CHAPTER XXVI.

DOMINION OF CANADA AND NEWFOUNDLAND.

The Dominion of Canada now consists of the Provinces of Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan, together with certain territories not as yet included in any Province.

The Canadian Constitution, similar in principle to that of Great Britain, is embodied in the British North America Act of 1867 (30 Vict. c. 3).

This act, which was passed by the Imperial Parliament, created the federation now styled the Dominion of Canada, and assigned to the Dominion Parliament power "to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this act assigned exclusively to the Legislatures of the Provinces."

One great distinction between the Canadian Constitution and the Constitution of the United States of America is that powers not specifically granted to the Provinces are reserved to the Dominion Government, whereas under the American Constitution powers not specifically granted to the Federal Government are reserved to the States, or to the people.

Marriage and divorce are specifically set forth in the Canadian Constitution as a branch of legislation exclusively within the control of the Dominion Parliament, but although forty-three years have passed since the act became operative the Dominion Parliament has so far enacted only two statutes concerning the subject. The first act (May 17, 1882) legalized the marriage of a man with his deceased wife's sister, and the second (May 16, 1890) legalized the marriage of a man with his deceased wife's sister's daughter.

The Dominion of Canada shares with Ireland the distinction of having no law permitting a judicial decree of divorce.

However, by one clause of the British Act of North America there was preserved in full force the laws and judicial system of the several Provinces until the laws should be repealed or the courts abolished by competent authority.

Consequently, four of the nine Provinces, namely, British Columbia, New Brunswick, Nova Scotia and Prince Edward Island, have their individual laws of divorce and divorce courts.

Of the eight millions of people living in Canada six millions have no possibility of divorce except by a special act of the Dominion Parliament.

The Dominion Parliament has power to grant an absolute divorce for any cause, but it never has done so except for adultery.

Divorce petitions or bills are, as a matter of practice, introduced first in the Senate, where there is a standing committee to deal with them.

For the Provinces of Ontario, Quebec and Manitoba, and the Northwest and other Territories, the Dominion Parliament is the only authority which can grant an absolute divorce.

MARRIAGE.--Legislation concerning the formal requirements and solemnizations of marriage is still within the exclusive authority of the legislatures of the Provinces.

As to the impediments which arise from blood and marriage, the law throughout the Dominion of Canada is in agreement with the law of England, which is based upon the 18th chapter of the Book of Leviticus.

It is expressly provided by the act, 28 and 29 Vict. c. 64, that every law made or to be made by the legislature of any British possession, "for the purpose of establishing the validity of any marriage or marriages contracted in such possession, shall have and be deemed to have had from the date of the making of such law the same force and effect for the purpose aforesaid within all parts of Her Majesty's dominions as such law may have had or may hereafter have within the possession for which the same was made. Provided that nothing in this law contained shall give any effect or validity to any marriage unless at the time of such marriage both of the parties thereto were, according to the law of England, competent to contract the same."

VALIDITY OF FOREIGN DIVORCES.--When the validity of a foreign divorce is considered by the Canadian courts the judges apply the strict rule of refusing to recognize a decree of divorce pronounced by a court within whose jurisdiction the parties had not a bona fide domicile.

The courts also hold that a marriage celebrated in Canada between persons domiciled there is in its nature indissoluble except by death or by the act or decree of the Dominion Parliament, or a Canadian court of competent jurisdiction, and that no judgment of a foreign court dissolving such a marriage will be recognized in Canada.

This rule invites, and has received, such severe criticism for its injustice that it cannot long be maintained by such tribunals of learning and integrity as the courts of Canada.

Suppose a Canadian man and woman domiciled in Toronto should intermarry there, and afterwards acquire a joint domicile of twenty years' duration in New York City. If, after that period, the wife should obtain in the courts of the State of New York a divorce on the grounds of her husband's adultery, and should remarry another man, upon her return to Canada it would be manifestly unjust to treat the divorce and second marriage as null and void.

Some of these days the Canadian courts will be called upon to consider the legal effect of a divorce obtained upon statutory grounds in England in a suit between two persons who were married in Canada and at the time of such marriage were domiciled in that country. Perhaps then the rule we have mentioned and criticised will be relaxed.

The Island and Colony of Newfoundland, although a British colony in North America, is not yet incorporated as a part of the Dominion of Canada. It has its own governor, legislature and judicial system entirely separate from the Dominion and its own marriage and divorce law.

The jurisdiction of Newfoundland extends not only over the island by that name, but also over the whole of the Atlantic coast of Labrador.

AGE REQUIREMENTS.--The legal age for marriage in British Columbia, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Quebec, the Northwest Territories and Newfoundland is fourteen for a male and twelve for a female. In Ontario both males and females must be at least fourteen years of age.

PARENTAL CONSENT.--In British Columbia, Manitoba, Nova Scotia, Prince Edward Island, Quebec, the Northwest Territories and Newfoundland parental consent is necessary for both males and females under twenty-one years of age.

In New Brunswick and Ontario parental consent is required for males and females under eighteen years of age.

In British Columbia an appeal may be taken to the courts if consent is refused by parent or guardian.

CELEBRATION.--Marriages may be solemnized by duly qualified clergymen of every religious denomination, or by a judge, justice of the peace or other magistrate.

Unless banns are published a license must be produced for each marriage, and can only be obtained from the proper local authority upon affidavit or declaration of one of the parties to the intended marriage, showing that no legal impediment exists and that the proper consents have been obtained.

The competency of a Protestant minister to marry two Roman Catholics in the Province of Quebec was called in question by the leading case of Delphit v. Cote, reported in the Quebec Reports, 20 S. C. 338. The plaintiff, who had been baptized as a member of the Roman Catholic Church, was married to the defendant, who, at the time at least, professed the same belief, by a minister of a Protestant denomination, by virtue of a license issued in due form. Subsequently an ecclesiastical court of the Catholic Church declared the marriage null on the ground that two Roman Catholics could only be married by a Roman Catholic priest. Upon appealing to the civil court for an annulment of the marriage because of the ecclesiastical decree, it was held that the ecclesiastical court was entirely without jurisdiction and that the marriage was in all legal respects good and binding.

MARRIAGES WITH INDIANS.--A Christian who marries an aboriginal native or Indian cannot exercise in Canada the right of divorce or repudiation of his wife at will, although following the usages of the tribe or "nation" to which his Indian wife belongs such divorces and repudiations are customary and regular.

ANNULMENT OF MARRIAGE.--In any of the Provinces, or in Newfoundland, the courts may annul marriages on the ground of fraud, mistake, coercion, duress or lunacy.

FOREIGN MARRIAGES.--The courts of Canada and Newfoundland recognize a marriage concluded in a foreign country as valid if it was performed in accordance with the laws of the foreign country, if each person was competent to marry, according to the laws of the country of his and her citizenship, and if the marriage was not in violation of the general laws and usages of Christendom.

ONTARIO.--The High Court of Justice in this Province has jurisdiction where a marriage correct in form is ascertained to be void _de jure_ by reason of the absence of some essential preliminary to declare the same null and void _ab initio_; but nothing short of the most clear and convincing testimony will justify the interposition of the court.

As we have observed before, there is no divorce court in the Province.

Every married woman is entitled to hold and alienate as her separate property all wages and profits acquired by her in any separate occupation which she may conduct on her separate account.

QUEBEC.--This Province, which is composed largely of Roman Catholic inhabitants of French ancestry, treats marriage as a religious contract.

The system of jurisprudence in Quebec is an admixture of the Code Napoleon, the _coutume de Paris_, and the common law of England. The provisions of the Civil Code and Code of Civil Procedure of the Province are largely of French origin.

Marriage must be solemnized openly by a competent officer recognized by law and must be preceded by the publication of banns, unless a license is obtained. A license for a marriage by a Protestant clergyman must be issued from the office of the Provincial Secretary.

A marriage contracted without the free consent of both parties, or of one of them, can only be attacked by such parties themselves or by the one whose consent was not free.

A marriage contracted before the parties, or either of them, have attained the age required can no longer be contested if six months have elapsed since the party or parties have attained the proper age; or if the wife under that age has conceived before the termination of six months.

The laws in this Province concerning the rights of married women to own property separate from their husbands are almost mediaeval.

A married woman cannot take judicial proceedings without being authorized so to do by her husband or the court.

A husband and wife cannot contract with each other even with the assistance of a third person. They cannot even make donations to each other during the marriage.

Husband and wife are not competent witnesses against each other in a court of law.

Neither the courts nor the Provincial legislature grant divorces which dissolve the marriage bond. Applications for such relief must be addressed to the Dominion Parliament.

A separation from bed and board is granted by the courts to either party to a marriage upon proof of adultery, cruelty, desertion or confirmed drunkenness; and to a wife for the failure of her husband to provide her proper support.

Where a husband keeps a concubine in the same house with his wife the latter is justified in leaving him to live elsewhere, and in so doing the wife does not lose any of her marital rights.

Quebec is the only Province in the Dominion of Canada where a child born out of wedlock is legitimatized by the subsequent marriage of the parents.

BRITISH COLUMBIA.--The Divorce and Matrimonial Act of 1857, passed by the Imperial Parliament, is in full effect in this Province.

The Supreme Court has jurisdiction to entertain a petition for divorce between persons domiciled in the Province and in respect of matrimonial offences alleged to have been committed therein.

Absolute divorces are granted on the application of the husband on the ground of adultery; on the application of the wife on the ground of incestuous adultery, bigamy with adultery, rape, sodomy or bestiality, adultery coupled with such cruelty as without adultery would have entitled her to a judicial separation, or adultery coupled with desertion, without reasonable excuse, for two years or upwards. Alimony may be ordered to be paid to the wife, by the decree dissolving the marriage or granting a separation, or it may be sued for separately if the wife has either obtained or is entitled to such a decree. After absolute divorce either party may marry again. The procedure in divorce matters is almost identical with that of England.

A judicial separation may be obtained by either spouse because of:

1. Adultery.

2. Cruelty.

3. Desertion without cause for two years or more.

NEW BRUNSWICK.--It is interesting to note that in this Province a married woman may acquire, hold and dispose of, by will or otherwise (except that husband's curtsey will not therefore be affected), any real or personal property as her separate property, in the same manner as if she were a _femme sole_, without the intervention of any trustee, and may enter into and render herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued in all respects as if she were a _femme sole_.

The grounds for absolute divorce are:

1. Impotency.

2. Adultery.

3. Consanguinity.

NOVA SCOTIA.--This old Province, originally called Acadia, has a judiciary which consists of a chief justice, an equity judge and five puisne judges, a supreme court having law and equity jurisdiction throughout the Province, a vice-admiralty court and a court of marriage and divorce.

The rules as to consanguinity and affinity, the causes for divorce and judicial separation and the civil effects of marriage and divorce are the same as in England.

ALBERTA.--The Supreme Court Act (February 11, 1907) established the Supreme Court of the Province and provided that the court "shall have jurisdiction to grant alimony to any wife who would be entitled to alimony by the law of England, or to any wife who would be entitled by the law of England to a divorce and to alimony as incident thereto, or to any wife whose husband was separate from her without any sufficient cause and under circumstances which would entitle her by the laws of England to a decree for restitution of conjugal rights; and alimony, when granted, continue until further order of the court."

NORTHWEST TERRITORIES.--The term "Northwest Territories" originally referred to the region over which the Northwest Company exercised authority, the territorial limits of which were not clearly defined. The term is now used to designate the Canadian territories and districts of Yukon, Keewatin, Mackenzie, Ungava and Franklin.

As we have before observed, the law of marriage and divorce in the Northwest Territories is substantially the same as that of England.

NEWFOUNDLAND.--This, the oldest British colony in North America, is the most modern in its law of domestic relations.

Marriage is considered a civil contract, which may be solemnized before a qualified clergyman of any sect, or a judge, justice of the peace or other magistrate.

A married woman has the same right of buying, selling, owning and controlling any kind of real or personal property as a single woman. She has also the fullest right to make any lawful contract without adding her husband as a party. She may sue and be sued as if she were a single woman or a man.

There being no divorce courts, the Provincial legislature having no power to grant divorces, and the Colony of Newfoundland being outside of the jurisdiction of the Dominion Parliament of Canada, an absolute divorce cannot be obtained in the colony.