COMMENT
CHRONIQUE DE LGISLATION
The Proposed Divorce Act Reform – A Comment
Julius H. Grey.*
The author examines the proposed reforms
of the Divorce Act with reference to both pre-
vious case law and the general purposes of
divorce legislation. He views the proposals
as an attempt to reconcile the tensions be-
tween conflicting aims and interests and as
providing a moderate solution to difficult so-
cial questions. While the proposals are praised
for the manner in which they streamline di-
vorce procedure and permit the variation of
awards, the author warns that the elimination
of the notion of fault and the introduction of
a mandatory one-yearwaiting period may create
hardship and decrease individual liberty.
L’auteur pr6sente les changements propos6s
A la Loi sur le divorce A la lumi6re de la ju-
risprudence et des objectifs fondamentaux qui
motivent l’intervention 16gislative en matire
de divorce. Selon lui, ces changements furent
concus en tant que compromis au conflit de
valeurs dans notre soci6t6 et pourraient ap-
porter une solution acceptable aux probl~mes
sociaux actuels. L’6largissement de la juri-
diction des tribunaux en cas de modification
de d6crets p6cuniaires et la procedure plus
exp6ditive sont accueillis avec enthousiasme.
Toutefois, l’auteur croit que l’abondon de la
notion de faute et ‘adoption d’une priode
d’attente obligatoire de douze mois pour-
raient cr6er des injustices et porter atteinte A
la libert6 individuelle.
McGill Law Journal 1984
Revue de droit de McGill
*Julius H. Grey, Associate Professor, Faculty of Law, McGill University.
McGILL LAW JOURNAL
[Vol. 29
Synopsis
Introduction
I. Purpose of Divorce Law
A. General Purposes
B. Modern Society
IU. The 1968 Divorce Act
I. The Proposed Divorce Act
A. Explanatory Notes
B. Procedure
C. Grounds for Divorce
D. Jurisdiction
E. Accessory Measures
Conclusion
Introduction
either direct or social –
In almost all human societies, the provisions for divorce are never
entirely satisfactory. If divorce is difficult to obtain, there are inevitably
many permanently unhappy persons, and the society is forced to resort to
coercion –
in order to give effect to its law. If
divorce is very easy to obtain, a certain degree of instability forms around
the very notion of marriage, and it becomes extremely difficult to do eco-
nomic justice to spouses and children or to give citizens the stability which
more repressive societies provide. It is often tempting to adopt a moderate
solution, but this, too, may prove illusory because the equilibrium is a
naturally unstable one, and the society always evolves towards one or the
other of the extremes.
19841
COMMENT
In 1968, Canada enacted such a balanced proposal in the Divorce Act.’
Less than two decades later, a drastic revision has been put before the House
of Commons. Prior to the federal amendments, Quebec adopted but did
not proclaim 2 divorce provisions far more liberal than the federal law in
force. Clearly a major change has occurred in our society when even a
relatively-recent Divorce Act has become an anachronism. What must now
be attempted is an analysis of the purposes of any divorce legislation and
an analysis of the present and the proposed legislation, to see if what we
are offered constitutes an improvement.
I. Purposes of Divorce Law
A. General Purposes
In general, there are three types of goals in divorce Acts:
1) the complete and painless severance of the marriage tie;
2) the economic protection of spouses and children and the achievement
of justice between them;
3) the discouragement of divorce and the strengthening of marriage.
It goes without saying that these purposes can contradict each other.
For instance, the first and the third almost always conflict, because the usual
way of discouraging divorce is to make it more difficult to obtain and there-
fore more painful to those who undergo it. The first and the second principles
often conflict as well, because a just economic solution and generous access
rights to children often make a “clean break” unfeasible. The parties are
forced to remain a part of each other’s lives for some time after the divorce.
Although in modem times conflicts between the second principle, the
pursuit of justice between spouses, and third principle, the discouragement
of divorce, are infrequent, they are theoretically possible, because one way
to discourage divorce is to make it very unattractive both financially and
otherwise. 3
While the principles can push legislators in opposite directions, they
can usually be reconciled to some extent and be made to fit into a reasonably
coherent system. Each society creates its own solution, ranging from total
‘S.C. 1968, c. 24 [now R.S.C. 1970, c. D-8].
2This was due to constitutional reasons. For a brief historical note see the Preamble of An
Act to establish a new Civil Code and to reform family law, S.Q. 1980, c.39.
31t must be admitted that it is already quite unattractive and most people experience con-
siderable economic hardship as a result of it. See infra, note 75.
REVUE DE DROIT DE McGILL
[Vol. 29
reliance on the third principle4 to almost complete freedom.5 The choice of
system will depend, of course, on social and economic conditions and the
culture and religion of each society. One question which remains open is
whether the law is merely a reflection of the society, and therefore must be
amended quickly so as to suit the evolving society as perfectly as possible,
or whether it helps the social conditions and therefore can be used as an
instrument for controlling the direction of change. This second view was
well-expressed by the late Prof. Wolfgang Friedmann:
There is, indeed, considerable justification for the view that the availability of
divorce by consent would tempt married couples to magnify temporary dis-
agreement, discomfort or other difficulties into basic failure. 6
The logical approach would be to put some obstacles in the way of divorce,
not because this would reflect present morality, but as an attempt to influ-
ence future conduct.
While it is not the function of this essay to venture into complex fields
of legal philosophy and to consider the relationship of law and social change,
the author must at once state his agreement with Prof. Friedmann’s view
that, at least to some extent, the law can shape as well as be shaped. It is
therefore extremely difficult to see law as a relatively value-free technique
for expressing the views of any society. This adds a dimension to any pro-
posed reform of divorce, but it does not tell us precisely how to direct divorce
law in any country.
B. Modern Society
It is an obvious truth that, over the past century, western society has
moved towards liberalism in family law and that there has been a very
significant movement in that direction in the last twenty years. Claire
IfHeureux-Dub6 writes:
The most advanced Western Societies –
the United States and Scandinavia,
particularly Sweden – have tended to limit the conditions of entry into mar-
riage to the essentials, while facilitating a free opting-out. It has reached the
point where marriage itself tends to become.. .not dissimilar to defacto marriage.7
4An example would be Quebec law prior to 1968, since article 185 of the Civil Code used
to read: “Marriage can only be dissolved by the natural death of one of the parties; while both
live, it is indissoluble.”
5For a description of such an experiment in Soviet law in the 1920’s, see J. Hazard, W. Butler
& P. Maggs, The Soviet Legal System: Fundamental Principles and Historical Commentary,
3rd ed. (1977).
6W. Friedmann, Law in a Changing Society, 2nd ed. (1972) 252.
7L’Heureux-Dub6, “Family Law in Transition: An Overview” in R. Abella & C. L’Heureux-
Dub6, eds, Family Law [:] Dimensions of Justice (1983) 302.
1984]
COMMENT
Not all societies have moved at the same pace, but the trend is un-
mistakable. Professor Hahlo lists the changes in a number of western ju-
risdictions and then concludes:
The demystification of marriage, which began with its secularization after the
Reformation, has finally reached its consummation. 8
One of the main battles of the change has involved the transition from
divorce given because of the fault of a “guilty” party to divorce without
fault serving to remedy a situation. Once again, Professor Hahlo puts it
aptly:
The pivotal point in the evolution of a new kind of marriage was the shift in
the divorce laws of Western jurisdictions from fault to failure; from the ma-
trimonial offence.. .to irretrievable breakdown….9
The fault principle has been criticized because many felt that “fault”
does not exist in the marriage context and that both partners are usually
somewhat to blame for failure. That this view is rather simplistic cannot
be doubted. In many, perhaps most marriages, it is impossible to determine
with certainty who the guilty party is. l0 However, there are surely many
cases of brutality, callousness and child abuse where guilt can be more or
less accurately attributed: in Woniaczuk v. Zimny,”I Mr Justice Martin
found a factual situation where conduct was so extreme that he could not
ignore it. It is therefore misleading to argue against fault on the grounds
that it never exists. Sometimes it must exist, as in all human relationships.
Another objection can be made on the grounds of relevance. It might
be argued that fault, whether it exists or not, should not influence the out-
come of any significant disputes: the granting of divorce, the assessment of
maintenance or the awarding of custody and access to children. This position
is eloquently expressed by Ryan, who suggests that needs “are not magically
reduced or eliminated by fault”.’ 2
This position is in part embodied in the Supreme Court decision of
Taisky v. Talsky where Mr Justice de Grandpr6 says:
I agree with the trial Judge that a wife who is “well nigh impossible” as a wife
may nevertheless be a wonderful mother. 3
8Hahlo, “The Changing Face of Marriage and Divorce”, in Abella & L’Heureux-Dub6, ibid.,
271,278.
91bid., 273.
‘See Wachtel v. Wachtel [1973] 1 All E.R. 829, 835-6 (C.A.).
I IC.S. (Quebec, 500-12-107815-817), 3 November 1983. See also Kesner v. Kesner [1973] 2
O.R. 101, (1973) 33 D.L.R. (3d) 57 (Ont. H.C.); and Chorny v. Chorny [1971] 5 W.W.R. 732.
(Alta. C.A.).
t2Ryan, Maintenance Obligations in a New Legal Concept of Marriage (1976) 21 R.EL. 1,
10-1.
13[1976] 2 S.C.R. 292, 294; (1975) 62 D.L.R. (3d) 267, 278-9.
McGILL LAW JOURNAL
[Vol. 29
The suggestion is that “conduct”, at least in the marital sense, is not im-
portant. However, relative unimportance is not the same thing as utter
irrelevance. With respect to obtaining divorces and alimentary obligations,
we have already seen the existence of “extreme” cases where it is unfair to
ignore fault.14 With respect to custody, Mayrand has stated:
As a consideration for awarding custody, the conduct of the spouses is perhaps
more relevant, but the importance is measured by its relation to the welfare
of the child.’ 5
All of this would point to a decline in the weight attached to “fault”,
but not to its total elimination. The real reason for the unpopularity of
“fault”, at least in granting divorce, is that it is an easy way of limiting the
number of divorces. Fault is usually precise and clearly described in the
legislation. It is therefore something that must be proved by ordinary legal
means.’ 6 On the other hand, marriage breakdown is a vague concept and
therefore one which judges, wishing to meddle as little as possible with
people’s private lives, will interpret flexibly. It is also far less likely that a
petition will be contested if it does not accuse the other spouse of acts to
which opprobrium may attach. Thus, the evolution from fault to no-fault
is in large measure the same thing as the evolution from difficult to easy
divorce.
We can thus summarize the recent trends in divorce legislation by saying
that the first principle, painless severance of the marriage tie, has gained
considerably at the expense of the third, discouragement of divorce. 17
The second principle, economic protection of the parties, has also been
subordinated to other interests. In particular, it has become fashionable to
view alimentary provisions as temporary until the children have grown up
and the parties adjusted.’ 8 Even with respect to children, there have been
relatively “restrictive” decisions.’ 9 One can explain this tendency by ref-
erence to the fact that a society with large numbers of divorced people
necessarily becomes less generous in its awards, otherwise the economic
effects of divorce become enormous. It is, however, necessary to point out
that the subordination of the second principle to the first has been less
consistent than that of the third. A considerable number of decisions have
Dub&, supra, note 7, 159, 173.
14Supra, note 11.
15″The Influence of Spousal Conduct on the Custody of Children”, in Abella & L’Heureux-
16See the Report of the Special Joint Committee of the Senate and the House of Commons
‘7However, formal support for it is occasionally voiced and is found in the proposed reform.
I8Shustack v. Rabinovitch J.E. 81-942 (Que. S.C.); Levesque-Apestiguy v. Apestiguy J.E. 81-
on Divorce (1967) 103-4.
858 (Que. C.A.).
19Dagenais v. Duceppe J.E. 82-651 (Que. S.C.).
1984]
COMMENT
continued to aim for justice rather than for a clean break.20 Moreover, the
Supreme Court seems to have moved in the same direction. 21
II. The 1968 Divorce Act
When the 1968. Divorce Act was adopted, there was a great divergence
of opinion on the subject in Canada. Quebec and Newfoundland had no
divorce; their inhabitants had to rely on Parliamentary divorce, which was
not easy to obtain and which made no provisions for the parties’ future.
Other provinces had established divorce procedures and many commen-
tators were seeking a liberalization.
Philosophically liberal, the late 1960’s saw the “no-fault” ideology al-
ready firmly established. At the same time, however, there were more people
than today who had strong objections to, or at least reservations about,
divorce.
Many countries were amending their statutes and it was common to
strive for a compromise between the avant-garde position of “no-fault” and
the traditional concept of strictly-proved specific causes for divorce.22 This
solution seemed ideal for Canada. The 1968 Divorce Act combined matri-
monial offences as a ground for divorce (section 3) with no-fault provisions
which were made somewhat unattractive by lengthy waiting periods (section
4). Prof. Ouellette found a common attitude in both cases:
Aussi, entre l’interdiction de divorce et le divorce sur consentement des parties,
il lui [le 16gislateur] a fallu choisir un syst~me interm~diaire, A savoir, le divorce
ne sera accord6 que s’il existe une cause s~rieuse rendant la poursuite de la vie
conjugale sinon impossible, du moins fort difficile. 23
One can agree that both sections 3 and 4 of the Divorce Act defined
“serious grounds”. However, the 1968 Act appears to move from liberal to
conservative positions in a somewhat giddy manner, creating some doubts
as to the presence of a consistent philosophy. “Mental cruelty” is a rather
liberal concept and almost anything might do; but then the legislator restricts
the availabilty of divorce on these grounds by adding the condition that
further cohabitation must be intolerable. Section 4 is intended to provide
grounds for divorce without fault. It does so, and is quite progressive in
including alcoholism and drug addiction as “no-fault” grounds. Then, fault
2 See Pelletier v. L’Esperance, C.S. (Quebec, 500-12-055982-759), 21 May 1980, aff’d C.A.
(Quebec, 500-09-000624-809), 25 October 1980. See also Delagev. Messier J.E. 81-1008,Paradis
v. Blanchard, C.A. (Quebec, 500-09-000807-776), 3 April 1978, and Silverstein v. Silverstein
(1978) 20 O.R. (2d) 185, (1978) 87 D.L.R. (3d) 116 (Ont. H.C.).
21Messier v. Delage (1983) 50 N.R. 16 (S.C.C.).
2-See Friedmann, supra, note 5, 245, for a comparison of Canada and Australia in the 1960’s.
23M. Ouellette-Lauzon, Droit des personnes et de lafamille, 3rd ed. (1980) 354.
REVUE DE DROIT DE McGILL
[Vol. 29
re-appears in the notion of desertion. Section 9 imposes numerous duties
upon the court which make divorce harder to obtain.24 On the other hand,
section 9 also contains provisions which facilitate divorce. 25 Thus, the cha-
meleon side of the law reveals itself once more. Both liberal and conservative
minded Canadians could take comfort in some of these provisions, although
advocates of extreme positions would necessarily be disappointed.
The legislator clearly left much to be determined by jurisprudence. In
retrospect, we can see that the jurisprudence has made the Divorce Act more
liberal than the provisions might suggest. On almost all controversial issues,
the courts have chosen a permissive solution.
Firstly, the provision requiring a trial, and forbidding divorce based on
admission alone, was interpreted so as not to prevent divorce based on
admission before the court.26 This opened the way to quick divorces, not
requiring much proof of offense and not obligating a petitioner who alleges
adultery to produce the co-respondent or another witness.
Secondly, mental cruelty was given a reasonably liberal meaning. The
early cases were at times rather strict.27 Soon, however, courts became more
permissive. For instance, neither the intention to be cruel nor bad faith were
judged essential in a number of cases. 28 Cases treating “change of religion”
as cruelty also had the same effect, since it was impossible to characterize
sincere conversion as either intentional cruelty or bad faith.29 The require-
ment that further co-habitation be intolerable was also wittled down by a
somewhat vague interpretation of cruelty as subjective and dependent on
all the facts of the case.30 Refusal of sexual relations was deemed evidence
of cruelty in some cases, 3′ despite the erudite arguments presented by the
Court in Webster v. McKay.32
On the other hand, not all courts or judges are liberal and the words
of section 3 create limits even for liberal judges, with the result that some
24For example, in s. 9(1) and (2), the duties of the court include holding a trial and checking
whether there was collusion, connivance or condonation.
25For example, s. 9(3)(a) introduces the problem of divorce because of a spouse’s illness and
is thus automatically controversial.
26Giroux v. Ouellette [1972] C.S. 723.
27See Webster v. McKay [1969] C.S. 132 and Lacey v. Lacey [1970] 1 O.R. 279, (1969) 8
D.L.R. (3d) 289 (Ont. H.C.).
28See Ashraff v. Ashraff (1970) 73 W.W.R. 321 (Man. S.C.) and Rodway v. Rodway (1978]
3 R.EL. (2d) 295 (Ont. H.C.).
29See Retzer v. Retzer [1975] 2 S.C.R. 881, (1974) 52 D.L.R. (3d) 159.
30See Aucoin v. Aucoin (1976) 15 N.S.R. (2d) 399, (1976) 72 D.L.R. (3d) 674 (N.S.C.A.).
31See Genest v. Boutonnie [1980] C.S. 679 and Besner v. Brunet [1975] C.S. 712.
32Supra, note 27. See Boivin v. Massicotte [1977] C.S. 997 for the more conservative position.
1984]
COMMENT
petitions are still dismissed. 33 One may legitimately worry whether the suc-
cess or failure of a debatable “cruelty” case is not to some degree the random
result of the schedule of different judges. However, in general, it is not very
difficult to get a divorce on this ground.34
The existing no-fault grounds of divorce have also received a “liberal”
treatment. For instance, the courts have been lenient in the calculation of
time,35 in the decision that one need not find a deserter and a deserted party
in each case36 and in tolerating numerous attempts at reconciliation. 37 Liv-
ing separate and apart was held not to require separate domiciles, 38 and
divorce because of a spouse’s chronic illness was made relatively easy. 39
However, as with mental cruelty, there are occasional refusals of divorce40
and perhaps a small degree of unpredictability in the result.
The liberal trend of interpretation affected other areas of divorce law
not directly connected with availability of divorce. The rules of jurisdiction,
presumably designed to facilitate access to the courts, but at the same time
succeeding in discouraging forum-shopping, were interpreted in a fairly gen-
erous manner.41 Rules governing the extension of delays for appeal from
accessory measures were likewise given a permissive interpreta-
tion.42Moreover, some, but not all judges have agreed to shorten the waiting
period for a decree absolute if there are very pressing reasons. 43
33See Gilbert v. Gilbert (1980) 39 N.S.R. (2d) 241, (1980) 18 R.EL. (2d) 240 (N.S. T.D.) and
Shumnila v. Shumila (1975) 60 D.L.R. (3d) 374 and especially Morin v. Dumont [1981] C.A.
394, 396 where Mr Justice Mayrand expresses some regret in having to dismiss the petition.
See also Ayotte v. Mireault [1978] C.S. 67.
34J. Pineau, La famille (1982) and the authorities mentioned there. See also Besner, Con-
donation as a Bar to Divorce in Canada (1979) 25 McGill L.J. 64 and McLeod, Introduction
to Family Law (1983) 90-1.
35See Gushta v. Gushta (1978) 2 R.EL. (2d) 342 (Man. C.A.) and Blackburn v. Blackburn
[1970] 2 O.R. 417, (1970) 11 D.L.R. (3d) 127 (C.A.).
36See Comeau v. Morrissette [1980] C.S. 675 and Baril v. Trudeau [1977] C.A. 49.
37See Boisvert v. Marineau [ 1974] C.A. 391 and Crawford v. Crawford (1976) 67 D.L.R. (3d)
557, [1976] 3 W.W.R. 767 (Man. C.A.).
Hbert v. Houle [1973] C.S. 868.
38See Rousell v. Rousell (1969) 6 D.L.R. (3d) 639, (1969) 69 W.W.R. 568 (Sask. Q.B.) and
39SeeLachman v. Lachman [1970] 3 O.R. 29, (1970) 12 D.L.R. (3d) 221 (C.A.). This decision
has been almost universally accepted. However, the serious moral implications have occasioned
some protest. See Piette v. Therrien [1976] C.S. 1634. But see also Beaudry v. Ch~nier [1976]
C.S. 1028 where divorce under those conditions is almost turned into a virtue.
40See Provencal v. Leclerc [1974] C.A. 27.
41See MacPherson v. MacPherson (1976) 13 O.R. (2d) 233, (1976) 70 D.L.R. (3d) 564 (C.A.).
42Magnusson v. Magnusson (1975) 65 D.L.R. (3d) 699, [1976] 2 W.W.R. 277 (Alta. C.A.).
43Bitard v. Rizkallah [1981] C.S. 355, [1981] R.P. 408. Mr Justice Reeves presented impar-
tially the authorities both for a hard line and for a permissive attitude before opting for the
latter.
McGILL LAW JOURNAL
[Vol. 29
The 1968 Act can thus be seen as a dynamic or evolving law. The new
reform is not a revolution but rather an acceleration of a social movement
already in progress.
The most convincing justification for an accelertion of social change is
not any intrinsic virtue of divorce on demand, but the practical side of
present divorce practice. The demand for divorce has shortened to five or
ten minutes the time a judge can devote to the average uncontested case.
Except in the most flagrant cases, this is not enough either to detect perjury
or to prevent injustice in accessory measures. In some ways, the law has
become a rubber stamp, and this has not enhanced its prestige or its potential
to improve society.44 In a system where most lies are not detected and most
couples can be divorced on demand, the refusal of a few random petitions
has a flavour of capriciousness or arbitrariness which we like to think is
absent from our courthouses. On the other hand, one cannot entirely dis-
count fears that liberalizing divorce further will simply make it even more
popular and indeed turn it into the natural end of a marriage which death
used to be. It is with this ambivalent starting position that the author pro-
poses to begin analysing the new project.
M. The Proposed Divorce Act
A. Explanatory Notes
The proposed Divorce Act has been published with explanatory notes
which, in paragraph 3, pay obeisance to the principle of the preservation of
the family unit, but which make it quite clear that the purpose of the leg-
islation is to achieve the first two of the purposes of divorce law described
earlier in this essay –
the painless severance of the marriage tie and the
economic protection of the spouses. However, the Explanatory Notes em-
phatically distinguish between the reform and “divorce on demand”, by
pointing out that Canada will still require a one-year waiting period before
granting divorce. This insistence – more ideological than real –
is proof
of the controversy which still exists on this subject and of the fact that large
segments of the Canadian public have not accepted the total dissolubility
of marriage. However, the essence of the Explanatory Notes is found in the
following sentence: “No useful purpose is served by requiring people to
prolong a relationship that no longer works.”
44See Hahlo in Abella & L’Heureux-Dub6, supra, note 7, 274-5.
1984]
B. Procedure
COMMENT
Divorce procedure under the proposed Act is very much simplified and
accelerated. The new section 3 eliminates the need for adversarial confron-
tation by permitting joitit applications for divorce, provided the Rules of
Court allow. 45 The new section 9 eliminates the need for a trial, which many
had held to be an unnecessarily and often humiliating intrusion into the
private lives of the applicants. 46 Section 19(1) in effect delegates this power
to the provinces.
Section 13 ends the two-tier proceeding of obtaining first a conditional
and then a final decree of divorce. Instead, all divorce judgments will au-
tomatically take effect thirty days after their date unless there is an appeal
or unless the court shortens the delay. This eliminates an unnecessary mo-
tion and is therefore unquestionably a welcome change.
C. Grounds for Divorce
Without a doubt, the most radical provision of the new law is the
elimination of the old causes of divorce and their replacement by the single
requirement of marriage breakdown. The notion of fault is eliminated. To
emphasize this, section 12.1(2) forbids the consideration of misconduct in
assessing maintenance. 47 These provisions appear to go too far, because they
create categorical rules which may prove to be very inconvenient in an
unusual case. Persons who consider themselves to have been wronged will
not be content to be informed by a judge or a lawyer that this is juridically
irrelevant and therefore inadmissible; a great deal of dissatisfaction will
inevitably result from this.
The impression that the new Act permits “divorce on demand” is fur-
ther strengthened by the definition of marriage breakdown which makes its
assertion by both parties or one year of separation sufficient evidence of
breakdown (section 2). This is a logical consequence of divorce without
trial, but it makes it almost inconceivable for a petition to be refused on
other than technical grounds.
The only restriction on divorce is the need for a one-year of delay either
through separation prior to the petition or by a waiting period after its
Court. In Quebec, joint applications for separation already exist.
45in effect, this means delegating the decision to the provinces which control the Rules of
460n the other hand, the trial constitutes the one opportunity, however remote, for an in-
47Presumably, one can still look at it for determining disputes about children.
justice to be detected.
REVUE DE DROIT DE McGILL
[Vol. 29
presentation (section 3(3)).48 This requirement may not be very onerous if
the earlier jurisprudence on living “separate and apart” under the same roof
is deemed to apply.49 However, the delay can prove to be very unfair if it
is essential that one of the parties remarry at once. It is true that legitimacy
of children is no longer a burning concern 50 and that this decreases the
urgency with which most marriages must be contracted, but many difficulties
can arise if a woman is still married to her previous spouse when her child
is born.5′ Moreover, other reasons can make a quick second marriage es-
sential. Immigration is an obvious example, since immigration officials do
not permit a Canadian still married to someone else to sponsor a future
spouse.52 It seems, therefore, that requiring a delay of one year in every
case can cause grave injustice in some instances.
We must note, in considering the new causes of divorce, that condon-
ation and collusion disappear from our law. However, the right to a ninety-
day trial reconciliation is preserved in section 3(4).53 A new and striking
feature is the imposition of an obligation to pursue a divorce with due
diligence, imposed on parties by section 4. One can appreciate the need for
diligence in any legal proceeding, but it is not easy to see its special function
here. Presumably, what was intended was that the reform have the same
effect as the earlier condonation provisions. That is, a year’s separation
should not serve as an “eternal” ground for divorce if the marriage should
sour many years later. It is open to question whether this phrasing achieves
a reasonable result.
D. Jurisdiction
The complicated rules of jurisdiction involving both domicile in Canada
and residence in a province are to be repealed. Instead, one year’s ordinary
residence in a province is to suffice. Obviously, the spectre of forum-
shopping and of Canada becoming a divorce haven has proved less com-
pelling than the fear that some persons will, because of the quirks in the
definition of domicile, be deprived of an opportunity to obtain a divorce.
48The phrasing seems to preclude a divorce where six months of the separation take place
before the presentation and six months afterwards. However, a liberal construction may cover
this apparent oversight.
49Supra, note 38.
50Indeed, it is a matter of no legal importance.
5’The need for disavowal arises.
52
well be intentional.
0f course, given the general restrictive spirit of our immigration legislation, this effect may
53The new provision is clearer than was the old in specifying that there can be as many
attempts as the spouses wish so long as the aggregate does not exceed ninety days.
1984]
COMMENT
Quite clearly, this means that some persons who have no intention of
foreign students54 and foreign diplomats for in-
remaining in Canada –
stance – will benefit from these provisions. Inevitably, it also means that
stricter foreign jurisdictions may deny recognition to a Canadian decree.
These consequences are not shortcomings of the reform. It seems reasonable
to extend the protection of our courts to persons residing here for consid-
erable periods and not to worry about the laws or the moral ideologies of
their homelands.
Depending upon the definition of “ordinary residence” adopted by the
courts, there may be deserving persons still unable to get a divorce. Canadians
residing abroad for a significant length of time, even on official business,
may find themselves excluded. It would be irrational to allow Canadian
citizenship alone to be sufficient connection for a Canadian divorce. How-
ever, some deemed Canadian residence for Canadian diplomats and ser-
vicemen could have been spelled out. It is very likely that the courts will
do this without further instruction.
Section 6 extends recognition – whatever other Canadian rules for
recognition may be 55 –
to divorces granted abroad on the basis of one
year’s residence. It is logical for us to accept divorces where the other country
applied a rule identical to ours. Section 6 explicitly preserves all the existing
rules of recognition and well tend to liberalize Canadian private interna-
tional law.
E. Accessory Measures
The second principle of divorce legislation –
that of creating justice
does not seem to be a major object of the reform.
between the parties –
The existing rules are substantially reproduced. However, the provisions are
clarified, both by textual improvements, that- is removal of unfortunate
differences between the French and English texts, and by section 12.1, which
spells out the ideology of maintenance decrees. This section is so important
that it is reproduced here:
12.1(1) An order made pursuant to section 10 or 11 for maintenance shall,
whether or not it is varied pursuant to subsection 11(2), be designed, in so far
as is practicable, to
54
1n the past, foreign students were ineligible. See Cohen v. Cohen (1978) O.R. (2d) 738,
(1978) 5 R.RL. (2d) 189 (Ont. H.C.).
55See Bate v. Bate (1977) 16 O.R. (2d) 763, [1978] 1 R.EL. (2d) 298 (Ont. H.C.).
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(a) cause the spouses to share any economic consequences, to either spouse,
of the care of any children of the marriage;
(b) recognize the economic advantages and disadvantages, to the spouses, that
have arisen out of the marriage and those resulting from its breakdown;
(c) relieve any economic hardship that the court exercising jurisdiction to make
or vary the order determines to be grave;
(d) assist adjustment to economic self-sufficiency by either of the spouses within
a reasonable time of the making of any such order for maintenance of the
spouse.
The legislator does not unequivocally side either with those for whom a
clean break between ex-spouses is the ideal, in which case alimony is only
a temporary solution and those who believe in a more active intervention
in the affairs of ex-spouses in order to protect the weaker party. Both po-
sitions are reproduced and the courts are given the task of assigning relative
weight to them.56
The new section 12.1 also allows compensation for “advantages and
disadvantages” of the marriage. This seems a departure from the previous
view that the Divorce Act cannot redistribute property, for example through
a lump sum payment, but serves only alimentary purposes.57 The divorce
law will now be in a position to prevent unjust enrichment between spouses,
much as the Civil Code of Quebec purports to do through its “compensatory
allowance”. 58 In addition, compensation will be possible for such things as
the loss of a widow’s pension through subsequent marriage or the loss or
gain of professional skills on account of the marriage. 59 It is possible that
section 12.1(6) will palliate to some degree the fact that the courts can no
longer punish misconduct through alimony or lump sums. Whether or not
this is so, section 12.1(2) which forbids the consideration of conduct, seems
56So far the courts have had no consistent approach. See especially Marcus v. Marcus (1977)
30 R.EL. 240, [1977] 4 W.W.R. 458 (B.C. C.A.); Goldstein v. Goldstein (1976) 67 D.L.R. (3d)
624, [1976] 4 W.W.R. 646 (Alta. C.A.); Rochefort v. Blanchard [1978] C.A. 382; Shustack v.
Rabinovitch supra, note 18. However, the new Act does propose to repeal Messier v. Delage,
supra, note 21, by permitting a judge to determine a time beyond which no further pension
will be possible (ss 11(3) and 12(6)). This is either a move towards the “clean break” theory
designed to lessen court interference in the parties’ future affairs, or merely the creation of
another option, thus increasing the portfolio of discretionary powers possessed by the court.
Levesque-Apestiguy v. Apestiguy, supra, note 18; Dagenais v. Duceppe, supra, note 19.
57McConnell v. McConnell (1976) 57 D.L.R. (3d) 268 (N.B. C.A.); Krause v. Krause (1975)
64 D.L.R. (3d) 352, [1976] 2 W.W.R. 622 (Alta. C.A.); D&arie v. Lefebvre [1977] C.S. 703;
Lebrun v. Rodier [1978] C.A. 380; Hanna v. Lafaire [1979] C.S. 998; Laflamme v. Laplante
[1981] C.S. 1031. However, see Spracklin v. Spracklin (1978) 4 R.EL. (2d) 304 (Nfld. TD.).
58See art. 559 C.C.Q. See also Connell-Thouez,” Matrimonial Property Regimes in Quebec
before and after the Reform of 198 1: Adapting Traditional Institutions to Modern Reality” in
K. Connell-Thouez & B. Knoppers, eds, Contemporary Trends in Family Law: A National
Pespective (1984) 27.
59An example would be where one of the spouses has worked to put the other through medical
school.
1984]
COMMENT
to be a surrender to dogmatic moral relativism which is most regrettable.
Conduct should not be the predominant issue and it is completely incom-
prehensible that it should carry some weight in marginal questions.
Insofar as custody and support of children are concerned, section 12.1(3)
consecrates the universally accepted principle that the interest of the chil-
dren is the primary issue. 60 Nothing will change in this regard.
The principle of equality of parents (sections 12.1(1) and 12.1(3)(a)) is
perhaps more novel, but here, too, no one is likely to dispute the result.
The same can be said for the principle of giving siblings access to each other
(section 12.1(3)(c)).
Where the Act departs radically from past law is in providing that a
third person may, with leave of the court, apply for custody. Until now, the
spouses were the only proper parties to a divorce petition and no power
existed to grant custody or visiting rights to a third party. 61 Although the
law did not give rights to third parties, courts have often found ways of
achieving the same effect in the interest of the child.62 It is therefore grat-
ifying to see that the law will now provide a clear and simple procedure for
a remedy which is so indispensable that means are found to provide it even
when it does not exist in written law.
Section 12.1(3)(d) provides authority for the court to represent the chil-
dren in cases where representation is needed. There are many difficulties
with such representation. Who is to instruct counsel as to the position to
take? What weight should be accorded to counsel’s views? It is perhaps these
problems that led some courts to conclude that separate representation should
be the exception, not the rule. 63 Some of these objections were answered in
G. v. P 64 by Quebec’s Tribunal de la Jeunesse. Nevertheless, it will not and
probably should not be the result of the reformed Divorce Act that separate
representation becomes standard procedure.
60Thlsky v. Talsky, supra, note 13, MacDonald v. MacDonald [1976] 2 S.C.R. 259, (1975)
62 D.L.R. (3d) 301, Taillon v. Donaldson [1953] 2 S.C.R. 257.
61The Civil Code of Quebec in article 659 now recognizes grandparents’ access rights.
62See Taillon v. Donaldson, supra, note 60; Hubert v. G6linas [1965] C.S. 35; Goulet v.
Chartier [1977] R.P. 88 (Que. S.C.); Gyore v. Gulyas [1974] C.S. 146; Perreault v. Demers
[1974] C.S. 530; Pekrul v. Minister of Social Services [1981] 7 Sask. R. 212, (1981) 17 R.EL.
(2d) 370 (Sask. Q.B.); Haskell v. Pinsonneault [1982] 34 O.R. (2d) 571, (1981) 127 D.L.R. (3d)
641 (Ont. H.C.); Miliziane v. Vachon C.S. (Montreal, 500-04-000347-832) 18 April 1983; More
v. Primeau (1978) 2 R.FL. (2d) 254 (Ont. C.A.).
63J. v. J. [1978] 1 W.W.R. 8 (Man. C.A.).
64G. v. P. [1979] T.J. 2001 (Que. Trib. de la jeunesse).
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It is disappointing that no change in the definition of “child” or “child
of the marriage” is contemplated. The very low cut-off age of sixteen 65 seems
an obvious candidate for modification.
A striking improvement included in the proposed reform concerns the
variation of awards. Under the 1968 Act, only the court which made the
order could vary it, even if all the parties reside elsewhere at the time of
the petition. 66 This was clearly unfortunate. Now, a court of the jurisdiction
in which either party resides will be able to modify an order, subject to its
discretionary right to apply the doctrine of forum non conveniens (section
11(4)).
We conclude that the fundamental philosophy of accessory measures
has not changed, despite some stylistic improvements, 67 the partial repeal
of Messier v. Delage,68 the totally unjustifiable exclusion of all consideration
of conduct from the fixing of alimentary pensions, the introduction of pow-
ers to redistribute capital and the creation of third party rights with respect
to children. The legislator is not moving either in the direction of the “clean
break” or of greater attention towards the socio-economic effects of divorce.
Rather, the law will be left free to continue to evolve in the light of the
experience of the courts and moral climate prevalent in the community.69
Conclusion
In evaluating a new law, two types of consideration must be taken into
account.
First, one must evaluate technically the language of the statute. Does
it achieve its purposes? Apart from a few questions raised above, there are
no evident errors of drafting. Of course, such errors usually come out only
in practice. The legislator, therefore, can take small comfort in the fact that
no manifest mistakes have come to light.
65This is subject, of course, to some exceptions.
66See Rodness v. Rodness [1976]3 W.W.R. 414 (B.C. C.A.). The Quebec Court of Appeal
tried to overcome this harsh rule in Stein v. Phillips [1976] C.A. 150, but this case had a formal
election of domicile in Quebec.
67Some of these improvements are questionable. Why replace the word “upon” in s. 11,
which has been defined by the courts (Zacks v. Zacks [1973] S.C.R. 891, (1972) 29 D.L.R.
(3d) 99; and Vadeboncoeur v. Landry [1977] 2 S.C.R. 179, (1976) 68 D.L.R. (3d) 165), and
replace it with “on”, which is an unknown quantity? (The French version remains unchanged.)
Given the presumption that the legislator does not speak in vain, courts may have to strive
to find a perfectly reasonable solution.
68Supra, note 21.
69It is important to remember that the DivorceAct is only part of the law on these questions,
Each province has additional laws which are often of equal importance.
1984]
COMMENT
Second, we must evaluate the purposes and desirability of the law. Here,
it is difficult to avoid mixed and indeed contradictory feelings about the
proposed legislation.
The Divorce Act as it may read in 1984 is the final consecration of the
dissolubility of marriage at the will of the parties or even one of them.
Everyone seemed to recommend this;70 it became reality even without re-
form because of the unwillingness of many judges to interfere and the im-
possibility of doing so in the short time allotted to each case. In a world of
permissive sexual attitudes, equality of the sexes, and stress on the right of
each person to the pursuit of his own happiness, who could possibly want
the law to create serious obstacles to divorce?
It is true that the majority of Canadian, or at least sizable minorities,
are not as “progressive” as the promoters of the present reform. There may
well be a “moral majority” or “moral minority” living in a world unchanged
from 1950 and reacting against the social changes around them. It is for
them that the formal adherence to the principle of family unity continues
and that the one-year delay will now be imposed on all persons seeking
divorce. However, it is difficult to measure the strength of this “backlash 71
and even more difficult to sympathize with its illiberalism and its rigid moral
dogmatism.72 The misgivings which this author feels about the proposed
divorce law must be based on considerations other than some instinctive
rebellion against the moral changes in the past twenty years. 73
Throughout the years during which the 1968 Act has been in operation,
fears were voiced about its effects, especially on children. In Hoyt v. Hoyt,
Mr Justice Barry wrote:
Contrary to the trend to making divorce easier, I have come to the conclusion,
primarily in the interests of the children involved, not the adults, that if the
parties had to wait five years.. .the children would be better protected and the
tax-payers save much money.74
70The Law Reform Commission did, in its 1976 Report.
71See Hahlo in Abella & L’Heureux-Dub6, supra, note 7, 274-5.
“aMoral majority views often come in a package with capital punishment, narrow religious
views, opposition to immigration, anti-feminism, and opposition to the welfare system –
positions with which this author at least has no common ground.
73Indeed, fear of the back-lash (as opposed to sympathy for it) can be a very good motive
for caution.
74Hoyt v. Hoyt (1978) 20 N.B.R. (2d) 430 (N.B. S.C.), (1978) 34 A.P.R. 430.
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The Honourable Judge was referring to the notorious fact that most
Canadians cannot afford two families and that the fact that they have them
impoverishes both. In Knight v. Heafy, Mr Justice Frenette put it as follows:
la s6paration des 6poux entraine g6n6ralement une augmentation du coat et
cons6quemment une diminution du niveau de vie ….
It follows, firstly, that divorce without trial is likely to minimize the
effect of divorce on the more selfish spouse. 76 Second, and more contro-
versially, one may question whether the absolute availability of divorce
without even the shadow of the possibility of denial will not encourage
divorce and thus increase the disadvantages for children and spouses. 77
75
That impossible marriages should end and the parties be permitted to
rebuild their lives is obvious. This author would go so far as to say that a
society which has no divorce does not fully respect human liberty or dignity.
But this does not mean that in every case, divorce must be granted, whatever
its consequences or its causes or even without inquiry as to the causes.
Indeed, automatic divorce may decrease individual liberty by decreas-
ing the choices available to individuals. In Pare v. Bonin,78 Mr Justice Beetz
writes about the need to retain a distinction between marriage and con-
cubinage, not so as to stigmatize the latter, but rather to maintain the special
place of marriage in our society. In a world which does not discriminate
against persons living together, it is obvious that individuals have an option
–
a “free” cohabitation based on continuing and perpetually revocable
consent with few longlasting effects 79 or a permanent union with far greater
ramifications. By making marriage too easily dissoluble, the distinction may
become obscure or be limited to property questions. The suggestion is not
that marriage be indissoluble but that some cause be required for its ter-
mination and that the courts retain the right to deny a petition in appropriate
cases. The one-year separation seems insufficient to maintain the notion of
a union intended for life and different from cohabitation. The new law may
therefore further weaken the hold that marriage and traditional monogamy
have on our society and thus eliminate a significant choice that our citizens
have. Liberty would be the less and not the more for the reform.80
75Knight v. Heafy J.E. 81-858 (Que. S.C.).
76Presently, the court may still catch a few of these cases.
77It must be remembered that what the opponents of divorce feared in 1968 –
the opening
of the floodgates –
came to pass. The proponents of divorce now urge further liberalization
to deal with the quantity of divorces. Of course, it is simplistic to believe that the increase in
divorce was entirely, or even largely, caused by changes in the law.
78[1977] 2 S.C.R. 343, (1976) 23 R.FL. 231.
79This does not include the one indisputable long-lasting effect –
80The possibility that extreme liberal positions may diminish freedom while seeming to
enhance it is not limited to divorce. The subject is too complex for this essay, but its critical
importance in the philosophy of legislation cannot be ignored.
children.
1984]
COMMENT
The proposed reform also provokes misgivings of another kind. The
one-year waiting period may be unfair in some cases and may also work to
limit human freedom and to increase suffering. In divorce law, categorical
rules of this kind are too drastic and the injustice often affects the weakest
and the most innocent persons. One can understand the hesitation to grant
a judicial discretion to dispense with the waiting period. Given past trends,
this would, within a few years, mean divorce on demand without any barrier
at all. The solution was surely to preserve certain specified causes which
would justify immediate divorce.8′ This, however, would have seemed too
close to the 1968 law for the advocates of reform to be satisfied.
Finally, the strident amoralism of section 12.1(2) is totally unacceptable.
To say that misconduct of spouses is irrelevant is not liberal. It is rather
the imposition of a particular morality associated at times with liberalism. 82
The result is once again the diminution of our liberty. It would make far
more sense to give courts discretion in this regard.
However, it is impossible to condemn unequivocally the proposed re-
form. It has the attraction of honesty. It would do away with meaningless
and often contrived trials which dishonour justice. It would allow that which
really exists to be applied by the courts. If Victorian marriage is no longer
a way of life for most of us, why keep it on the statute books? No divorce
law forces those who wish to stay together to go apart. Why not make the
other free and put the stress on freedom and continuing consent as the basis
of true marriage?
No human society has developed a completely satisfactory family law.
Doubtless, in several years, we shall be reforming the 1984 Act. All the
positions and all the ambivalence of this essay will still be with us. It is to
be hoped that in the interval, we devote some attention to certain theoretical
questions which are rarely aired in full. In particular, the relationship be-
tween the law and society (how do they influence each other?), and between
family law and individual liberty should be studied and debated so that the
future reformers are fully equipped to deal with this delicate subject.
8’The causes would either refer to conduct (for example, adultery) or to circumstances of a
human nature rendering a delay manifestly unfair.
82That John Stuart Mill did not intend anything like this is clear from a reading of On
Liberty. The liberal intolerance on this type of subject is cleverly satirized in Tom Stoppard’s
play Junpers (New York: Grove Press, 1974).
