The Canadian Divorce Law of 1968 and Its Provisions on Conflicts

Abstract

In Canada, legislative authority over Marriage and is conferred upon the federal government by the British North America Act, 1867.' Prior to 1968, there had been only limited exercise of this constitutional power and for many years the divorce laws of Canada continued without comprehensive review. The result was a patchwork of laws derived from pre-Confederation English and federal statutes. In Newfoundland and Quebec the courts did not possess jurisdiction to grant a decree of divorce. For persons domiciled in these Provinces the only method of obtaining dissolution of marriage was by a private Act of the Federal Parliament at Ottawa, a procedure also available to persons whose domicile was uncertain. Prior to 1930, this too was the position in Ontario. By the Divorce Act (Ontario), 1930,2 however, English law as that law existed on the 15th July, 1870 was introduced into this Province. In substance, therefore, the divorce law of Ontario rested upon the terms of the English Matrimonial Causes Act, 1857.3 This English statute also provided the foundation of the divorce laws of British Columbia, Alberta, Saskatchewan, and Manitoba. The disadvantageous position in which a wife-petitioner was placed, the so-called double-standard,4 was, however, removed by federal legislation in 1925.5 Pre-Confederation statutes were the source of the divorce laws of New Brunswick, Nova Scotia, and Prince Edward Island. In essence, adultery was a ground for divorce in all provinces, cruelty was a ground for divorce only in Nova Scotia and desertion, as a ground for divorce, did not exist in any province.6