Dominion Of Canada And Newfoundland
: Japanese Fairy Tales
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).
s 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
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Provinces until the laws should be repealed or the courts abolished by
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
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
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
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
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
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:
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:
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
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.