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Published online by Cambridge University Press: 07 November 2014
The British North America Act is usually considered to go no further in guaranteeing fundamental rights than to provide some protection for the French Canadians of Quebec with respect to their peculiar property and social institutions, for Protestant and Catholic minorities in the provision of educational facilities, and for English and French minorities in the use of their languages. Yet subsection 26 of section 91, which authorized the Dominion Parliament and not the provincial legislatures to enact laws on divorce, was no less a protective device. For, as Georges Etienne Carrier pointed out in Parliament in 1870, the Protestants of Quebec would have been unable to secure divorces if the granting of them had been left to the legislatures, since the legislature of Quebec would not have established a court for that purpose or permitted them by special bills. According to Carrier, the bishops of his Church had accepted the subsection relating to divorce because Canada was a mixed community; he hoped, however, that, when Catholics petitioned for divorce, Protestant members of Parliament would remember that the provision was intended for Protestants. The inference was that Parliament was to give different treatment to petitioners of different religious faiths.
1 Sections 92(13), 93, and 133.
2 Canada, House of Commons Debates, 1870, pp. 694–6.Google Scholar
3 Watts and A.-G. B.C. v. Watts, [1908] A.C. 573.
4 For Manitoba the relevant case was Walker v. Walker, [1919] A.C. 947; for Saskatchewan and Alberta it was Board v. Board, [1919] A.C. 956. The divorce law of these provinces was declared to be the English law of 1857 as amended up to July 15, 1870.
5 See MacKinnon, Frank, The Government of Prince Edward Island (Toronto, 1951), 262–6.Google Scholar
6 H. of C. Debates, 1870, pp. 690–1.Google Scholar
7 Ibid., p. 691.
8 Ibid., p. 694.
9 Lest a motion approving the abolition of the New Brunswick Court of Divorce and Matrimonial Causes be adopted in its stead.
10 H. of C. Debates, 1875, pp. 859–60.Google Scholar
11 Ibid., 1888, p. 1414; 1890, pp. 3697–8.
12 Ibid., 1901, p. 1423.
13 Dafoe, J. W., Laurier: A Study in Canadian Politics (Toronto, 1922), 101–2.Google Scholar
14 H. of C. Debates, 1901, p. 1423.
15 Ibid., 1914, pp. 838–40; 1917, p. 4192.
16 Ibid., 1918, p. 2066.
17 Ibid., 1919, pp. 3777–8.
18 15–16 Geo. V, c. 41.
19 See speech of Shaw, J. T., H. of C. Debutes, 1924, p. 487.Google Scholar
20 See argument of W. D. Euler, ibid., 1925, pp. 570–1.
21 Senator Hewitt Bostock was highly indignant at this shabby treatment, but he won no support for his proposal that the Senate should “create a little excitement in the House and in the country” by declining to pass the supply bill until the Commons dealt with the divorce bill. Canada, Senate Debates, 1920, p. 858.Google Scholar
22 Ibid., 1928, p. 673.
23 Ibid., 1929, p. 364.
24 H. of C. Debates, 1929, p. 379.Google Scholar
25 Ibid., p. 1795.
26 The motion for second reading was simply defeated, no amendment being introduced to have it read this day six months. R. B. Bennett recalled that, as a young member, he was curious about the purpose of the six months' hoist. “… now we have the cause explained in concrete form.” Ibid., 1930, pp. 703–4.
27 Ibid., pp. 943–7.
28 Ibid., p. 724.
29 20–21 Geo. V, c. 14.
30 20–21 Geo. V, c. 15. The grounds on which divorces were to be granted remained unaltered.
31 H. of C. Debates, 1930, pp. 1948–50.Google Scholar
32 1 Geo. VI, c. 4. When British Columbia entered Confederation in 1871, it possessed no appellate court, and the B.N.A. Act appeared to prevent the provincial legislature from conferring a divorce jurisdiction on the appellate court which was later established.
33 H. of C. Debates, 1937, p. 1161.Google Scholar
34 In 1931 the Chairman of the Senate Divorce Committee reported with some satisfaction that “business is falling off.” Senate Debates, 931, p. 416.
35 H. of C. Debates, 1940, p. 1602.Google Scholar
36 Ibid., p. 1418.
37 Ibid., p. 1603.
38 Ibid., 1950, p. 3892.
39 Ibid., 1952, pp. 1498–9.
40 Ibid., 1938, p. 3849.
41 Ibid., 1950, p. 1593.
42 See Halifax, Evening Express, 05 6, 1873.Google Scholar
43 H. of C. Debates, 1891, p. 2271.Google Scholar
44 Senate Debates, 1895, p. 269.Google Scholar
45 Ibid.
46 Ibid., 1912–13, p. 200.
47 Ibid., 1910–11, p. 506.
48 Ibid., 1906, p. 499.
49 Ibid., 1909, pp. 420–1. This story, when related many years after the event by Senator William Ross, prompted the following exchange in the Senate:
“Hon. Mr. Ferguson: ‘I hope the champagne was not promised before the Bill was voted on?’
“Hon. Mr. Ross: ‘We did not know anything about the champagne. We gave an honest vote.’
“Hon. Mr. Poirier: ‘And drank all his champagne.’
“Hon. Mr. Ross: “The case was properly dealt with.’”
50 Ibid., 1934, p. 503.
51 Ibid., 1941, p. 125.
52 While subcommittees of three may perform the basic work of the Committee, there are always some absentees.
53 Sericite Debates, 1949, p. 337.Google Scholar
54 Ibid., 1956 (unrevised), p. 590.
55 Ibid., 1894, p. 517.
56 Ibid., 1914, p. 210.
57 Ibid., p. 208.
58 H. of C. Debates, 1924, p. 497.Google Scholar
59 Ward, Norman, The Canadian House of Commons: Representation (Toronto, 1950), 16.Google Scholar
60 H. of C. Debates, 1930, pp. 552–6.Google Scholar
61 See, for example, the issue of Feb. 17, 1956.
62 Such as Fernand Girard (Lapointe). See H. of C. Debates, 1956, pp. 315–16.Google Scholar
63 H. of C. Debates, 1950, p. 3894.Google Scholar
64 Mr. St. Laurent made this suggestion in 1946 (ibid., 1946, p. 2713), but he later denied any intention of sponsoring it (ibid., p. 4261). An apparent impediment to its adoption existed at that time because article 188 of the Civil Code permitted a wife to be legally separated on the ground of her husband's adultery only if he kept his concubine in their common habitation. Since then a wife has been placed on the same footing as her husband in this respect. See Senate Debates, 1956 (unrevised), p. 202.Google Scholar
65 In only one case (that of Eliza Maria Campbell in 1879) has Parliament granted a divorce (really a separation) a mensa et thoro rather than a divorce a vinculo matrimonii. This means that it has provided for alimony and the custody of children in this instance alone. The general opinion is that the regulation of these matters falls within the civil rights jurisdiction of the province.
66 If the first alternative were adopted, it would be applicable only to Quebec, and some other means would have to be found for dealing with the approximately five cases a year which come from Newfoundland. Should politico-religious considerations prevent Parliament from establishing a divorce court in that province, there ought to be no difficulty in adopting the second alternative, or a variant of it, for Newfoundland alone.
67 Unless the officers were permitted to take evidence in Quebec. Yet the present inconvenience and cost of parliamentary divorce does not appear to have a serious inhibiting effect upon Quebec petitioners. In 1951, when the non-Catholic population of Ontario was 7.0 times that of Quebec, the number of divorces was only 7.3 times as great. In 1952 the latter figure was 7.1; in 1953, 10.2; and in 1954, 6.3.