Pre-Confederation divorce laws There was no uniform federal divorce law in Canada until 1968. Instead, there was a patch-work of divorce laws in the different provinces, depending on the laws in force in each province at the time it joined Confederation: • In the three
Maritime provinces, divorce was governed by laws enacted by the colonial governments prior to
Confederation in 1867 (in
Nova Scotia from 1758, in
New Brunswick from 1791, and in
Prince Edward Island from 1833); • In the three
prairie provinces and the northern territories, divorce was available under the English
Matrimonial Causes Act 1857, which was incorporated into their local law in 1870 under the terms of the ''
Rupert's Land Act 1868''; • In 1867, the
Colony of British Columbia had declared that the laws of England, as they stood at November 19, 1858, were to apply "so far as they are not from local circumstances inapplicable". This declaration was later held to have included the English
Matrimonial Causes Act 1857 as it stood at that time. Until 1937, there was no right of appeal from a divorce proceeding in British Columbia. • In
Quebec, the
Civil Code of Lower Canada declared that "Marriage can only be dissolved by the natural death of one of the parties; while both live it is indissoluble." • In
Ontario, there was no pre-Confederation divorce law, although several efforts had been made prior to Confederation to bring it about. •
Newfoundland never enacted a divorce law prior to entering Confederation in 1949, and the local courts did not grant
judicial separations until 1948. There was therefore no divorce law in Newfoundland after it joined Confederation.
Federal jurisdiction over divorce With
Confederation in 1867, the federal Parliament was given exclusive jurisdiction over the law of marriage and divorce. However, Parliament did not initially use this power to create a comprehensive divorce law, being content to make specific changes to the pre-Confederation law. The English
Matrimonial Causes Act 1857 provided that a husband could sue on grounds of
adultery alone, but a wife would have to allege adultery together with other grounds. That rule applied in those provinces that had adopted the English Act. In 1925, Parliament provided that in those provinces, a wife could sue on grounds of adultery alone. In 1930, Parliament extended relief to deserted wives, by providing that, in the provinces where divorce was available, they could pursue proceedings on the grounds of desertion, so long as there had been separation from the husband for at least two years. It was not until 1930, when Parliament passed the
Divorce Act (Ontario), that the courts of Ontario were given jurisdiction to grant divorces and
annulments. The law granting divorce under this law was according to the law of England as it stood at July 15, 1870 (and thus on the same footing as the prairie provinces and the territories).
Parliamentary divorces The only way for an individual to get divorced in the provinces where there was no divorce lawas well as in cases where the
domicile of the parties was unclearwas to apply to the federal
Parliament for a
private bill of divorce. These bills were primarily handled by the
Senate of Canada where a special committee would undertake an investigation of a request for a divorce. If the committee found that the request had merit, the marriage would be dissolved by an
Act of Parliament. In 1963, provision was made for the
Senate of Canada to be able to dispose of parliamentary divorce petitions by way of
resolution instead of by a
private Act.
Foreign divorces Residents of Ontario, Quebec and Newfoundland could attempt to obtain a divorce in the
United States, but the validity of such decrees could be subject to review in the Canadian courts on the issue of domicile. In 1885, the
Supreme Court of Canada ruled that a New York divorce was valid, even though the husband was living in
Montreal, as "the burden was on the husband of showing that he had actually changed his domicile
animo et de facto". The consequences where a divorce was not recognized (e.g., it was obtained in a
divorce mill, such as
Reno, Nevada once was) and where one of the parties had already remarried proved to be awkward in certain cases. ==Reform of the law==