule prohibiting a man from
marrying his brother’s wife did not include the brother’s divorced wife”.-
Such a marriage was never prohibited at common law and, because the federal
legislation does not prohibit it, it remains permissible. Although McFarlane
J.A. balked at that conclusion, and the reasoning underlying it, he was of the
view that the prohibition was repealed by federal legislation, and the other
two Appellate Justices also gave as their alternative reason that “if the rule did
include a divorced wife, it has been repealed by legislation of the Parliament
of Canada”.35
The reasoning underlying the first ground upon which Davey and Norris
JJ.A. rest their decision seems so tenuous that many may join Mr Justice
McFarlane in remaining unconvinced by it. The majority clearly felt that any
9Supra, note 22.
Ibid., 162.
3 R.S.C. 1970, c. D-8, s. 16. But see Christians (Wiltshire) v. Hill, supra, note 24, in which
Prowse J. of the Alberta Queen’s Bench suggests that this enactment does not affect the
reasoning in Re Schepull, supra, note 21. It is submitted that he is wrong in this respect.
32Supra, note 4, 741.
33Ibid.
34lbid., 735 and 746.
351bid., 735 and 746-7.
1983]
MARRIAGE PROHIBITIONS
other decision would be “contrary to prevailing social and ethical opinion”,
and that attitude would appear to explain much. They wished to ensure that
this particular rule would be “in harmony with the enlightened common sense
of the nation”, which, of course, corresponds with their own common sense,
yet they did not want to rely too heavily upon that same common sense for fear
of falling into the error of “judicial legislation and a usurpation of the
authority of Parliament”. 36 When deductive logic and “common sense” seem
to dictate opposing conclusions, it must indeed be a difficult task to adopt and
support the common sense conclusion on the basis of deductive logic.
Justices Davey and Norris felt that there never was any prohibition
against a woman marrying her divorced husband’s brother, even though there
was a prohibition against a woman marrying her husband’s brother. Because
she could not validly marry a second man during the course of her prior
marriage, it is conceded by these Judges that the prohibition at least prevented
her marrying her deceased husband’s brother. Although the language ex-
pressing the prohibition does not mention either “deceased” or “divorced”
husband’s brother, and even though it must be taken to refer to a brother of a
previous husband of the woman, it cannot be taken to include “divorced”.
Why not? Because these Judges have the notion that, somehow, it is proper to
speak of a widow as the wife of the deceased,37 but it is improper to speak of a
divorc6e as the wife of her divorced husband. She is the “former” wife. If
there is. any substance to that distinction, it is awfully fine; it is probably
specious. Although the point is not made in the Crickmay case, it is obvious
that following a divorce, which can only be pronounced during their joint
lives, the former spouses are no longer husband and wife. Thus, short of their
remarriage, neither can ever become the deceased spouse of the other.
However, unlike a decree of nullity, the prior existence of the marriage is not
denied by a decree of divorce, and many legal incidents continue to flow from
that marriage, just as they continue to flow from a marriage terminated by
death. In the final analysis, whether a divorced couple continue to be related
by affinity to each other’s blood relatives, or whether the decree severs those
relationships as well as the bond of marriage, would seem to be irrelevant. If it
is true that a divorced man and his former wife’s sister are no longer affines, it
would seem reasonable to suppose that they would no longer be related had
the marriage been terminated by death instead. If, on the other hand, that
relationship survives death, why should it be held to have terminated on
divorce? Because of some arbitrary view of what is correct English usage?
-Ibid., 735.
37 Davey J.A. ventured the view that it is “usual, and I think quite proper, after death to speak
of the spouses as the husband or wife of the other, because that was the condition until death
intervened”, ibid., 735. He did not go on to enlighten his readers as to the proprieties when the
spouse has been widowed several times.
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Death dissolves marriage and frees the survivor from bonds preventing
remarriage. It is no less effective for this purpose than is divorce, which, after
all, was designed in imitation of death in that respect.
It is submitted that what is prohibited is the marriage of two persons, one
of whom was formerly married to a blood relative of the other. The purpose of
the prohibited degrees of affinity was to promote charity and the multiplica-
tion of friendships, and to discourage undesirable conduct between persons
while related through marriage by precluding the possibility of their marrying
each other in the future when they might otherwise become free to do so.
Clearly, such a purpose would be frustrated by allowing the parties to marry
following divorce, but not following death. Indeed, while it may be the
currently predominant view to see no reason why a woman should not be
permitted to marry her divorced husband’s brother if she is allowed to marry
her deceased husband’s brother, for a considerable time in England, at least, it
was thought to be socially undesirable to allow persons so related to marry
each other during the lifetime of the former spouse even though they could
marry following that spouse’s death.38
It is suggested that the other reason given by the majority in Crickmay to
support this particular conclusion is not very persuasive either. The Parlia-
ment of Canada, in granting divorces by private act, has authorized the
petitioner to “at any time hereafter marry any other [person] whom [he or she]
might have lawfully married in case the marriage had not been solemnized”. It
is “inconceivable that Parliament would by private Acts… allow divorced
spouses to marry persons they were forbidden to marry by general law”.39 Of
course, that Parliament would do the strangest things is perfectly conceivable.
Indeed, in enacting private acts of dispensation so as to allow the marriage of
persons “forbidden to marry by general law”, Parliament appears to have
done precisely what the Justices considered inconceivable. Be that as it may,
this argument seems to lend to private acts of divorce the effect of a decree of
nullity as far as capacity to marry is concerned. A literal interpretation of the
wording quoted would lead to the rather startling proposition that a man could
marry his step-daughter, provided her mother did not die before he could
divorce her. Sexual relations between a man and his step-daughter are suffi-
ciently frowned upon to make intercourse between them a crime in certain
circumstances and to prohibit the marriage of such persons, at least where the
mSee the Deceased Wife’s Sister’s Marriage Act, 1907, 7 Edw. 7, c. 47 (U.K.). The Statute
included a proviso, in s. 3(2), that “it shall not be lawful for a man to marry the sister of his
divorced wife, or of his wife by whom he has been divorced, during the lifetime of such wife”.
31Supra, note 4, 737-8.
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MARRIAGE PROHIBITIONS
step-mother dies before a decree absolute of divorce is granted.’ It will be
recalled that s. 57 of the English Divorce and Matrimonial Causes Act 41 of
1857 was incorporated into the laws of several Canadian jurisdictions by
Parliament. That section permitted the subsequent marriage of each spouse as
though their marriage had been dissolved by the death of the other. Was it the
intention to prohibit a divorced couple from re-uniting in marital bliss? Are
the many such marriages that have occurred void? Did not Parliament, by
adopting s. 57, provide a separate slate of potential new spouses for the
judicially-divorced than for those divorced by private act of Parliament? If the
formula used in these private acts is to be interpreted and applied literally,
then so too must the formula used in s. 57 of the Act of 1857. Either it is
conceivable that Parliament would allow persons divorced by private acts to
marry those whom they could not marry following a dissolution of their prior
marriages by death or judicial decree, or else that form of words is to be
interpreted sensibly as Tyrwhitt-Drake J. interpreted s. 57 of the original
English divorce statute: this kind of phrase “is an illustration only, and not a
phrase importing any effect in law… it merely gives emphasis to the inten-
tion.., to declare the capacity of divorced persons to marry again”.42
The second ground upon which the Justices in Crickmay concluded that a
woman may marry her divorced husband’s brother, with which McFarlane
J.A. agreed, was that if the rule prohibiting a man from marrying his brother’s
wife did include a divorced wife, it has been repealed to that extent by
legislation of the Parliament of Canada. The reasoning involved seems to
come to this: the repeal of a rule repeals whatever is included in it; assuming
that the rule against marrying a brother’s wife included a divorced brother’s
wife, the repeal of the rule repealed the included prohibition, and a man may
now marry his divorced brother’s wife. The fact that ss 2 and 3 of the
Marriage Act43 are not in the form of repealing statutes and refer to “de-
ceased” and do not mention “divorced” spouses is avoided in the following
way. There was a Canadian provision enacted in 1882 stating expressly that
“[a]ll laws prohibiting marriage between a man and the sister of his deceased
wife are hereby repealed … as if such laws had never existed”.’ If the overall
rule was that a man cannot marry his “wife’s sister”, then this would seem to
include both his deceased wife’s sister and his divorced wife’s sister; had that
40There would seem to have been no doubt that, at common law, a man was not permitted to
marry his wife’s daughter, nor a woman her husband’s son, nor do the federal exceptions that
apply upon the death of a spouse include these relationships. But if the argument in the
Crickmnay case, ibid., is sound, then there has never been any prohibition against such
marriages following divorce.
4,20 & 21 Vict., c. 85 (U.K.).
42Crickmay, at trial, supra, note 22, 162.
43R.S.C. 1970, c. M-5.
“An Act concerning Marriage with a Deceased Wife’s Sister, 45 Vict., c. 42, s. 1.
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rule been repealed expressly, the argument made by Davey and Norris JJ.A.
might be more forceful. But only one aspect of the overall rule was repealed.
Nevertheless, the Court of Appeal took the view that the expressly repealed
aspect (deceased wife’s sister) was primary, and that its repeal carried with it
the secondary aspect (divorced wife’s sister) as well. Parliament would not
repeal the primary aspect of the rule and leave the secondary aspect intact.45
Accordingly, the whole rule, prohibiting a man from marrying either his
divorced or his deceased wife’s sister, was by necessary intendment repealed.
Then, in 1890, Parliament similarly repealed all laws prohibiting marriage
between a man and the daughter of his deceased wife’s sister.46 Section 2 of
the subsequent Marriage Act47 does not reinstate the repealed rules.
It is clear that, if the reasoning of the British Columbia Court of Appeal
on this point is correct thus far, it still leaves certain questions unanswered.
The legislation of 1882 and 1890 did not repeal any of the prohibitions dealt
with in s. 3 of the later enactment such as deceased husband’s brother and
deceased husband’s nephew, and the Crickmay case involved a marriage
between a woman and her husband’s brother, not between a man and his
wife’s sister. It was held that s. 2 of the Marriage Act 48 was meant to continue
the effect of the earlierActs, and that s. 3 had an identity of purpose and must
be treated similarly. Thus, by a rather venturesome exercise of statutory
interpretation, historical speculation and current common sense “harmoniz-
ing”, the conclusion was reached that, even if at one time a man could not
marry his divorced wife’s sister or niece, nor could a woman marry her
divorced husband’s brother or nephew, they are now permitted to do so. 4
1
The effect of divorce upon the prohibited degrees of marriage arose in
two later cases involving the scope and validity of certain forms annexed to
provincial marriage legislation. In Power v. Power,50 it was decided that a
woman could not marry her divorced husband’s brother because “husband’s
brother” was one of the prohibited relationships set out in Form 10 annexed to
5It may be noted however, that the Parliament of England did not consider the relationship
between a man and his divorced wife less significant because it maintained expressly that
allegedly “secondary” prohibition when it repealed the prohibition between a man and his
deceased wife’s sister.
46 See An Act to amendAn Act concerning Marriage with a Deceased Wife’s Sister, 53 Vict.,
c. 36.
47R.S.C. 1970, c. M-5. See also supra, note 16 and accompanying text.
“1R.S.C. 1970, c. M-5.
49Crickmay, supra, note 4.
-‘Supra, note 23.
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MARRIAGE PROHIBITIONS
the Marriage Act 5’ of Ontario. The decision in the Power case may be correct
but, because the earlier cases were not considered, it appears to have been
rendered per incuriam. In Christians (Wiltshire) v. Hill52 it was held that,
such matters being beyond provincial jurisdiction, Form 5 of The Marriage
Act53 of Alberta could not determine capacity to marry. After dealing very
cursorily with Re Schepull and Bekeschus I and Crickmay v. Crickmay,55
Prowse J. said: “The reasoning in both decisions was that when Parliament
enacted the provisions which are now ss. 2 and 3 of the Marriage Act the
combined effect of those amendments with s. 57 of the Divorce and Matrimo-
nial Causes Act, 1857 (20 & 21 Vict.), c. 85 (which equated the effect of
divorce to that resulting from the death of a spouse), ended any prohibition
(which may have existed) against a man marrying the sister of his divorced
wife and a woman marrying the brother of her divorced husband.” 56 With
respect, this is simply not so. The Court of Appeal in Crickmay did not
indicate any disagreement with the trial judge’s cogent refutation of the
reasoning in Re Schepull and Bekeschus, and their reasons for reversing his
decision had nothing to do with s. 57 of the Divorce and Matrimonial Causes
Act 57 of 1857.
Although the problem does not appear to have come before any other
Canadian courts, it is now before Parliament in the form of an application for a
private act of exemption from Qu6bec domiciliaries, one of whom is divorced
from the sibling of the other. The effect of divorce on the prohibitions is
uncertain and, due to its distinct evolution in the various provinces, the law
may be different in jurisdictions where it has yet to be judicially considered.
-1R.S.O. 1970, c. 261. But see now Form 1 annexed to the Marriage Act, R.S.O. 1980, c.
256. This new Form lists “Degrees of affinity and consanguinity, which under the statutes in
that behalf, bar the lawful solemnization of marriage”. The list no longer includes any mention
of the following relationships: wife’s sister, brother’s wife, wife’s brother’s daughter, wife’s
sister’s daughter, husband’s brother, sister’s husband, husband’s brother’s son, and husband’s
sister’s son. The assumption seems to be that divorce, as well as death, removes the prohibition
and so the relationships need not be mentioned at all. If this were based on the Ontario Re
Schepull case, supra, note 21, it is to be noted that the reasons for that decision are no longer
valid, if they ever were. If it were based on the British Columbia Crickmay case, supra, note 4,
then the removal of these relationships corresponds with the second ground of that decision.
However, the Form continues to include relationships indicated by the first ground of the
Crickmay case never to have been prohibited, i.e., all relationships severed by divorce, such as
divorced wife’s mother, divorced wife’s daughter, and so on. In any case, it is not the function
of the Ontario Legislature to interpret the law, particularly in a matter beyond its legislative
competence.
I’Supra, note 24.
53R.S.A. 1970, c. 226, s. 13 and Alta Reg. 173/78, Form 5.
‘4Supra, note 21.
55Supra, note 4.
-6Supra, note 24, 303.
5720 & 21 Vict., c. 85 (U.K.).
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Indeed, the pre-confederation law of Qudbec in this matter was derived from
the law of France, not from the common law of England, and the Crickmay
reasoning would not seem applicable there. What is required, clearly, is
general legislation resolving the matter, and not a series of private acts which
lack any consistent theoretical justification.
H.
Private Acts of Special Dispensation: A Mockery of the General
Law?
Unlike the canon law, which provides for the granting of dispensations
from certain prohibitions in accordance with specific criteria, the general law
of Canada permits of no such exception. 8 Consequently, regardless of any
special or compassionate circumstances that might be involved, those Cana-
dians whose marriages are impeded would seem to be doomed to frustration,
legal if not physical. However, such is not the case. It is open to Parliament to
enact private legislation in relation to matters within its competence, and
some who have found the course of true love stymied by a particular prohibi-
tion have had the prescience to seek the assistance of a Senator or of their local
Member of Parliament in the presentation of an application for a private bill of
exemption from the general law.
At one time, the dissolution of marriage by private act of Parliament was
a frequent occurrence in Canada. 9 Such private acts were the fruit of political
expediency occasioned by the presence in certain provinces of large blocks of
voters opposed to divorce. The justification for such acts can be distinguished
sharply from that which applies to private legislation granting particular
exemptions from the general prohibitions of marriage.
Almost from the beginning of confederation, the remedy of divorce was
available in most jurisdictions in Canada in a court action based on specific
grounds and subject to known rules and safeguards. Parliamentary divorce
was merely a device used to provide a forum for citizens domiciled in the few
provinces whose courts lacked jurisdiction to dissolve marriages. A special
Senate Committee conducted hearings regarding divorce applications and, in
substance if not in form, the same law to which all other Canadians had access
was applied.
58It is interesting to note that a regime of judicial dispensation from the prohibited degrees
existed in Australia for a brief time. This is discussed in the Conclusion, infra. See also The
Marriage Act 1942, Tasm. Stat. 1826-1959, Vol. 3, ss 19(1) & (2) and Schedule 4; The
Marriage Act 1955, N.Z. Rep. Stat. 1908-57, Vol. 9, s. 15(2).
59Such proceedings ceased with the Divorce Act, R.S.C. 1970, c. D-8, enacted in 1968.
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MARRIAGE PROHIBITIONS
In contrast, the growing practice of enacting private exemptions from
general prohibitions is obviously not meant to provide disadvantaged citizens
of certain regions with rights and remedies enjoyed by Canadians generally.
Its purpose is quite the contrary. Although no secret is made of the practice, it
is one which is generally unknown and seldom envisioned by lawyers. 6
0
Moreover, no criteria have been established or published either to guide
Parliament in dealing with specific cases, or to assist potential applicants in
measuring their chances of success. 6′
The first private act of this kind in Canada was enacted in 1975 in order
“to provide an exception from the general law relating to marriage in the case
of Richard Fritz and Marianne Strass”. 62 Following a number of recitals, Her
Majesty, by and with the advice and consent of the Senate and House of
Commons of Canada, enacted as follows: “Notwithstanding any law prevail-
ing in the province of Quebec respecting the degrees of consanguinity or
affinity within which persons may not marry, Richard Fritz and Marianne
Strass, both of the City of LaSalle, in the Province of Quebec, may marry
each other.” The recitals indicated that the parties are uncle and niece by
half-blood; that they were thirty-two and twenty-five years of age, respective-
ly; that under the law applicable in Qu6bec the parties “will be unable to marry
each other unless the Parliament of Canada enacts that they may”; that
Parliament has exclusive legislative authority in relation to the matter; and,
finally, that the Petitioners had “received medical advice that their degree of
consanguinity will not impair their ability to have normal healthy children”. 63
In its 1977-78 Session, three more bills providing for exceptions to the
prohibited degrees came before Parliament. Two of these bills concerned an
60On 5 July 1982, the Canadian Broadcasting Corporation aired a special report on such
private acts on its news program, The National. Two couples whose marriages had been
enabled by private acts of exemption were interviewed, as were their lawyers. The lawyers
indicated that they had been unaware of this procedure, and that their clients had stumbled upon
it for themselves. How many similarly-situated people have failed to stumble upon this avenue
of relief?
61 It may be noted, however, that Mr Raymond L. du Plessis, Q.C., Law Clerk and Legal
Counsel to the Senate, has prepared a document entitled Procedure on Private Bills. The
document relates to private bills of all kinds and, with Mr du Plessis’ kind permission, a copy of
it appears as an Appendix, infra.
6S.C. 1974-75-76, c. 113. This Act began its life as Bill C-1001, An Act to provide an
exception from the general law relating to marriage in the case ofRichard Fritz and Marianne
Strass, on 21 July 1975. See [1974-75-76] 2 Debates of the Senate, 1st Sess., 30th Parl., 1233.
‘3An Act to provide an exception from the public general law relating to marriage in the case
of Richard Fritz and Marianne Strass, S.C. 1974-75-76, c. 113 [emphasis added]. The use of
the word “degree” may indicate a concern not with the problems peculiar to this particular
couple, but with the possibility of impairment generally associated with such relationships.
64Bill S-5, An Act to provide an exception from the public general law relating to marriage
in the case of James Richard Borden andJudy Ann Borden, granted Royal assent on 22 March
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[Vol. 28
uncle and his niece by the whole-blood. They were in form substantially the
same as their 1975 predecessor, except that they contained no recital as to
medical advice. One couple was from Saskatchewan, the other from Quebec.
They eventually obtained private acts and were married. The third of these
bills concerned a Qudbec couple related as brother and sister by reason of the
adoption of one of them by the natural parents of the other. It will be discussed
in detail below.
Not yet in bill form are three more cases of which notices of application
to Parliament for private bills have been published. Two of these involve an
uncle and his niece, one couple living in Ontario, and the other living in
Qudbec. The other case is from Quebec and involves parties related by
affinity through a marriage since terminated by divorce. 5 Although they have
not reached the stage of formal notice of application, other petitions are being
considered, including one from Saskatchewan involving a man and his
brother’s adopted daughter, and another involving a divorced spouse’s
sibling.6
The granting of private exemptions from public law would seem to be
inherently dangerous in that it is arbitrary and may undermine respect for the
law. However, the making of exceptions for persons whose circumstances
reveal nothing to distinguish their cases from those of any similarly related
couple in Canada is totally inconsistent with any semblance of social purpose
in the general law on the prohibited degrees of marriage. The only apparent
point of concern in Parliament’s deliberation on these bills was eugenics.
Assurance was sought that any children that might be born would be un-
affected by the consanguinity of their parents. 7 Of course, this limited
1978. See [1977-78] Debates of the Senate, 3d Sess., 30th Pan., 511; Bill S-6, An Act to
provide an exception from the public general law relating to marriage in the case ofFrangois
Eugene Arthur Waddell and Marie Anne Marguerite Benoit, granted Royal assent on 22 March
1978. See [1977-78] Debates of the Senate, 3d Sess., 30th Parl., 511; Bill S-7, An Act to
provide an exception from the public general law relating to marriage in the case of Lucien
Roch Joseph Morin and Marie Rose Hilene Morin, withdrawn from Senate consideration, 22
March 1978. See [1977-78] Debates of the Senate, 3d Sess., 30th Parl., 506.
6This petition involves the question of the effect of divorce on the prohibited degrees. If the
Crickmay case, supra, note 4, is correct and applicable in Qudbec, the private act is unneces-
sary.
61As the inquiries in question have not been made public, information about them is
unavailable.
6Having received that assurance, the record shows that those parliamentarians who were
active in the “affair” almost assumed the role of Cupid. For instance, the Senate sponsor of Bill
C-1001, Senator Denis, confessed that “even though some of us are old we know what it means
for a husband and wife to spend a lifetime together, according to the law and the religious
principles they believe in”, [1974-75-76] 2 Debates of the Senate, Ist Sess., 30th Parl., 1234.
At various stages of the Bill’s progress the couple were congratulated and offered best wishes.
When, on 14 February 1978, Bills S-5 and S-6 came before the Standing Senate Committee on
1983]
MARRIAGE PROHIBITIONS
concern overlooks the fact that the general law does not prohibit an uncle and
niece from having children. It merely prohibits them from having legitimate
children. More importantly, since the medical opinion on the point is based
primarily on the degree of relationship rather than on any physical attributes
peculiar to the parties, the risk is virtually the same for all similarly related
couples; such risk can hardly be used as a criterion for treating some cases
differently from the rest. It would appear, then, that the only justification for
private legislation is the perception that the general law prohibiting marriages
within the degrees in question is no longer socially acceptable and ought to be
changed. In fact, the debate on the various bills reveals that this was the
prevailing sentiment, as the following exchange indicates:
Senator Flynn: … Senator Neiman, myself and others have expressed the view that
something should be done by Parliament to provide for the settlement of such cases. We
should not be called upon to pass a special law in every special case …. I would ask the
government leader to discuss with his colleagues in government whether there should not
be an amendment, not to the Civil Code of Quebec but to all laws applicable across Canada
with respect to this problem, so that it can be dealt with in a more general way in the future.
Senator Perrault: Honourable senators, I give an undertaking that the proposal of the
Leader of the Opposition’s [sic] will be brought to the attention of the appropriate
government people.
Senator Asselin: When do you expect an answer?
Senator Perrault: As the honourable senator is aware, this government attempts to
work with dispatch on all matters affecting the public interest.
Senator Flynn: The Leader of the Government says that with tongue in cheek.0
When, some two and-a-half years later, three more private bills came
before the Senate, the same misgivings were voiced, and Senator Perrault
removed tongue from cheek in order to say the following:
Legal and Constitutional Affairs, the Chairman observed that “[t]his being Valentine’s Day,
we have two bills relating to marriage”. (Minutes of Proceedings, 14 February 1978, 3d Sess.,
30th Parl., Issue No. 1, 6). When these Bills were before the Standing Committee on
Miscellaneous Private Bills and Standing Orders, the sponsor of Bill S-6 in the House of
Commons, Mr Campbell, said that the Bill had “been passed by the Senate. The sooner we can
dispense, the sooner this beautiful couple will be allowed to marry.” The Chairman’s conclud-
ing remarks were, “[s]o, gentlemen, I want to thank you for allowing this morning four lovers
in Canada to make love legally”. (House of Commons, Standing Committee on Miscellaneous
Private Bills and Standing Orders, Minutes of Proceedings and Evidence, 2 March 1978, 3d
Sess., 30th Parl., Issue No. 2, 10). Other such remarks can be found throughout the record.
While there is nothing amiss in these good-natured comments, they do reveal the pervasive
concern for the individual interests involved. Parliament was content to repress consideration
of the social interests implicit in such matters in order to enact private exemptions apparently
even at the risk that they might prove to be contrary to public policy –
curiously, it is to
repressions that the Oedipus complex is said to lead.
63In fact, in some jurisdictions, the prohibitions do not even have that effect, illegitimacy
virtually having been abolished. See, e.g., Children’s Law Reform Act, R.S.O. 1980, c. 68, s.
1(4).
0[1974-75-76] 2 Debates of the Senate, Ist Sess., 30th Parl., 1251-2.
McGILL LAW JOURNAL
[Vol. 28
Senator Perrault: Honourable senators, the last time the subject of exceptions from
the general law relating to marriage was discussed in the Senate, the Honourable Senator
Asselin asked if the federal government had any intention of introducing uniform marriage
legislation in Canada which, presumably, would make it unnecessary for Parliament to
pass laws of exception in individual cases, such as in the Fritz-Strass case to which Senator
Bourget referred a moment ago. Senator Asselin asked this question during the debate on
the motion for third reading of the Fritz-Strass bill on July 23, 1975. At that time the
Leader of the Opposition also expressed support for the idea of providing uniform
marriage legislation in order that this problem could be dealt with, as he said, “in a more
general way in the future” so that Parliament would not be called upon to pass a special law
in every case. This appeared to many of us to be an eminently sensible idea. He mentioned
that both he and Senator Neiman had in committee –
and, again, I quote Senator Flynn –
“questioned the principle of introducing a law of exception in this particular field.” Then
later the sponsor of the bill, Senator Denis, expressed general support for that position and
said:
I agree that the federal Parliament should carry out a deeper study in order to know
whether there is any possibility of amendments.
In any event, he noted an assurance that I gave at that time, as reported on page 1252
of Debates of the Senate, when I said:
Honourable senators, I give an undertaking that the proposal of the Leader of the
Opposition’s [sic] will be brought to the attention of the appropriate government people.
After that discussion with respect to the Fritz-Strass bill I made verbal representa-
tions to the Department of Justice about the matter. Shortly thereafter, the Senate
adjourned for a summer recess, but I can now read to honourable senators a letter which I
have just received from the Honourable the Minister of Justice. It was prompted by a letter
which I wrote to him a few days ago in anticipation of the introduction in this chamber of
three bills of a similar type to the Fritz-Strass bill of 1975.
The letter to my colleague expressed again the Senate’s concern in this matter. The
reply from the Minister of Justice and Attorney General of Canada, dated February 7,
1978, reads as follows:
In response to your letter of February 2nd, concerning three private (marriage) bills, I
have noted your concerns and asked my officials to look into the feasibility of preparing
legislative proposals that would allow for settlement of affinity and consanguinity cases in
a general way so that Parliament would not be called upon to pass a special law in each
case.
I hope some progress can be made in the direction of reform. As I noted earlier, the
minister’s views are in response to suggestions which have come from various members of
this chamber, including the Leader of the Opposition. 0
It will next be seen that the uncertainties of our law in the area of
prohibited degrees are increased greatly by the impact of provincial adoption
laws. Having regard to the anomaly-infested state of this law and to the highly
questionable practice of enacting private exemptions, it is clearly time for the
long-awaited reform.
71[1977-78] Debates of the Senate, 3d Sess., 30th Pan., 305-6.
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MARRIAGE PROHIBITIONS
M. The Effect of Adoption on the Prohibited Degrees: Confusion
Compounded
The case of Re Broddy and Director of Vital Statistics 71 which appears to
be a case of first impression in Canada, concerned an application to compel
the issuance of a marriage licence refused to the applicants on the ground that,
7(1981) 130 D.L.R. (3d) 758 (Alta Q.B.) [hereinafterReBroddy]. The judgment of Dea J.,
which was under appeal when this paper was accepted for publication, has now been reversed
in an as yet unreported decision of the Alberta Court of Appeal delivered by Kerans J.A.,
McClung and Belzil JJ.A. concurring. See Broddy v. Director of Vital Statistics (Edmonton
152-78) 4 November 1982. While its decision seems sound, the reasoning of the Court of
Appeal is rather vague in places and serves to add to the confusion in this area of the law, thus
making legislative reform all the more desirable. The Court begins, at 2, with the proposition
that “[A] province can, as an aspect of adoption, prohibit marriage among those affected by the
adoptive relationship”. However, “[wihile a provincial attempt to create new law might be
materially good it can be formally bad”. See discussion at 13. Assuming an intention to prohibit
such marriages, the Province of Alberta evidently went about it in the wrong way, because, as
the Court states at 12-3, “it cannot do so by deeming them to be in a prohibited category in a
federal law. The distinction is a close one, but it must nevertheless be recognized.” [emphasis
added]. In support of this, Kerans J.A. repeated, at 12, this sentence from the judgment of
Dickson J. in R. v. Sutherland [1980] 2 S.C.R. 451, 456, (1980) 113 D.L.R. (3d) 374: “The
purpose of any ‘deeming’ clause is to impose a meaning, to cause something to be taken to be
different from that which it might have been in the absence of the clause.” The legislation under
consideration did not use any form of the verb “to deem”, and we are left to assume that the
Court treated the words “as if” in s. 57(1) of the Child Welfare Act of Alberta, R.S.A. 1980, c.
C-8, as equivalent phraseology. Kerans J.A. then went on, at 12, as follows: “And, in Canada,
one level of government cannot impose its choice of meaning on a statute which was enacted by
the other level, because this would amount to an amendment to, and therefore an express
contradiction of, that statute.” In the same vein, Kerans J.A., at 13-4, says that: “Provinces do
not define words in federal law unless that is the federal legislative intention. For example, s.
118(c) C.C.C. makes it a crime to obstruct those ‘making a lawful distress or seizure.’ One
would look to provincial law to decide whether there was a lawful distress or not. But this is
because Parliament intended to treat provincial law as received fact for the purposes of the
federal statute… But one cannot say that in this case.” Mr Justice Kerans then sums up his
view, at 14, in these words: “[I]t is one thing to create a status which existing federal law
recognizes or to define a prohibition supplementary to a federal prohibition: it is quite
impossible however for a province actually to amend federal law.” It would seem from all this
that any provincial adoption provision purporting to define the federal law in question, or to
insert into that law additional categories, would be an abortive attempt to amend that law.
Apparently, however, an independent assertion by the province of prohibitions of its own
would be both materially and formally good. The validity of this general proposition is rather
doubtful in the light of the decision of the Supreme Court of Canada in Natural Parents v.
Superintendent of Child Welfare, infra, note 88. If Mr Justice Kerans’ premises are correct,
would they not lead to the following conclusion: although a province could not “amend” the
Indian Act, R.S.C. 1970, c. 1-6, by “deeming” to fall outside its scope a biological Indian
adopted by non-Indians, that province could deprive a biological Indian child of its Indian
status simply by setting out in its adoption legislation an express prohibition against the
registration under thatAct of an Indian child adopted by non-Indians? Such a conclusion would
seem to be diametrically opposed to the reasoning of the Supreme Court of Canada in the
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being uncle and niece by adoption, they lacked the capacity to marry each
other. Mr Justice Dea, who dismissed the application, stated the applicants’
argument in this way: “[T]he references in the prohibited degrees to mother,
father, son, uncle, etc., have reference only to relationships arising from
blood or marriage. To interpret the degrees as including relationships created
by the application of adoption laws would … allow a provincial Legislature
in enacting an adoption law to change laws respecting the capacity of persons
to marry.” 12 Although it is nowhere stated expressly, the issue as seen by Mr
Justice Dea appears to have been whether there was any conflict between the
adoption laws of Alberta and the federal laws prescribing the degrees of
relationship within which persons are prohibited from intermarrying, the
resolution of which “requires in the absence of case law on the issue, an
analysis of the effect and purpose of both laws”. 3 Unfortunately, but
understandably, 74 the intersection of these two sets of laws was examined in a
very superficial way, the “required” analysis consisting of the following three
paragraphs:
Lord Lyndhurst’s Act directs itself to the issue of capacity to marry. It denies to
persons who stand in particular relationships with each other, the right to intermarry. It is a
law against the marriage of persons in close relationship with each other.
The adoption laws on the other hand are concerned with the welfare of children and in
furtherance of that object, provide for changes in legal status. Those changes most notably
affect a person adopted but they also, of necessity, affect his adoptive parents, his natural
parents and all of the kin in both groups with whom the person adopted becomes a part of
or is disassociated from “for all purposes”.
It seems to me that when the law respecting the prohibited degrees and the law
respecting adoptions are so viewed, no conflict is disclosed between the provincial and
Dominion laws. The Dominion law sets forth the prohibited degrees of marriage. The
provincial law determines the legal status of the applicants. In applying the Dominion law
it is proper to make reference to the legal status of the applicants as that legal status is
established by provincial law. To suggest that the prohibited degrees should be interpreted
or construed as if the legal status of the applicants as established by provincial law was of
no force or effect is unwarranted and without merit.’
Natural Parents case. Moreover, it is not clear whether Kerans L.A. would go so far as to allow
such express legislation even if the supplementary prohibitions were not necessary to the
effective operation of the provincial law, but were simply the potentially competing view of the
province in a closely connected collateral matter. If it is this that he is suggesting, then it is
respectfully submitted that he is wrong. See infra, notes 113 and 119. In any case, since no
provincial adoption legislation states expressly that marriages are prohibited between persons
in specific adoptive relationships, on the reasoning of the Alberta Court of Appeal, such
marriages would not be prohibited anywhere in Canada.
‘ 2Re Broddy, ibid., 759.
73Ibid., 760.
“The pressures of the system in which they function are such that, without a high degree of
specialized knowledge, neither counsel nor the court are likely to devote the time and attention
sometimes required to explore fully the ramifications of such a superficially simple case.
‘Re Broddy, supra, note 71, 760-1.
19831
MARRIAGE PROHIBITIONS
The first of these paragraphs purports to be an analysis of the purpose and
effect of the laws pertaining to prohibited degrees. In fact, it is not. Mr Justice
Dea has simply said that the law prohibiting persons standing in particular
relationships to each other from intermarrying is a law against the marriage of
persons in close relationship to each other. This tautological statement does
not tell us why such marriages are prohibited. Although not similarly redun-
dant, the second paragraph is not particularly helpful. It tells us that adoption
is concerned with the welfare of children in furtherance of which it replaces
one set of relationships with another. It does not indicate why the welfare of
adopted children iequires that their capacity to marry should be twice as
restricted as the capacity to marry of unadopted children.76 The third para-
graph is the bald conclusion that when these laws “are so viewed” no conflict
between them is disclosed. With all respect, it is submitted that a more
thorough analysis of the purpose, effect and interaction of the two sets of laws
would, at the very least, raise serious doubts as to whether provincial adoption
laws affect capacity to marry. 7
In 1978, a similar problem came before the Standing Senate Committee
on Legal and Constitutional Affairs in the form of Bill S-7.17 The Bill had as its
purpose to permit by private act of Parliament the marriage of two persons
who supposedly lacked the capacity to marry each other, being within the
prohibited degrees as provided by the general law. The couple in question,
who were Qu6bec domiciliaries, were brother and sister by adoption. Parlia-
ment, having already enacted a private act enabling biological third-degree
relatives –
to marry, the Committee was
prepared to report favourably on the enactment of an exemption for these
relatives by adoption, if there was a prohibition against such a marriage in the
first place. At this stage, the writer was invited to present to the Committee an
opinion on the matter. The written submission expressed the view that there
was, at least, very serious doubt as to whether the proposed marriage was
within the prohibited degrees 79 and that, even if it were, the desirability of
an uncle and his half-niece –
76 Unadopted children, whether their natural parents were ever married or not, are precluded
from marrying their biological relatives within three degrees. According to Re Broddy, ibid.,
adopted children are prohibited from marrying both their biological relatives and their relatives
by adoption within three degrees.
“‘The -recent unreported decision of the Court of Appeal of Alberta, supra, note 71,
reversing Mr Justice Dea, does nothing to resolve these doubts. See infra, note 84.
78 Bill S-7, An Act to provide an exception from the public general law relating to marriage
in the case of Lucien Roch Joseph Morin and Marie Rose Hilene Morin, withdrawn from
Senate consideration, 22 March 1978. See [1977-78] Debates of the Senate, 3d Sess., 30th
Parl., 506.
79The Senate of Canada, Standing Senate Committee on Legal and Constitutional Affairs,
Minutes of Proceedings, 15 February 1978, 3d Sess., 30th Parl., Issue No. 3, Appendix 3-A.
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granting an exemption so as to permit it was equally dubious.80 After provid-
ing reasons for such assertions, the opinion concluded by urging that the
report of the Senate Committee on Bill S-7 be delayed pending careful
consideration of these two matters. However, in the oral presentation of this
view, the opinion was asserted firmly that the Qu6bec adoption legislation did
not abridge the petitioners’ capacity to marry each other. 8
1 The Senate Com-
mittee concurred in that conclusion, and, rather than simply delaying their
report in order to study the matter in greater detail, the Committee decided not
to proceed with the Bill and the petitioners were advised that no impediment
to their marriage arose out of the fact that one of them was adopted by the
biological parents of the other.82
Whether provincial adoption legislation affects capacity to marry in-
volves two separate issues: (a) Does such legislation purport to establish
relationships within the prohibited degrees? (b) If so, is such legislation
operative for such purposes? 3
A. Does Provincial Adoption Legislation Purport to Establish Rela-
tionships Within the Prohibited Degrees?
As noted in Part I, it has been held repeatedly that the degrees of
relationship within which marriage was prohibited in England at the time such
law was introduced into the various parts of Canada were those set forth in
Archbishop Parker’s Table, and that such law remains in force unless and
until altered by federal legislation. It was noted, as well, that Parliament has
legislated in this field only so as to remove some of the prohibitions against
marriages between persons related by affinity. No one would assert provincial
competence to enact legislation directly and expressly for the purpose of
modifying the prohibited degrees, and what we are concerned with therefore,
is whether provincial legislation can incidentally affect prohibited degrees.”
10This aspect of the written presentation to the Senate Committee involves matters that were
not considered in Re Broddy, supra, note 71, but which would be relevant in determining
whether the welfare of adopted children is promoted by restricting their capacity to marry.
I’Supra, note 79, 17.
8See the Senate of Canada, Report of the Standing Senate Committee on Legal and
Constitutional Affairs in [1977-78] Debates of the Senate, 3d Sess., 30th Parl., 506.
“The same two issues, of course, arose respecting the Qu6bec legislation dealt with in Bill
S-7, and some repetition of the submissions made to the Standing Senate Committee, supra,
note 79, in that regard are inevitable.
“In light of the reasons given by the Court of Appeal of Alberta, in reversing the trial
judgment in Re Broddy, supra, note 71, this statement may have been over-confident. In the
course of his opinion, Kerans J.A. said, at 6: “It was also argued that capacity to marry, as a
legislative subject matter, is exclusively reserved to Canada. I do not accept this proposition.”
1983]
MARRIAGE PROHIBITIONS
The adoption legislation of one half of the provinces contains an express
reference to the laws of incest and to the prohibited degrees ,85 while that of the
other provinces and of the two Territories does not. 6 Typical of the former is
s. 57 of the Alberta Child Welfare Act:
57(1) For all purposes an adopted child becomes on adoption the child of the adopting
parent and the adopting parent becomes the parent of the child as if the child had been born
to that parent in lawful wedlock.
(2) For all purposes an adopted child ceases, on adoption, to be the child of his existing
parents, whether his natural parents or his adopting parents under a previous adoption, and
the existing parents of the adopted child cease to be his parents.
(3) Any reference to “child”,”children” or “issue” in any will, conveyance or other
document, whether heretofore or hereafter made, shall unless the contrary is expressed be
deemed to include an adopted child.
(4) The relationship to one another of all persons, whether the adopted child, the
adopting parent, the natural parents, or any other persons, shall be determined in
accordance with subsections (1), (2) and (3).
(5) Subsections (2) and (4) do not apply for the purposes of the laws relating to incest and
to the prohibited degrees of marriage to remove any persons from a relationship in
consanguinity that, but for this section, would have existed between them.
(6) This section
(a) applies and shall be deemed always to have applied with respect to an adoption made
under any legislation heretofore in force, and
(b)
succession affecting adopted children,
but nothing in this section affects an interest in property that has vested in a person before
the making of an order of adoption.”
is binding on the Crown for the purpose of construing this Act and the rights of
Subsection (5) of this provision implies several things. First, it recog-
nizes implicitly that if the prior subsections apply to such matters at all, then
However, in the context of the rest of his remarks, it is submitted that he meant only that, in
relation to a matter within its competence, a province could legislate so as to affect capacity to
marry. It would seem to be his view that provincial legislation can indirectly or incidentally
affect prohibited degrees, but only by expressly creating prohibitions supplementary to those
provided by federal law.
OThe provinces are Alberta, British Columbia, Nova Scotia, Ontario, and Prince Edward
Island. See Child WelfareAct, R.S.A. 1980, c. C-8, s. 57(5);AdoptionAct, R.S.B.C. 1979, c.
4, s. 11(6); Children’s Services Act, S.N.S. 1976, c. 8, s. 22(3) [the Act appears in the
Consolidated Statutes of N.S. as c. C-13]; Child Welfare Act, R.S.O. 1980, c. 66, s. 86(5);
Adoption Act, R.S.P.E.I. 1974, c. A-i, s. 19(4).
16The statutes in question in Manitoba, New Brunswick, Newfoundland, Qu6bec, Saskatch-
ewan, the Northwest Territories, and the Yukon, respectively, are: The Child Welfare Act,
S.M. 1974, c. 30;AdoptionAct, R.S.N.B. 1973, c. A-3;Adoption ofChildrenAct, S.N. 1972,
No. 36;AdoptionAct, R.S.Q., c. A-7;FamilyServicesAct, R.S.S. 1978, c. F-7; Child Welfare
Ordinance, R.O.N.W.T. 1974, c. C-3; Child Welfare Ordinance, R.O.Y.T. 1971, c. C-4.
“R.S.A. 1980, c. C-8, s. 57. When considered inReBroddy, supra, note71, this provision
was s. 60 of the Child Welfare Act, R.S.A. 1970, c. 45.
REVUE DE DROIT DE McGILL
[Vol. 28
they apply to the matter of incest as well as to the matter of prohibited degrees
of marriage. Secondly, because it says that subss (2) and (4) do not apply so as
to remove previous relationships, an implication is that subs. (1) does apply so
as to place persons not otherwise so related in a relationship of consanguinity
within the scope of the laws as to incest and prohibitions. In other words,
subs. (5) would appear to be unnecessary unless subss (2) and (4) succeeded
in removing natural relationships of consanguinity from the scope of the laws
as to incest and prohibitions, and if these provisions succeed in that respect,
then subs. (1) must also succeed in placing artificial relationships of consan-
guinity within the scope of these federal laws. A third implication might be
that the Alberta legislature regards as socially undesirable marriages between
persons deemed by adoption to be related within three degrees, and continues
to view as socially undesirable marriages within three degrees between actual
biological relatives, one of whom has been adopted by a third party.
Unlike the Alberta-type provision, the adoption legislation of the other
provinces, and of the Territories, simply purports to make the adopted child,
for all purposes, the child of the adopters and thus related to their kin, and to
eradicate for all purposes the child’s previous relationships, including the
purely biological. In making no reference to the laws of incest or the prohi-
bited degrees, such legislation lends itself more easily to the interpretation
that it was not intended to, and does not, affect such matters. However, the
express references in legislation such as that in Alberta can arguably be said to
have been enacted ex abundante cautela, leaving such legislation in the same
position as that of the other provinces. Unnecessary precautionary legislation
is not rare. Indeed, in an analogous situation, the Supreme Court of Canada
considered a particular provincial provision that stated that adoption does not
affect the Indian status of an adopted child. 8 It was held that the provision, at
best, served only to reinforce the view the Court had already reached that
provincial adoption legislation could not deprive an adopted child of his
Indian status.
The purpose of the provincial legislation in question – whether or not it
contains an express reference to incest and prohibited degrees –
is to place
the adopted child, so far as is possible and consistent with general law, in the
same position as if it had been born to the idopting parents rather than to its
biological parents. We are dealing with a legal fiction whose purpose is
clearly to parallel consanguinity rather than affinity. We are not asked to
pretend for legal purposes that the adopters are the child’s mother- and
father-in-law and that their other children are its brothers- and sisters-in-law.
Rather, these provisions deem these parties to be biologically related, and
“Natural Parents v. Superintendent of Child Welfare [1976] 2 S.C.R. 751, (1975) 60
D.L.R. (3d) 148 [hereinafter cited to S.C.R.].
1983]
MARRIAGE PROHIBITIONS
deem that the adopted child and his natural kin are not biologically related.
However, it is submitted that there is no prohibition under the general law of
Canada against the marriage of persons deemed to be biologically related, and
that the incapacity to intermarry attaches indelibly only to those actually
biologically related, whether legitimate or not. Archbishop Parker’s Table
shows only two kinds of prohibitions. The first are those involving natural,
i.e. biological, relationships, as distinct from artificial relationships. Such
relationships exist independently of law, and they link people regardless of
their legal relationships. The law can no more extinguish or create biological
relationships than it can prevent the sun from setting. The status of legitimacy
– of being the lawful child and heir – was as irrelevant then in the matter of
capacity to marry as it is now in defining incest, and for the same reasons, no
doubt. In defining “incest”, the Criminal Code uses the expression “blood
relationship”.89 It is suggested that this means actual blood, and that provin-
cial laws deeming persons to be related by blood do not place them within the
ambit of the criminal law on incest. If that is correct, it is not simply because
the Criminal Code is involved, but because the gravamen of the offence is the
eugenic concern and the general sense of revulsion at the forbidden conduct.
The common law prohibitions against consanguineous marriages exist, in
part, for the same reason: to prevent incestuous intercourse. Natural relatives,
whether legally related or not, could not intermarry within certain degrees.
This was so whether they were of the “whole-blood” or of the “half-blood”.
But relationships of the “deemed-blood” were not included in these prohibi-
tions, and unions between persons so related involve neither eugenic consid-
erations, nor, as will be seen in the next Part, any general sense of revulsion.
Apart from affinity, it is natural relationships and only such relationships, that
are involved in the prohibited degrees.
The second kind of prohibition contained in Archbishop Parker’s Table
was in respect of artificial relationships. Although relationships produced by
adoption are artificial, at common law the only kind of artificial relationships
affecting capacity to marry were those of affinity arising by operation of law
as a legal incident of marriage. The artificial relationships established by
operation of law through the device of legal adoption, being unknown at
common law, did not affect capacity to marry.’ If adoption is to operate as a
third class of relationships within which marriages are to be prohibited, there
would have to be legislation to that effect. No provincial legislation states
‘9R.S.C. 1970, c. C-34, s. 150(1).
I’De facto adoption, of course, was known at common law. Yet, although the social
justification, if any, for restricting the capacity to marry of adopted persons is virtually the same
whether the adoption is legal or simply defacto, no such prohibition was thought necessary. In
the course of his unreported judgment in the Broddy case, supra, note 71, 2, Kerans J.A.
observed that “the common law did not recognize a notional relationship created by adoption”.
McGILL LAW JOURNAL
(Vol. 28
expressly that “marriage is prohibited between persons related within three
degrees by adoption”, and it would be ultra vires if it did. Since Parliament
has not legislated so as to prohibit marriages between persons related by
adoption, such marriages are not now prohibited. Since the incapacity to
intermarry on the ground of artificial relationship arises only through mar-
riage, it follows that adoption simply does not affect capacity to marry.
Some support for this argument can be found in the opinion expressed by
Mr Justice Davey in Crickmay v. Crickmay.1 In holding that a woman was
not prohibited from marrying the brother of her divorced but living husband,
Davey J.A. made what appears to be an analogous argument, and one in
which Mr Justice Norris concurred. Although the rules set out by Archbishop
Parker preclude a woman from marrying her deceased husband’s brother,92
because there was no divorce at common law there was no common law rule
prohibiting her from marrying her divorced husband’s brother. At the time
divorce became part of the general law, such a marriage could be entered into
because neither the common law nor statute prohibited it. 93 By analogy, it may
be argued that, although at common law a woman could not marry her
biological brother, since there was no legal adoption at common law, there
was no common law rule prohibiting her from marrying her adopted brother. 4
When legal adoption became possible, in the absence of an express statutory
prohibition, 95 she could marry him because there was still no common law rule
prohibiting her from doing so.
The submission under consideration is that provincial adoption legisla-
tion does not really purport to affect incest and capacity to marry. Assuming
that this legislation is open to such an interpretation, a second proposition may
9 Supra, note 4, 734. Obviously, the preceding argument is not meant to depend on the
analogy being drawn to Mr Justice Davey’s argument, since a strong criticism of his argument
(for reasons not applicable in the matter of adoption) has already been registered in dealing with
the effect of divorce on the prohibited degrees. However, if his argument is valid, then it would
certainly reinforce the view that adoption does not affect capacity to marry.
9’Such a marriage is now permitted by the Marriage Act, R.S.C. 1970, c. M-5.
93Because there was no judicial divorce, it would seem that the opportunity to marry a
divorced spouse’s sibling could not arise. However, prior to the introduction ofjudicial divorce
in England, in 1857, it was possible in certain circumstances to obtain a private act of divorce.
According to Mr Justice Davey’s argument in Crickmay, supra, note 4, there could have been
no prohibition against a marriage between a person divorced by private act, and the sibling of
his or her divorced spouse.
1Of course, since there was no legal adoption, there was no opportunity to marry a legally
adopted brother. However, as already discussed, there was defacto adoption, and if there are
any substantive reasons (i.e. reasons other than the merely accidental intersection of federal
and provincial laws) for restricting a legally adopted child’s capacity to marry, surely those
reasons are equally applicable in the case of de facto adoption.
‘It is probable that legislation must be clear and express in order to affect the validity of
marriage in general, and the prohibited degrees in particular. See supra, note 19.
1983]
MARRIAGE PROHIBITIONS
be advanced. Where legislation is susceptible of two interpretations, that
which produces anomalies and undesirable consequences ought to be re-
jected. It is suggested that an interpretation whereby provincial adoption
legislation affects these matters leads to bizarre consequences and ought to be
rejected.
In exercising its exclusive jurisdiction to prohibit marriages for close-
ness of kinship, and to render criminal, as being incestuous, sexual inter-
course between certain persons, Parliament has prohibited biological siblings
from intermarrying and has made sexual relations between them a criminal
offence punishable by up to fourteen years in prison. Similarly, a person is
prohibited from marrying his or her biological child or grandchild, and sexual
relations between them are criminal.
A totally unrestricted interpretation of provincial adoption legislation
would not only have the effect of prohibiting an adopted person from mar-
rying a sibling or parent by adoption, but it would make sexual intercourse
between them a crime.96 In every province and territory, except New Bruns-
wick, it would also prohibit a marriage between an adopted person and his or
her aunt, uncle, niece, or nephew by adoption. Under the sharply different
New Brunswick legislation,97 the impeded relationships would not include a
person’s third degree collateral relatives by adoption. Moreover, while in all
other jurisdictions sexual intercourse between the adopted child and persons
deemed by the adoption to be his or her sister, brother, parent, or grandparent
would be criminally incestuous, such conduct between the adopted child and
his or her adopted parent’s parent would not be incestuous in New Brunswick
because adoption does not create a relationship of adopted child-grandparent
in that province. The relevant provision reads as follows:
A person adopted shall stand in regard to the legal descendants, but to no other kindred, of
the adopting parent in the same position as if he had been born to the adopting parent in
lawful wedlock.”
There is a further difference between the New Brunswick provision and
the legislation of other Canadian jurisdictions, and it is particularly anoma-
lous. An adopted person could marry his or her adopting parent’s sister or
brother, because they are not the descendants of the adopting parent. This
provision does not deem them to be nephew-aunt or niece-uncle by adoption.
However, the adopted person would be prohibited from marrying his or her
sibling-by-adoption’s daughter or son, since the latter are descendants of the
adopting parent and the provision deems such parties to be uncle-niece or
aunt-nephew by adoption.
“The Alberta Court of Appeal did not address this point in its judgment in the Broddy case,
supra, note 71.
“7See the Adoption Act, R.S.N.B. 1973, c. A-3, s. 33(2).
“Adoption Act, R.S.N.B. 1973, c. A-3, s. 33(2).
REVUE DE DROIT DE McGILL
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Still pursuing the hypothesis of an unrestricted interpretation of the
provincial legislation, in those provinces that lack a saving provision –
so as
not to remove anyone from a previous relationship for the purpose of the laws
of incest and prohibited degrees –
although an adopted person could not
marry an adoptive sibling or parent, he or she could marry a biological sibling
or parent, 99 and sexual intercourse between them would not be a crime. Thus,
assuming that all relevant events occurred within the province whose legisla-
tion is in question, a marriage between an adopted person and his or her
biological parent or sibling would be permitted in some provinces, but not in
others. Similarly, sexual relations between such persons would be criminal in
some parts of Canada, but not in others. As if this were not sufficiently
bizarre, consider the problems that might arise where all the events do not
occur within the territory of one province. What law applies to determine the
capacity to marry of an adopted person? Is it the law of the parties’ domicile?
And what if they have different domiciles? Is it the law of the place of
celebration? The law of the forum? The law of that jurisdiction with which
they have a real and substantial connection? Or should the problem be
characterized as essentially an adoption matter to which yet a different choice
of law rule might apply?100 And what is the effect of a specific provincial law
dealing with foreign adoptions, including those of another province, when it
comes to determining the validity in that province of the marriage elsewhere
of an adopted person? Several provinces have enacted that an adoption order
made anywhere else will have the same effect in the province as if it had been
made there. 0′ One province grants that effect only to foreign adoption orders
of countries listed in certain regulations.c0 Another specifically recognizes
foreign adoption orders for succession purposes, thereby implying that it does
not recognize them for other purposes. 3 Two provinces, Nova Scotia and
Newfoundland, seem to accord to the adopted child and adopting parent under
a foreign adoption order, but apparently not to other relatives by adoption, the
status, rights and duties they would have under a local adoption order.’M The
9Or aunt, uncle, niece, or nephew.
00See J.-G. Castel, Introduction to Conflict of Laws (1978) 95-6 concerning capacity to
marry, and 131 concerning adoption.
“I These provinces are Alberta, British Columbia, Manitoba, Ontario, Prince Edward
Island, the Yukon and the Northwest Territories; see Child Welfare Act, R.S.A. 1980, c. C-8,
s. 61; Adoption Act, R.S.B.C. 1979, c. 4, s. 12; The Child Welfare Act, S.M. 1974, c. 30, s.
81; Child WelfareAct, R.S.O. 1980, c. 66, s. 87;AdoptionAct, R.S.P.E.I. 1974, c. A-1, s. 27;
Child Welfare Ordinance, R.O.Y.T. 1971, c. C-4, s. 86(11); Child Welfare Ordinance,
R.O.N.W.T. 1974, c. C-3, s. 93.
01See Adoption Act, R.S.N.B. 1973, c. A-3, s. 35. This was also the position until quite
recently in British Columbia. See Adoption Act, R.S.B.C. 1960, c. 4, s. 11.
“See Family Services Act, R.S.S. 1978, c. F-7, s. 66.
” See Children’s ServicesAct, S.N.S. 1976, c. 8, s. 28 [theAct appears in the Consolidated
Statutes of N.S. as c. C-13]; Adoption of Children Act, S.N. 1972, No. 36, s. 18.
1983]
MARRIAGE PROHIBITIONS
Nova Scotia provision, which is essentially the same as that of Newfound-
land, reads as follows:
28. When a person has been adopted in another province, state or country according to
the law of that place, and while domiciled or resident there or having been born there, or
while his adoptive parent was domiciled or resident there, he and his adoptive parent have
for all purposes in the Province the same status, rights and duties as if the adoption had
been in accordance with this Act. 05
Apart from leaving unclear the status of the adopted person and his
adoptive parent where both of them are no longer domiciled or resident in the
place of adoption, these provisions seem to indicate that the relationships of
sibling, uncle, aunt, nephew, and niece by foreign adoption are not recog-
nized in those two provinces. For example, if provincial legislation is taken to
affect such federal matters, sexual intercourse between a man and a woman
adopted by his parents in another province would be criminally incestuous in
every province but these two. A man and a woman deemed to be his sister by
an adoption in Ontario, for example, would lack the capacity to marry in that
province. But apparently they could go to Nova Scotia or New Brunswick and
get married. Neither the consummation of, nor a naughty anticipation of, that
marriage would be criminal if it occurred in either of those provinces. But
their marriage would be void ipsojure in Ontario, and it could be so treated in
any action in that province in which its validity should arise, whether they are
parties to the action or not. And if they returned to Ontario and had the
temerity to indulge in marital intercourse there, they would be guilty of the
crime of incest.
The possibility for proliferating the ridiculous becomes staggering when
the effect of subsequent adoption orders is brought into consideration. Alber-
ta, British Columbia, Manitoba, Nova Scotia, Ontario, Prince Edward Is-
land, and the Yukon and Northwest Territories do not deal separately with the
effect upon the earlier order of a subsequent adoption of the child. In
Manitoba, which lacks the “saving provision”, the situation would appear to
be that the relationships established by the first adoption are completely wiped
out, just as biological relationships are terminated by the first adoption. But in
the other jurisdictions, since an adoption order expressly does not apply so as
to remove anyone from a relationship for the purpose of the laws pertaining to
incest and prohibited degrees of marriage, and since the first adoption, ex
hypothesi, created such relationships, the second adoption would not remove
them. Thus, a man could marry his former sister-by-adoption in Manitoba,
but she would be added to his personally prohibited list in the seven other
jurisdictions. The remaining provinces have specific provisions whereby a
subsequent adoption terminates the status, relationships and rights created by
01Children’s Services Act, S.N.S. 1976, c. 8, s. 28 [the Act appears in the Consolidated
Statutes of N.S. as c. C-13; emphasis added].
McGILL LAW JOURNAL
(Vol. 28
the previous adoption, except vested interests in property.” The anomalies
occasioned by a subsequent order are increased even further by the possibility
that the adoption orders may be in separate jurisdictions. Suppose, for
instance, that the first adoption occurred in Alberta and the second one in
Manitoba. Would Alberta recognize the Manitoba adoption as eradicating for
all purposes all of the relationships created by the Alberta adoption when a
second Alberta adoption would not have that effect?
A final factor that should be taken into account is that the adopted child
may have only one adopting parent. Not only are single applicant adoptions
possible, but not infrequently the marriage of joint adopters ends through
death or divorce, and the survivor may remarry. Suppose H and W adopt a
son, S. W dies and H marries X who has two daughters, D and E. S and D are
in their late teens and do not wish to be adopted by either X or H, respectively.
But E is much younger and is adopted by H. Assuming there were no other
impediments to such an eventual union, S could marry D, and sexual relations
between them would not be criminal, but he could not marry D’s sister E, and
sex with her would be the crime of incest. Although sexual intercourse
between H and E would be incestuous, his intercourse with E’s sister D would
not be the crime of incest. However, because D is his step-daughter, sexual
relations with her might involve him in the non-incestuous lesser offence of
illicit sexual relations with a step-daughter, a crime punishable by up to two
years imprisonment.”n
The foregoing review of the difficulties that would otherwise result
points to the soundness of interpreting the federal law in these matters as
pertaining only to actual, not deemed, biological relationships.”I This does no
‘6See the Adoption Act, R.S.N.B. 1973, c. A-3, s. 36; Adoption of Children Act, S.N.
1972, No. 36,s. 16(2);AdoptionAct, R.S.Q., c. A-7, s.40; FamilyServicesAct, R.S.S. 1978,
c. F-7, s. 67.
0 See the Criminal Code, R.S.C. 1970, c. C-34, s. 153. This is not the crime of incest, but
the separate offence of illicit sex with a step-daughter. Presumably if they were married in a
jurisdiction permitting it, their sexual intercourse would not be illicit. Incidentally, in order to
be a step-daughter for the purposes of s. 153, the child must be the legitimate child of the
step-father’s wife. If a man marries a woman who has an illegitimate daughter, she is not his
step-daughter for the purposes of s. 153. See R. v. Groening (1953) 107 C.C.C. 234 (Man.
C.A.). Quaere, whether a provincial statute abolishing illegitimacy (see supra, note 68) would
deprive an accused of this defence. However, the illegitimate daughter would be the accused’s
step-daughter for the purpose of the prohibited degrees, as it has long been held that rela-
tionships for these purposes do not depend upon legitimacy.
“”As Kerans J.A. points out in the Broddy case, supra, note 71, 6-7: “[T]he distracting
possibility of 10 varying rules on capacity [to marry] in Canada … is the price one pays to have
a federal state, and therefore cannot be a reason for denying jurisdiction to a province.”
However, this is not to say that one’s choice between two possible interpretations of provincial
legislation is not to be influenced by the particularly anomalous consequences of one of them
upon the application of federal law.
19831
MARRIAGE PROHIBITIONS
violence to provincial adoption legislation, the scope of which remains intact
for all other purposes. Moreover, it is submitted that, even if provincial
adoption legislation purports to do so, as a matter of constitutional law it is
doubtful that it could operate so as to alter or modify the capacity of Canadians
to marry.
B.
Is Provincial Legislation Inoperative to the Extent that it Purports to
Affect Capacity to Marry?
Although the provinces cannot validly enact laws expressly in relation to
matters coming within the heads of power assigned to the Parliament of
Canada, they may in certain circumstances enact legislation that affects
incidentally such federal matters. ‘I It was once considered that provincial
legislation could not intrude even incidentally into an occupied federal field
and a strong argument can be made that Parliament has totally occupied the
–
field of prohibited degrees – but that view seems now to have been generally
discarded.” 0 However, under the so-called paramountcy doctrine, there is no
doubt that where valid federal and valid provincial legislation meet, the
provincial legislation will be inoperative, at least to the extent that it is
inconsistent with the federal law.”‘ The submission being made is that the
relevant adoption provisions of some provinces may be ultra vires as being
expressly in relation to the federal laws on incest and prohibited degrees and
10 Presumably the relationship of parent-child conferred by adoption, for example, inciden-
tally enables one person to claim another as a dependant for federal income tax purposes. This
general point is dealt with thoroughly in P. Hogg, Constitutional Law of Canada (1977) 80-92,
and the leading cases are cited therein.
“0See ibid., 103-10.
” See ibid., 102-14. See alsoMultipleAccessLtd v. McCutcheon (1982) 138 D.L.R. (3d) 1,
(1982) 44 N.R. 181 (S.C.C.) rev’g (1978) 19 O.R. (2d) 516, (1978) 86 D.L.R. (3d) 160
(C.A.); NaturalParents v. Superintendent of Child Welfare, supra, note 88. Although the term
“inconsistency” has a naturally flexible connotation it would certainly appear to embrace an
operational inconsistency such as where the observance of provincial law involves the breach
of federal law, or where the application of federal law would be ousted by the provincial
provision. In the course of reversing the trial decision in the Broddy case, supra, note 71, 11,
Kerans J.A. said this: “There is no conflict between the section under review and Lord
Lyndhurst’s Act. The pre-confederation statute forbids the male appellant from marrying his
natural niece. The province would forbid him also from marrying his adoptive niece. He could
obey such a provincial law without breach of the other.” However, if the test were simply
whether obedience to provincial law involved breach of federal law, then the legislative intent
of Parliament could be effectively thwarted. For instance, if Parliament were to enact legisla-
tion stating that “a marriage is not invalid merely because the parties are related by adoption”,
could a province then effectively prevent such marriages by declaring expressly in adoption
legislation that such marriages are void? Inasmuch as the parties “could obey such a provincial
law without breach of the other”, why not? See also infra, notes 124 and 126.
REVUE DE DROIT DE McGILL
[Vol. 28
that, in any case, there exists between all such present provincial legislation
and those federal laws an inconsistency of such character as to preclude the
operation of the provincial law within the occupied federal field.
It has already been pointed out that the adoption legislation of several
provinces contains a “saving provision” whereby an adoption does not re-
move any persons from a pre-existing relationship of consanguinity for the
purpose of the laws relating to incest and to the prohibited degrees.” 2 The
adoption legislation in the remaining provinces and in the Territories makes
no reference at all to these federal matters. It could be argued that the former
legislation containing the “saving provision” deals expressly with the crimin-
al law on incest and with the prohibited degrees of marriage and, precisely
because it purports not to remove any previously existing relationships from
the reach of federal law, it purports directly to bring certain relationships
within the scope of such federal law. It could then be asserted that such a
direct invasion of the federal powers would be ultra vires.”3
In those jurisdictions in which there is no “saving provision”, the effect,
if any, of their adoption law on the federal laws in question would be
incidental, and the applicability of the paramountcy doctrine must be consi-
dered. The adoption legislation in such jurisdictions would clearly be inopera-
“‘ See supra, note 85.
“‘Although the point is not dealt with clearly in his judgment, itis likely that Kerans J.A. in
the Broddy case, supra, note 71, would be of a different view. But see the opinion of BeetzJ. in
the Natural Parents case, supra, note 88, 787, regarding another “saving provision” in the
British ColumbiaAdoption Act, R.S.B.C. 1960, c. 4. The saving provision in question, which
was s. 10(4a) as added byAnAct to amend theAdoption Act, S.B.C. 1973 (2d Sess.), c. 95,s. 1
[now s. 11(5) of theAdoptionAct, R.S.B.C. 1979, c. 4], was to the effect that subss (1), (2) &
(3), creating and extinguishing relationships “for all purposes”, do not apply so as to affect
Indian status either by removing it from or conferring it upon an adopted person. This provision
was inserted after the Natural Parents case had begun, but before it reached the Supreme Court
of Canada. In the course of his judgment, at 787, Mr Justice Beetz said that “subs. (4a) of the
Adoption Act is, in my opinion, clearly ultra-vires. This may be paradoxical since s. (4a)
appears to have been dictated by the intent not to invade federal jurisdiction. But what was said
is what matters, not what was meant. Whether ‘the status, rights, privileges, disabilities and
limitations of an adopted Indian person acquired as an Indian under the Indian Act’ are affected
or not affected by adoption is, as a matter of legislative policy, exclusively for Parliament to
decide, or, as a question of interpretation in a proper case, for the courts to rule upon.” He went
on to find that, even without the ultra vires provision, adoption does not affect Indian status.
Pigeon and de Grandpr6 JJ., at 783, agreed with this view. The other members of the Supreme
Court took the view that the provision was inoperative, whether for constitutional reasons or
simply because it was purely precautionary. See the judgments of Laskin C.J.C. at 755,
Martland J. at 766 and Ritchie J. at 776. All members of the Court went on to find that, even
without the ultra vires provision, adoption does not affect Indian status. This reasoning would
seem to apply with greater force to saving provisions purporting not to affect by removing, but
purporting therefore to affect by conferring, relationships by consanguinity for the purposes of
the federal laws on incest and prohibited degrees.
1983]
MARRIAGE PROHIBITIONS
tive to the extent that it might be taken to sever pre-existing relationships of
consanguinity so as to provide a defence to a charge of incest, or to purport to
render valid a marriage otherwise void. However, since it might be argued
that provincial law could prohibit that which the federal law merely permits,”4
it is not immediately apparent that the provinces could not incidentally add to
the prohibited degrees and render criminally incestuous intercourse between
biological strangers. However, unless the provision creating the new rela-
tionships for the purposes of the laws of incest and prohibited degrees can be
severed from the provision purporting to extinguish the natural relationships,
then both provisions must be inoperative. “5 The scheme of the provincial
legislation is to replace one set of relationships with another, so these
provisions are as inextricably related as two sides of a coin. They cannot
effectively be severed and, just as the riven faces of a physically divided coin
could have no separate currency, neither of these provisions can operate
independently of the other so as to affect the federal laws in question., 16 But
assuming that these two provincial provisions were severable, would it not be
an odd quirk of constitutional law if the provincial legislation operated, even
incidentally, to remove a substantive defence to a charge of incest under the
Criminal Code, namely, that the parties are not biologically related? In any
event, if provincial law, as an incidental effect of adoption, can intrude into
either of the federal fields of incest and prohibited degrees, it can intrude into
both. Indeed, this proposition is implicit in the “saving provisions” found in
many of the provincial statutes.”‘ Does this provincial legislation render
incestuous an act of intercourse not otherwise criminal? If not, then neither
does it prohibit a marriage not otherwise impeded. If it does, not only would it
be an apparently unprecedented instance of a provincially created felony, but
it would result in conduct being criminal in one province but not in another. ” 8
If the apparently direct incursion into these federal areas in those provinces
whose legislation has the “saving provision” is ultra vires, as suggested
above, then such legislation does not make criminal intercourse between a
person and his or her adopted parent, grandparent or sibling. If the legislation
” See Hogg, supra, note 110. An example might be this: suppose the Criminal Code were to
prohibit driving over 100 km/h on any highway in Canada. A provincial law restricting the
speed to 80 km/h would not be repugnant. See also the discussion of Broddy, supra, note I 11.
“‘See Hogg, ibid., 88-90.
“6Although some provinces provide for the termination of previous relationships in a
separate provision from that establishing the new relationships, other provinces set out the
entire process of replacement of relationships in the same provision, making their severance
even more improbable.
“‘See supra, text accompanying notes 112 and 113.
“I The differences in provincial adoption legislation leading to such anomalies were canvas-
sed earlier. See supra, text accompanying notes 99 to 108. It should also be noted that the
legislation in the twelve jurisdictions involved was enacted at different times, amended at
different times, and it is subject to local change at any time.
McGILL LAW JOURNAL
[Vol. 28
in the other provinces were operative for such purposes, then the guilt or
innocence of the crime of incest Would depend upon the province in which a
couple slept together. Would it not be absurd that the consummation in one
province of a marriage validly entered into in another would be criminal?” 9
Finally, with respect to the constitutionality of a provincial incursion,
direct or indirect, into the federal fields of incest and prohibited degrees, the
case of Natural Parents v. Superintendent of Child Welfare 120 should be
examined. That case was drawn to the attention of Mr Justice Dea in Re
Broddy,’2′ but he took the view that it was of peripheral value only, and he did
not bother to distinguish the earlier Supreme Court of Canada decision from
the case before him. It is respectfully submitted that, although the Natural
Parents case did not deal specifically with the effect of adoption on the laws of
incest and prohibited degrees, it is sufficiently apposite to that issue that it
ought to have been carefully distinguished-
before
being found inapplicable.’ 22 The case concerned the adoption, under the
British Columbia Adoption Act,” of a status Indian child by non-Indian
adopting parents. The adoption purported to sever all prior relationships and
to treat the child as though born to his adopting parents in lawful marriage. Of
course, had he been their biological child, he would not have been an Indian.
if indeed it can be –
19 It may be that provincial law can have an effect upon the application of the Criminal Code,
R.S.C. 1970, c. C-34, e.g., setting an age limit for the purpose of defining “juvenile” in
accordance with which certain punishable conduct may be dealt with differently than under the
Criminal Code. However, it would not seem open to the provinces to change the essential
character of conduct proscribed by federal law so that in one province that conduct is indictable,
while in another it is not even legally reprehensible and will not be interfered with by the law.
Unfortunately, in his judgment in Broddy, supra, note 71, Kerans J.A. did not consider the
question whether a province could expressly make sexual intercourse between adoptive
relatives a crime. He did indicate that a province cannot insert a new category into a federal law,
and it would appear to follow that it could not thrust people into the scope of a federal criminal
prohibition. However, he seems to imply that the province can create supplementary prohibi-
tions in relation to the scheme of valid provincial legislation. Apparently, if a province stated
expressly that a man may not marry his adopted sister, that prohibition would be valid because
it would be independent of, and not an amendment to, federal law. Would it be his view that, if
a province stated expressly in its adoption legislation that sexual intercourse between a man and
his adopted sister is incestuous and punishable by a fine, then such a provision would be valid
and enforceable? Why not? Is s. 91(27) of the Constitution Act, 1867, 30 & 31 Vict., c. 3
(U.K.), to be dealt with differently than s. 91(26)?
“zSupra, note 88.
‘Supra, note 71, 760.
1 1 In overruling Mr Justice Dea in Re Broddy, the Alberta Court of Appeal, supra, note 71,
8-9, considered the Natural Parents case only in relation to the “double aspect” rule. It is
submitted that Kerans J.A., who seems to express some doubt as to the opinion of Chief Justice
Laskin regarding this rule, has missed the essential point of the Natural Parents case in relation
to the issue before him.
11R.S.B.C. 1960, c. 4 [now R.S.B.C. 1979, c. 4].
1983]
MARRIAGE PROHIBITIONS
It was held that the provincial Adoption Act could not deprive the child of the
right to Indian status, which was a federal matter. 24
The main question before the Court in the Natural Parents case was
whether the Adoption Act of British Columbia applied at all to Indians living
in that province. The opinions handed down varied as to whether the applica-
bility of general provincial law to Indians depends on such law having been
incorporated by reference under s. 88 of the Indian Act,’15 or whether provin-
cial law of general application would apply to Indians living within the
province even in the absence of s. 88. In the result, the members of the Court
were all of the view that the British Columbia Adoption Act does apply to
Indians in that province so as to permit their adoption, whether by Indians or
non-Indians. More importantly in the present context, the Justices all con-
cluded that the words “for all purposes” found in the provisions extinguishing
and creating relationships by adoption do not destroy entitlement to registra-
tion under the Indian Act. The same conclusion had been reached unanimous-
ly by the Court of Appeal of British Columbia, which concluded that “[t]he
Adoption Act applies to the extent that it is not inconsistent with the Indian
Act. Where there is an inconsistency, the Indian Act prevails”. 26 Mr Justice
Martland, in agreeing with the view of the Court of Appeal, put it this way:
“[T]he words ‘for all purposes’ in subss. (1) and (2) of s. 10 of the Adoption
Act must be taken to refer to all purposes within the competence of the British
Columbia Legislature. Section 10… did not purport to deprive the child of
any status or rights which he possessed under the Indian Act at the time of his
adoption, and it is clear that no provincial legislation could deprive him of
such rights”. 27 Such provisions no more purport to affect marital capacity and
incest than they purport to affect Indian status, and the statement that these
identical subsections “must be taken to refer to all purposes within the
competence” of the enacting province does not lose its validity simply by
changing the context of competing federal law from the Indian Act 2 to the
’24The reverse situation arose in Sahanatien v. Smith (1982) 134 D.L.R. (3d) 172
(F.C.T.D.), in which Mr Justice Cattanach followed the reasoning in the Natural Parents case,
supra, note 88, by holding that a full-blooded Indian who was ineligible to be registered under
the Indian Act, R.S.C. 1970, c. 1-6, because of his illegitimate birth, did not become eligible
for such registration by reason of his adoption in Ontario by registered Indians.
‘1R.S.C. 1970, c. 1-6.
‘ Sub nom ReAdoption Act (1974) 44 D.L.R. (3d) 718,721 (B.C.C.A.). In the Sahanatien
case, supra, note 124, 177, Mr Justice Cattanach found an inconsistency between the adoption
provision, which purports to make the adopted child the child of its adopting parents “for all
purposes”, and the specific requirements for registration under the Indian Act, R.S.C. 1970, c.
1-6. He held that the provincial legislation could not operate so as to “circumvent the precise
conditions precedent to registration set out in s. 11 of the Indian Act”.
‘”Natural Parents, supra, note 88, 775 [emphasis added].
‘aR.S.C. 1970, c. 1-6.
REVUE DE DROIT DE McGILL
[Vol. 28
Criminal Code 29 and capacity to marry. It follows that provincial adoption
legislation is blunted to the extent of inconsistency with any federal law which
is validly enacted and therefore cannot curtail or deprive persons of their
capacity to marry, which is itself an incident of status, nor can it render them
criminally culpable. Is this not even more apparent where the consequence
would be to make conduct criminal in some provinces, but not in others, and
to make marital status different in the various provinces so that the application
of federal impediments would result in a couple being married in one pro-
vince, but not in another? To borrow from the concluding remark of the Chief
Justice of Canada in the Natural Parents case, surely the strange and un-
acceptable consequences of finding provincial adoption legislation to operate
so as to affect the laws pertaining to incest and the prohibited degrees
constitute “a result to which [the courts] would not come unless clearly
compelled to do so by unambiguous legislation”Y’
The better view is that adoption does not affect the prohibited degrees of
marriage, much less the law relating to incest. Whether adoption ought to
affect such matters is a separate question, and it is addressed in the conclu-
sions that follow.
Conclusion
Legal systems react to social change as if perceiving it from afar. By the
time the light of such change dawns, the attitudes that prompted it are
obsolescent, yet emergent patterns of social behaviour remain undetected. To
be a step behind the times is endemic to the system; but the law can, at least,
be made to reflect recent sociological developments. The failure of Canadian
law to contemplate contemporary realities is nowhere more evident than in
relation to marriage and the family. The Fathers of Confederation clothed
Parliament with the authority to determine the common and essential charac-
teristics of marriage and to maintain these elements in conformity with
evolving social values. Whether to avoid offending provincial sensibilities, or
to minimize regional risks at the polls, successive federal governments have
shied away from exercising this potentially unifying authority. A century
passed before the first general and comprehensive divorce law was
introduced, 3′ and another may pass before Canada has a clear and uniform
‘1R.S.C. 1970, c. C-34.
11″Supra, note 88, 766.
“‘Prior to the Divorce Act, S.C. 1968, c. 24 [now R.S.C. 1970, c. D-8], Parliament enacted
a number of minor provisions for the benefit of those provinces which entered confederation
endowed with divorce law. The first comprehensive divorce law passed was not general; it was
enacted for one province only – Ontario. The Divorce Act (Ontario), S.C. 1930, c. 14,
1983]
MARRIAGE PROHIBITIONS
law of marital capacity. Although Australia has enjoyed such legislation for
several years, a general statute on the nullity of marriage is certainly a long
way off in this country. While the relative ease of modem divorce may have
diminished the interest in nullity law reform, a serious problem remains –
persons who should be able to marry each other are being denied that right.
The divorce law holds no remedy for them. Only Parliament can redress the
situation, and it ought to do so by general enabling legislation and not through
a series of ad hoc dispensations. Reform of the law in the small area that
concerns the prohibited degrees of marriage is uncomplicated and should
prove to be rather uncontroversial. It happens, as well, to be the only field in
the federal domain of marriage that Parliament has already occupied. What is
required now is only that it move about in that field. The revision of existing
federal legislation in this narrow field ought not to be delayed pending as yet
uncontemplated omnibus changes that may be decades away.
At the outset it was suggested that Canada ought to follow substantially
the Australian lead in eliminating all prohibitions of marriage save those of
biological siblings and persons related lineally either by consanguinity or by
adoption. An account of their historical purposes reveals the present in-
appropriateness of most of the prohibitions and lends ample support to this
approach.
The historical justification for prohibiting the marriage of related per-
sons rested on formerly predominant religious and moral views, reinforced in
the case of consanguineous marriages by eugenic considerations that may
now be of somewhat diminished weight. The likelihood of genetic defects
occurring from a given sexual union is a matter of statistical probability and,
despite contrary popular opinion, it is far from certain that the progeny of a
consanguineous union will be defective. In fact, the odds are against it. The
medical advice provided to Parliament in support of Bill C-1001, the first
private bill seeking an exemption from the prohibitions, reads in part as
follows:
Each cell in the body has 46 chromosomes (23 matching pairs). When a baby is conceived,
the baby receives one set of 23 chromosomes from one parent, and the other 23 matching
chromosomes from the other parent.
A chromosome consists of thousands of genes, each of which works together with the
corresponding gene on the matching chromosome. It is generally assumed that each
person in the general population carries one or two altered recessive genes. Each of these
genes, on its own (heterozygote) is not harmful, but in a double dose, (i.e., one from each
parent,(homozygote) it may affect development of the child. If a person marries an
introduced into Ontario sixty year-old English divorce and nullity law, notwithstanding that it
had long ceased to be current there. Predictably, while radically different from the century-old
law it replaced, from its inception the present law of divorce has failed to harmonize with the
behaviour and expectations of society.
McGILL LAW JOURNAL
[Vol. 28
unrelated person the chances of them both having the same harmful recessive gene is
small; therefor there is a small risk of their child inheriting the same harmful gene from
both parents and being affected. However, if the parents have a common ancestor.., the
risk to each of their children is higher than if they were not related, but [in the case in
question –
half-uncle and half-niece] is still not a high risk in itself.”‘
Although the increase in the risk becomes progressively more significant with
the nearness of kinship, even where the union is that of siblings, the margin of
safety might be considered by some to be sufficient that the state should not
intervene to prohibit such a marriage solely to prevent the taking of that risk. 33
Indeed, were eugenics to become the preponderant consideration, the results
could be frightening. For instance, certain observable traits in biological
strangers might indicate a far greater risk of their producing defective children
than would be the risk for siblings who do not have such observable traits; yet
‘The Senate of Canada, Standing Senate Committee on Legal and Constitutional Affairs,
Minutes of Proceedings, 22 July 1975, Ist Sess., 30th Par., Issue No. 24, Appendix B.
“I For a more detailed explanation of the factors involved in consanguineous marriages, see
A. Mange & E. Mange, Genetics: Human Aspects (1980), particularly ch. 20, entitled
“Inbreeding and Isolates”. Because the actual number of cases of inbreeding diminishes with
the closeness of relationship, the authors deal at greater length with first cousins. At 476-7, ihey
offer this “prognosis for a first cousin marriage”:
What should be said to first cousins who contemplate marriage and are anxious about
possible harm to their offspring? Popular opinion holds that such children are likely to
suffer malformations or genetic diseases or be less intelligent than their peers. But the data
presented previously suggest that first cousins carry only an additional small per cent risk
of having children with genetic defects of greater or lesser severity. All couples, whether
related or not, face the likelihood (perhaps 2 to 3 per cent) of having a child with a serious
defect, depending on the criteria used to define “serious.” Another few per cent of children
may fall outside a commonly accepted definition of “normal” but not have a serious
defect.
A genetic counselor will certainly obtain a detailed family history from first cousins.
If there is a suggestion of a deleterious recessive allele in one partner or in an ancestor (or
in more than one), a specific probability calculation can be made. The couple can then
consider both the precise risk and the severity of the defect. More often than not, however,
there will be nothing in the family history on which to base a specific calculation. As we
have seen, this is because rare recessive detrimental alleles will usually be hidden in
heterozygous condition generation after generation. Only vague statements of the small
but real increased general risk from first cousin consanguinity can then be made. The
couple will have to evaluate this not very satisfactory information and come to a decision
on their own.
The actual medical history of the proposed parents may reveal a narrower probability factor
upon which they, if not the State, can base a decision whether to have natural children of their
own, or indeed, whether to get married. Should the prohibition against uncle-niece and
aunt-nephew marriages be removed, because couples so related are almost certainly aware that
there is some risk (indeed, most would entertain an exaggerated fear of it), they are likely to
seek advice on the matter. If it were regarded as sufficiently important that they obtain such
advice, consideration might be given by the provinces to making consultation with a genetic
counselor a requirement for such a couple to obtain a marriage licence.
1983]
MARRIAGE PROHIBITIONS
such marriages are not outlawed. Were the prohibitions of marriage to be
based simply on eugenics, the next step would be to establish an arbitrary
probability of risk factor, to require a genetic profile of all applicants and then
to refuse or permit marriages accordingly, regardless of relationship. Com-
pulsory sterilization would not be far behind. 3 4 Nevertheless, there is un-
doubtedly a social abhorrence of parents knowing their children carnally, and
of siblings having such a connection. Both such unions are likely to remain
beyond the pale of acceptability for some time to come. However, there is no
common repugnance to any other unions, and their prohibition must rest on
other principles.
The prohibition of marriage between affines was based on two other
considerations, one of them narrow and long since rejected. The allegorical
identification of the wife with the person of her husband took root in the
common law and led to the conclusion that, the spouses being of one flesh, her
sister, for example, was his sister, her mother his, and vice versa. The
abandoned doctrine of the unity of spouses no longer lends support to the
prohibition of particular marriages. The broader consideration underlying the
prohibition of affinitive marriages was applicable to the prohibition of con-
sanguineous marriages as well. The objectives of exogamy were to promote
new alliances for charitable, religious or political purposes, and to avert
perceived dangers to the moral welfare and harmony of the family. The
following passage from a mid-nineteenth century treatise expresses aptly this
viewpoint:
[I]f a concourse between brothers and sisters might be allowed, or their marriages be
tolerated, the necessity there is that they should be educated together, and the frequent
opportunities they have with each other, would fill every family with lewdness, and create
heart-burnings and unextinguishable jealousies between brothers and sisters, where the
family was numerous; and it would confine every family to itself, and hinder the
propagating common love and charity among mankind, because there would be a danger
of taking a wife out of any family, if women were liable to be corrupted by such vicious
freedoms. This prohibition is likewise carried to uncles and aunts, nephews and nieces;
because, upon the death of a father and mother, they come into the education of the
children loco parentum; and by consequence it was necessary to propagate the same
reverence of blood in such near degrees, that the uncle might have the same regard and
command as a father, and a niece the same duty as a daughter. It was also necessary, in
order to perfect the union of marriage, that the husband should take the wife’s relations, in
the same degree, to be the same as his own, without distinction, and so vice versa; for if
they are to be the same person, as was intended by the law of God, they can have no
‘- In recommending that such conduct between consenting adults no longer be a criminal
offence, the Law Reform Commission of Canada makes much the same point as to the eugenic
aspects of the crime of incest. See Report on Sexual Offences (1978) 27. This particular
recommendation proved quite controversial and failed to make its way into the reforming
legislation now before Parliament.
REVUE DE DROIT DE McGILL
[Vol. 28
difference in relations, and, by consequence, the prohibition touching affinity must be
carried as far as the prohibition touching consanguinity.”-,
Given the extended and extensive families once prevalent, and their
territorial stability, prohibitions extending to the third degree may not seem
untoward. But there is no further interest in compelling persons to marry
strangers, and the advent of the so-called nuclear family in a time ofunparal-
leled mobility has removed any threat to family welfare that the marriage of
affines may have posed. It is obvious as well that the marriage of an uncle and
his niece, or of an aunt and her nephew, carries no threat to the nuclear family,
and such a couple can easily obtain medical affirmation that their union poses
no significant genetic problems. Having been assured as to the eugenic safety
of third degree unions, Parliament has found nothing repugnant in permitting
them in specific cases. Indeed, such marriages seemed so innocuous to our
parliamentarians that not one of them even questioned whether the nation’s
sensibilities might be offended, and three such private bills were enacted with
little debate, congratulations and best wishes being offered the couples even
before final reading of the enabling legislation. Marriage between a man and
his niece is permitted in many countries, 36 and only a chauvinist or a zealot
would treat the marriage of a woman and her nephew differently. Thus, it
seems evident that the present prohibitions,’37 other than those relating to
marriages between siblings and persons descended one from the other, are
now devoid of substantive purpose, and a secular society ought not to adhere
to the restrictive practices and beliefs of any particular religious community.
The final area of reform concerns the effect that adoption should have on
capacity to marry. In Part III, it was submitted that there is no prohibition in
our present law against marriages of persons related by adoption only. The
point is not unequivocal, however, and federal legislation should deal with it
expressly.
In Australia, legislators have chosen to treat the adoptive relationship
exactly as that of consanguinity for the purpose of determining capacity to
marry, and a strong argument can be made in support of this position. If we
are not prepared to allow a man to marry his sister, why should we allow him
to marry his adopted sister? Apart from the eugenics of the union, which may
now be of little significance, are not thie considerations the same? All of the
members of a family are thrown into the closest and most intimate proximity.
It is probably the moral and psychological influences that family members
“I L. Shelford, A Practical Treatise of the Law of Marriage and Divorce (1841) 159. This
same passage is quoted by Finlay, supra, note 6, 30.
“‘See Finlay, ibid., 20.
13′ This assumes that adoption does not presently affect the prohibited degrees of marriage.
1983]
MARRIAGE PROHIBITIONS
thus have on each other, rather than a dread of defective children, that has
occasioned societal taboos against incest. These taboos are natural and are
found throughout history and in every part of the world; they are reinforced by
society through its laws on marriage and incest. The law thus fosters attitudes
that go some way toward diminishing the incidence of sexual abuse amongst
family members. No one will likely be heard to suggest that a father be
permitted to marry his daughter, or a brother his sister. Yet, surely the
adopted child is as deserving of protection within the family circle as is the
natural child. A father or brother should no more be able to take advantage of
an adopted daughter or sister than of a natural one. The family ambiance,
including the inculcation of an aversion to incest, should be the same for the
adopted child as for the natural child. Just as importantly, the assimilation of
the adopted child into its new family should not be endangered by distinctions
based on biological relationships.
On the other hand, it may be argued that the protection extended to an
adopted child by prohibiting that child’s marriage to members of the adoptive
family is simply illusory. Might it not seem absurd to raise the bogey of
fathers and sons abusing the little girls in the family unless restrained by
marital prohibitions? The inability to marry is hardly likely to deter sexual
desires that persons are otherwise inclined to indulge, and if their mutual
affection is sufficiently strong, they will cohabit outside the bonds of matri-
mony. Knowledge that it is a criminal offence may have some deterrent
effect, but it is not likely to be suggested that adoptive relationships be
included in the criminal law definition of incest. Are we then to prohibit these
marriages for the sake of assimilation or symmetry? To sacrifice any freedom
for such purely formal objectives is a difficult matter, and it seems particular-
ly unwarranted in this instance in the light of good adoption practices.
Adoptive parents are urged to make the child aware of its adoption at the
earliest possible moment, and an increasing number of adopted children seek
to meet their natural mothers, and sometimes fathers, when they are old
enough to do so. Furthermore, we are likely to continue to prohibit an adopted
child from marrying his or her natural sibling even though they were raised as
total strangers. Where, then, is the symmetry between them when the adopted
child has two sets of prohibitions and the natural child but one? What is the
point of carrying legal assimilation to such lengths when social agencies are
stressing candid differentiation, not in terms of affection and rights, but in
terms of personal identity? In fact, we neither have nor want complete
assimilation, and there seems to be no compelling reason why the law should
carry assimilation to such lengths as to affect capacity to marry.
It may seem strange initially that, although it precludes the marriage of
an adoptive parent and his or her adopted child, English law, unlike Austra-
lian law, does not prohibit the marriage of an adopted child and the natural
McGILL LAW JOURNAL
[Vol. 28
child of its adopters. There seem to be good arguments either for including
both relationships within, or excluding both from, the prohibited degrees. But
why include one while excluding the other? Perhaps English society is more
apprehensive about the adoptive parent-child relationship, and would view
such a sexual union with some degree of revulsion. The underlying sentiment
may be that “[t]he unity and integrity of the family.., cannot but be disturbed
if either spouse has reason to see in his or her child a possible successor in the
affections, in a matrimonial sense, of the other”.’3″ Another factor that might
be pertinent is the possibility of undue parental influence in procuring mar-
riage, or sexual intercourse through a promise of marriage, with an adopted
child. It may be noted, as well, that adoption is the deliberate choice of the
adopter, but not of the adopter’s children, natural or adopted. Perhaps the
prohibition is within the adopting parent’s expectations; but should his or her
choice affect the siblings’ capacity vis-d-vis each other?
If marriage between persons closely related by adoption is to be prohi-
bited for the sake of family harmony and the protection of infant children,
then other relationships as well should be considered closely. The complete
abolition of affinity carries with it the abandonment of the prohibitions
respecting step-relationships. Such relationships, which are far less common,
are to be distinguished from the usual “in-law” relationships for this reason:
the marriage of one’s child brings one into relationship with someone already
of marriageable age. Thus, to prohibit a marriage between a parent and his
son’s wife, or her daughter’s husband, would not afford the protection to
infants that might warrant prohibiting a marriage between a parent and his or
her own child, adopted or natural. However, where one spouse already has a
child when the parties wed, the other spouse becomes in law (by affinity) that
child’s step-father or -mother, and may be involved in raising that child. For
this reason, it may be urged that the prohibition of such marriages be retained.
Nevertheless, the step-relationship can be distinguished from that of adoption
even for such purposes. For one thing, when the parents of unrelated children
wed, those children do not become related; there is no legal connection
between a man and his step-sister; there is no affinity between a man’s son and
the man’s wife’s daughter, and there has never been any prohibition against
their marriage. More importantly, while adults are seldom adopted, many,
perhaps most, remarriages involve persons whose children are grown up. If
we are to prohibit all persons within a class of relationships from intermar-
rying because there may be some instances in which the welfare of an infant
“‘In Re Woodcock and Woodcock [1957] N.Z.L.R. 960, 963 (C.A.), per Finlay A.C.J.
Professor Finlay, supra, note 6, 26, quotes this brief statement as well and then declares that
“[t]his in fact is what might well be called the modem rationalisation of the old ecclesiastical
rule”. The case concerned the proposed marriage of a parent and a step-child, a marriage now
permitted by Australian law.
1983]
MARRIAGE PROHIBITIONS
might thereby be afforded some small degree of protection, then we ought to
cast the net even farther. The burgeoning phenomenon of stable cohabitation
outside the bonds of marriage involves similar de facto situations. Are the
children involved to go unprotected because the couple raising them are living
together without benefit of nuptials? In fact, such informal unions are now
receiving a degree of legal recognition and protection, and one consort may
even become, in certain respects, legally responsible for the child of the other.
It is highly unlikely that a man will be prohibited from marrying his common
law wife’s daughter even if he “has demonstrated a settled intention to treat
[her] as a child of [his] family” and has become to some extent legally
responsible for her. 39 There seems no more reason why he should be prohi-
bited from marrying his step-daughter.
It is the accumulated weight of various factors that justifies the prohibi-
tion of marriage of close consanguines and persons similarly related by
adoption. In the former case there lingers a doubt as to the eugenic safety of
such unions, which doubt may be strengthened by the fact that the probability
of defective offspring increases in proportion to the nearness of kinship of the
parents. Although the risk becomes greater, that risk may or may not be
considered too high in itself. In any event, the marriage of close consanguines
probably remains repugnant to the vast majority in society. The interests of
family harmony and infant protection are served by the prohibition as well.
These interests, and the objective of assimilating the adopted child within its
new family, are also served by extending the prohibition to adoptive rela-
tionships, particularly that of parent and child. Such a union may also spark a
general sense of aversion. The relationship that might give pause is that of
siblings-by-adoption. A man has never been prohibited from marrying his
step-sister, and there seems little reason to prohibit him from marrying his
adopted sister. Adoption is not a secret, and assimilation can never be
complete. It can hardly be claimed that there is a general sense of revulsion
towards such a marriage; after all, it is permitted in England. The possibility
of such a marriage produced no feelings of revulsion when adoption was de
facto, and the legal document making it de jure is unlikely to spawn such
revulsion. The proposed marriage of siblings-by-adoption did not raise feel-
ings of outrage in Parliament when considered in the context of a private
bill. 4 Indeed, as already seen, the opinion handed down was that the mar-
“‘See, e.g., Family Law Reform Act, R.S.O. 1980, c. 152, ss 1(a), 1(e), 14(b) & 16; Child
Welfare Act, R.S.O. 1980, c. 66, s. 19(1)(e)(iii)(A)(2).
“oBill S-7, An Act to provide an exception from the public general law relating to marriage
in the case of Lucien Roch Joseph Morin and Marie Rose H9lne Morin, withdrawn from
Senate consideration, 22 March 1978. See [1977-78] Debates of the Senate, 3d Sess., 30th
Parl., 506.
REVUE DE DROIT DE McGILL
[Vol. 28
riage was not prohibited in Canada, and the couple in question may by now be
married. Even before applying to Parliament, they had begun to live together
and had had children. Apparently, they wished to marry in part for reconcilia-
tion with their church, which was ready to solemnize such a marriage if the
law of the land allowed it. Why should such a couple be forced to live
“common law”? Surely not because some legislative draftsman wishes to
preserve a certain symmetry between consanguinity and adoption and, being
unable to do so by eliminating the prohibition against the marriage of natural
siblings, insists upon creating a prohibition against the marriage of adoptive
siblings? The danger to family harmony and the risk to the children’s welfare
posed by the possibility of such a marriage seem extremely negligible, and
they are obviously discounted in England. The guiding principle ought to be
to restrict freedom as little as possible, and there are few rights more impor-
tant than the right to choose one’s own spouse.
The prohibited degrees of marriage formed but a very small part of the
matters dealt with in the sweeping family law reforms introduced into Austra-
lia by the Matrimonial Causes Act, 4’ 1959-1966, and the Marriage Act,’42
1961-1966. The former set out prohibitions, which extended to all rela-
tionships up to and including the third degree, arising either by affinity or by
consanguinity, by a relationship of the whole-blood or half-blood, whether it
is traced through, or to, any person of illegitimate birth. Marriages within the
prohibitions were made void ipsojure.’43 The Marriage Act equated adoption
with consanguinity for the purposes of the prohibited degrees. ,44
Although this legislation made no exceptions as of right for a deceased
spouse’s kin, the courts were authorized to dispense from the impediment of
affinity where “satisfied that the circumstances of the particular case are so
exceptional as to justify the granting of the permission sought”. 45 In exercis-
ing the discretion conferred by these short-lived provisions, the position, as
described by Crocket J. in Re an Application by P. & P., was as follows: “If
the conclusion reached is that the circumstances are not such as probably to
promote a sense of outrage or give offence or invoke substantial opposition in
the way that I have mentioned then it would be open to find them so
exceptional as to justify the grant of permission to marry.” 141 In other words,
‘4’ Matrimonial Causes Act, 1959-66 (Corn.).
142 Marriage Act, 1961-66 (Corn.).
41’Matrimonial
Causes Act, 1959-66 (Corn.), ss 18 & 19 and Second Schedule. These
provisions were repeated in the Marriage Act, 1959-73 (Corn.), ss 22, 23 & 24.
‘”Marriage Act, 1961-66 (Corn.), ss 23 & 24. These provisions were repeated in the
Marriage Act, 1961-73 (Corn.).
’41 Matrimonial Causes Act, 1959-66 (Corn.), s. 20(2). This provision was repeated in the
Marriage Act, 1961-73 (Corn.), s. 24(2).
‘(1973) 21 F.L.R. 450,461, [1973] Vict. L.R. 533 (S.C.) [hereinafter cited to F.L.R.].
1983]
MARRIAGE PROHIBITIONS
it seems, the exceptional would be the rule. In commenting on this case,
Professor H. A. Finlay observed:
The case rather suggests that the test of exceptionality is not a satisfactory one. Certainly
Re P. & P. suggests that the test used there was the various considerations spelt out by
Crocket J. The real test, it is submitted, was whether the parties were living together or
were likely to do so even if permission was refused, and the detriment or otherwise to the
institution of marriage if as a result of a prohibition set up by law, and preserved by the
decision of a judge persons were forced (if they did not wish to part from one another) to
cohabit and possibly to procreate without the benefit of legal marriage. So long as our
society remains based. on the assumption that marriage is a desirable and socially
an assumption, one might add, that is being increasingly ques-
important instituti6n –
then any legal impediment to marriage may be regarded as primafacie contrary
tioned, –
to the interests of society. The justification of such an impediment must then be looked for
in the existence of very strong countervailing considerations.’ 7
The Australian experience shows that the conferring of a discretion to
grant dispensations from the prohibited degrees is an unsatisfactory approach
to the problem and that, having decided to allow exceptions –
as the
Parliament of Canada by private acts has done already –
the value of
maintaining such prohibitions becomes highly questionable. As Crocket J.
put it in Re P. & P.: “The stage of social evolution would seem to be near
when even the theoretical justification for prohibition of marriage of affines
will no longer be acceptable.” “I Indeed, in Australia at least, the stage for
clearing away the last vestiges of affinity was set, and the Family Law Act 49
of 1975 swept away not only all the prohibitions of affinity, but the prohibi-
tions against marriages between uncles and nieces, and aunts and nephews, as
well. However, the equating of adoption with consanguinity for such pur-
poses was preserved. 5 For reasons already given, it is suggested that this
innovative legislation should have gone at least one step further by removing
the prohibitions of marriage between siblings-by-adoption. Symmetry be-
tween consanguinity and adoption is not an appropriate end in itself. It would
seem that marriage is not prohibited presently in Canada by reason of an
47Finlay, supra, note 6, 28-9.
‘4Supra, note 146, 460, although he went on to add: “However, if I may venture the
opinion, our society is not yet possessed of the degree of spiritual sterility necessary to permit it
to accept completely the abolition of such an impediment.”
’49Family Law Act, 1975 (Com.), s. 51(3). In Part I, supra, it was seen that the prohibitions
arising by affinity that prevent marriage with a deceased spouse’s kin have already been
removed in Canada except, through oversight, for those of a deceased wife’s aunt and deceased
husband’s uncle. Obviously, this should be corrected. Although it would appear to have been
wrongly decided, the Crickmay case, supra, note 4, undoubtedly expresses the prevailing view
as to what the law ought to be, and the prohibitions should not apply after the dissolution of
marriage by divorce either. Thus, as a minimum reform, Parliament ought to remove all
prohibitions of marriage between affines.
‘0See the Family Law Act, 1975 (Com.), s. 51(4).
McGILL LAW JOURNAL
[Vol. 28
adoptive relationship between the parties, M and any legislation should rein-
force that position. However, if we in Canada are going to move in that
direction at all, we should only go so far as to impose the prohibition upon the
adopted child-adopting parent relationship, 2 as is the case in England. The
prohibitions should also be made to render a marriage void ipso jure.
In reflecting upon these changes in Australian law, Professor Finlay
made the following observations:
[T]he abolition of affinity excited very little controversy in the recent Australian Par-
liamentary Debates. In the Senate, there was no debate on the relevant clause at all. In the
House of Representatives, Mr. W. C. Wentworth moved an amendment designed to
restore to the Bill provisions identical with those on the prohibited relationships in the
Matrimonial Causes Act 1969. Mr. Wentworth, although he did indicate that he was
opposed to abolition, used as his main argument the fact that no adequate consideration
had been given to the implications of the new law by members of the House and that he
wanted members to have an opportunity for further consideration. The amendment was
defeated by 62 to 47. The Attorney-General (Mr. Enderby) speaking against the amend-
ment, referred principally to the absence of eugenic considerations. However, the debate
on this amendment only occupied five pages in Hansard.”‘1
We are living in a time when marriage is not a condition of cohabitation.
Our law on the prohibited degrees does not prevent people from living
together outside the bonds of matrimony, and there is no longer any social
stigma in their doing so. If they wish to get married, why prevent them,
particularly when to do so is only to weaken the institution of marriage by
threatening its relevance? The reforms in question are unlikely to excite any
more controversy here than they did-in Australia. Indeed, were Parliament to
reject such reform, the private acts of exemption it has already passed would
make a mockery of the general law by which everyone else would be expected
to abide. Clearly, the time for reform of this anachronistic law has arrived.
“‘See supra, note 71.
“2A corollary of introducing prohibitions based on adoption is the necessity of dealing with
the effect of subsequent adoption orders. In Australia it is provided expressly that the
relationships created by a previous adoption continue for the purpose of determining marital
capacity. Similarly, in England, one cannot marry one’s former adopted child should a
subsequent adoption order be made. In light of the chaotic state of provincial law respecting the
effect of subsequent orders explained in Part III, supra, that Parliament actually settle this
matter is more important than the manner in which it does so.
53Finlay, supra, note 6, 31-2.
1983]
MARRIAGE PROHIBITIONS
Appendix
Procedure on Private Bills
Raymond L. du Plessis, Q.C.
Law Clerk and Legal Counsel to the Senate
Unlike public bills, private bills are bills that confer specific powers or
rights on particular persons or groups of persons. The petitioner for a private
bill should make sure beforehand that the objective sought can only be
achieved in that manner.
While private bills are passed by Parliament in much the same way as
public bills, the procedure governing their introduction is quite different. The
following is a brief explanation of that procedure.
1.
Notice
Under the rules of both Houses, every application to Parliament for a
private bill must be advertised by a notice stating the nature and objects of the
proposed bill.
The notice has to be published, in English and in French, in the Canada
Gazette at least once a week for a period of four weeks. It also has to be
published the same number of times in the official gazette of the province
concerned and in a leading newspaper with substantial circulation in the area
where the applicant resides or, in the case of a corporation, where the
corporation has its principal place of business. In such cases, publication in
both official languages is necessary only when required by the population
composition of the province or area concerned.
The notice may be signed either by the applicant, whether the applicant
is an individual or a corporation, or by the lawyer acting on behalf of the
applicant.
2.
Affidavit of Publication
After the notice has been published, it is necessary, in accordance with
the rules of both Houses, to submit a statutory declaration as proof of the
publication.
3.
Petition
Since a private bill is for the particular interest or benefit of a person or
group of persons and is solicited by the parties who are seeking its passage, it
is always founded on a petition.
REVUE DE DROIT DE McGILL
[Vol. 28
The petition, drawn up in the prescribed form and stating the broad
purposes and objects of the bill sought to be enacted, must be addressed
separately to each of the Houses of Parliament. It may be in either of the
official languages. It must be signed by the petitioner, and if the petitioner is a
corporation, it must have the seal of the corporation affixed thereto.
In the Senate, the petition may be filed at any time. In the House of
Commons, there is a rule of procedure limiting the time for receiving petitions
to the first six weeks of a new session of Parliament. However, when a bill
based on a petition that was presented after that deadline reaches the House of
Commons, a formal request may be made for the suspension of this rule in
relation to the bill, and such a request is normally granted.
4.
Fees
If a bill is initiated in the Senate, the fee is $200; if it is initiated in the
House of Commons, it is $500. In addition to this fee, there are printing and
translation costs, calculated on the basis of $150 per printed page of the bill
(including the title page). To cover these fees and costs a deposit of $500 is
required prior to the formal presentation of the petition in the Senate.
5.
Parliamentary Agent
Under the rules of the House of Commons, it is necessary for the lawyer
who acts on behalf of the petitioner to become registered as a parliamentary
agent for the purposes of the bill. The registration fee for parliamentary agents
is $25.00 and the forms can be obtained from the Chief, Committees and
Private Legislation Branch, House of Commons, Ottawa.
6.
Sponsors
It is, of course, necessary before a private bill is introduced in either
House, to choose a senator and a member of the House of Commons to act as
sponsors of the bill in their respective Houses. Generally speaking, the
sponsor is from the constituency or province in which the petitioner is located.
It is a well-established Parliamentary practice that Ministers of the Crown do
not act as sponsors of private legislation.
7.
Applicable Rules of Procedure
In the Senate, Rules 51 to 61 and 85 to 102 apply to private bills. In the
House of Commons, the rules that apply are Standing Orders 90 to 116.
8.
Time Involved
It often takes no more than two or three weeks after first reading for a
private bill to be passed by the Senate. In the House of Commons, the time can
sometimes be longer since private bills usually alternate each week with
private members’ public bills, and can therefore only be considered every
1983]
MARRIAGE PROHIBITIONS
second week during the hour reserved for private members’ business on
Tuesday, Thursday and Friday.
Private legislation can sometimes be treated on an urgent basis. In such
cases, the sponsors of the bill should approach the House leaders of the
various political parties in each House in an attempt to obtain their support to
have the bill proceeded with as quickly as possible. With unanimous consent,
the rules of both Houses can be suspended to enable speedier passage of the
bill.
9.
Officials to be Contacted
(1) Parliamentary Counsel to the Senate:
The Parliamentary Counsel to the Senate is prepared to assist and
advise in the drafting of the notice, the petition and the bill. The notice,
before it is published, and the petition, before it is signed, should be
submitted to the Parliamentary Counsel for approval.
(2) Director of Committees, The Senate:
The completed affidavit attesting to compliance with the rules relating
to publication of the notice, the signed petition addressed to the Senate
and the $500 deposit must be deposited with the Director of Commit-
tees, the Senate, before the bill can be formally introduced in the
Senate. Copies of the affidavit and the signed petition should also be
sent to the Parliamentary Counsel to the Senate.
(3) Chief, Committees and Private Legislation Branch, House of
Commons:
The signed petition addressed to the House of Commons and the
completed affidavit should be submitted to the Chief, Committees and
Private Legislation Branch, House of Commons at the same time that
these documents are submitted to the Senate.
