The

Canadian Law Times.

VOL. XXXIII. JANUARY, 1913.

No. 1.

A DIVORCE COURT IN CANADA.

To deal properly with the question, whether we should have a Divorce Court in Canada, or remain under present conditions, requires great consideration, and involves discussion of a very difficult subject. It is perhaps needless to state that what I shall say to you on the matter is entirely my own personal view, and does not in any sense pretend to be the opinion of the Bar Association of Ontario. I have been requested to give an address on the subject from an independent standpoint, and having devoted much thought to the many difficulties in the way of a satisfactory solution of the question, I shall endeavour to place before you in a concise and logical form the reasons which have led me to the conclusions which I propose to present to you. Involving as it does, issues of various kinds-moral, religious, national and individual, the subject will be more intelligently dealt with by eliminating some phases which have their origin in the minds of certain classes, but which do not extend to the general public. The exigencies of modern social life and the conditions of a highly artificial and complex system of human relationship have practically changed in later days the relative positions of men and women. What may have once been cogent arguments in favour of a law preventing divorce under any or all circumstances, may not be at all applicable to our present conditions. We find instances by way of illustration in other branches of the law. Combinations which at one time were altogether contrary to law are now with certain limitations quite lawful. Acts which were at one time harmless, have been made crimes by Statute. Many things which a century ago were looked upon as deeds of evil are now treated as ordinary acts in the lives of respectable citizens, and conversely, the pleasures of the past are in some cases treated

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as sins in the present generation. It is impossible to fix a uniforma continuing standard for many of our motives and actions. It is equally difficult to determine the exact limits of moral conduct. Even in important questions relating to religion, very learned and pious divines have been known to differ. Let us, therefore, eliminate the religious aspect entirely, and this may be done on sufficient grounds, because granting of divorces is an established practice. Whatever our individual views may be, divorces under a recognized practice, and subject to well-defined principles, are granted, and are legal and effective. We must accept this state of affairs as beyond our control. The only enquiry open to us, therefore, is that relating to the methods of obtaining a divorce, and the grounds upon which it should be given. In order to understand the situation more clearly, I propose to deal briefly with one or two matters which lie at the threshold, and to examine the foundation on which the fabric of marriage rests.

It is generally considered that the marriage ceremony is a contract, but in addition to this, a large proportion of the body politic treat it as sacramental in its character, and hold that the marriage tie should not be interfered with under any circumstances. As I have stated, it is interfered with by virtue of legal authority, and a discussion on any other basis is to a great extent purely academic. We must take conditions as we find them. Indeed, the subject itself which I have been asked to discuss implies the continued existence of a right to obtain a divorce, and thereby to sever the marriage relationship. Omitting, therefore, the proposition that marriage is more than a mere contract, and confining ourselves to the contention that it is partly in the nature of a contract, voluntarily entered into between a man and a woman and made legal by a compliance with existing law, the question forcibly presents itself to one's mind in this way: Why should not such a contract be annulled just as any other legal and binding contract may be annulled by a Court of law, if the circumstances and conditions be such as to warrant the Court in so doing? I am not now dealing with the point as to what such conditions ought to be. I shall have something to say about that later on, but for present purposes I ask if any other lawful contract can be voided by legal interposition, why not this one? I shall endeavour to give reasons why it should come within the scope of the law regarding con

tracts generally, but it appears to me that we have first to consider some other elements before answering the question I have just submitted for your consideration.

One element is that marriage is more than a contract. It is a status or condition of civilized social life carrying with it certain limitations and qualifications. When individuals marry, they enter on an entirely different phase of life, and are governed by a new relationship to human environment. The man is no longer a free agent. His actions are governed by new and different principles. He is not at liberty to roam at large. His duties are entirely changed, and his obligations assume a new character. Socially, he is bound to respect his wife, and properly maintain her and his family, or he must lose caste with his fellow-citizens, and may become amenable to the law. His status in certain respects with regard to women other than his wife is absolutely reversed. Even his outgoings and incomings are circumscribed, and he finds that the perspective of his life is shifted by reason of the new condition in which he finds himself. So it is also with his wife. She no longer finds her friends as before, perhaps entirely outside the husband's circle. Her marriage has removed her to another plane, and her outlook is towards a new horizon. Many things she cannot any longer do, and many others she may now do, which were outside the sphere of spinsterhood. Both parties have drawn apart from former surroundings and have formed an entirely new relation. But for the moral law, aided by the law of the country in which they live, they might have acquired this status without the marriage law or ceremony at all. Now, if this condition in which they find themselves becomes intolerable, why should they not be restored to their original position? Does the contract make it any the more imperative that they should be compelled to lead lives of misery, ending in death as the only relief? They may voluntarily separate, why not legally? They changed their status voluntarily, and without any obligation to the law in doing so. The law permits them practically to separate and live apart, as if they were unmarried, except that the restraint of the marriage tie remains, and marriage with another cannot be entered into. In other words, nearly all the practical results of single life with its so-called freedon and relief from domestic trouble and responsibility may be obtained by an agreement between the parties. Morally and socially they are divorced, and yet they must continue to be bound to each other

by a bond which requires in Canada the united power of the Senate and Commons to sever. Regarding such a state of life, it may be fairly argued that having done all the damage possible to the marriage relationship, having destroyed the peace and union of a family, and having opened the door for scandal and endangered the reputation of both parties by making a separation valid and enforceable, the law might go a step further, and as a surgeon with his knife cuts away the diseased tissue to save the limb, so might the Courts be empowered to operate on the moral and domestic relationship of husband and wife, and thereby save whatever of honour, virtue or respect might be found in the wreck of two lives.

But it will be said that the sanctity of the marriage tie must be protected. That this is right and necessary must be freely admitted. But what do you say about a case where the husband or wife, or both, have themselves degraded the marriage obligations, defiled the sanctity of the marriage relation, and rendered life unbearable and disreputable? Take the usual evidence in alimony actions, to say nothing of the graver facts in divorce cases. Open and notorious misconduct of the gravest character; cruelty, contempt and antagonism down to the minutest trifles of life; absolute want of sentiment; constant quarrelling with each other without any regard or consideration; actuated by the coarsest and most vicious feelings, and every day of life treating one or the other of them as entitled to less kindness or sympathy than a person would shew towards his dog or horse; given this not uncommon state of affairs, and then consider that such relationship may and likely will continue through many years until a tribunal beyond the Courts of law cuts the tie and gives relief to one of the parties, and perhaps to both. I do not exaggerate the circumstances to which I have referred. Judges and lawyers know the unfortunate condition in which married life sometimes finds itself. The average citizen knows but little of these matters. What comes to him is only the scandal. The suffering and inner life are not revealed until laid bare in the witness box. And knowing what we do, does it not appear to us as mere words when we hear people argue strenuously that the sanctity of the marriage tie must be maintained at all cost, notwithstanding the fact that the parties bound together by it have so degraded it as to make it the symbol of physical bondage instead of the badge of purity, and the emblem of happiness.