UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY SARSWELL Co., Li ItookbtuderSt PRINTERS. . LAW HOOKS, A PUBLISHERS. etc." THE RULES AND PRACTICE BEFORE THE PARLIAMENT OF CANADA UPON BILLS OF DIVORCE BY ROBERT VICTOR SINCLAIR, K.C. Of 0goode Hall. Barrister. at-Lw LONDON : SWEET & MAXWELL, LIMITED S\ COPYBIGHT: CANADA, 1915, BY THE CARSWEIX Co., LIMITED. D //. f BY PERMISSION THIS WORK IS DEDICATED TO Ebe Donourable James H. XouQheefc, *.G. p.C. LEADER OF THE GOVERNMENT IN THE SENATE AND A MEMBER OF THE DIVORCE COMMITTEE THEREOF. PREFACE. In the following pages an attempt has been made to supply a long-felt want. The changes in divorce practice since the publica- tion of Gemmill on Divorce have rendered that excellent work practically obsolete. It is hoped that the notes to the Rules will be found suffi- cient to enable the practitioner to avoid diffi- culties which frequently arise in the prosecu- tion of an application for divorce. All the Rules of the Senate relating to divorce pro- ceedings are printed in the book. In the pre- paration of the work reference has been made to Gemmill on Divorce, Rayden on Divorce, and Browne & Watts on Divorce. The author desires to acknowledge his ap- preciation of the kindness of the Honourable James A. Lougheed, K.C. P.O., who read the draft of the book and who made many valu- able suggestions which have been incorporated in it. CHAPTER I. JURISDICTION OF PARLIAMENT. The jurisdiction of the Parliament of Canada in reference to divorce is declared by section 91, sub-sec. 26, of The British North America Act, but no general law ap- plicable throughout Canada has been passed thereunder, nor has jurisdiction in divorce been conferred on any Court. At the time of the Union in 1867, Courts exercising juris- diction in divorce existed in the Provinces of Nova Scotia and New Brunswick, and such Courts have since then continued to deal with divorce applications in virtue of section 129 of The British North America Act, by which it is provided that ' ' all laws in force in Canada, Nova Scotia or New Brunswick, at the Union, and all legal commissions, powers and authori- ties, and all officers, judicial, administrative, and ministerial existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia and New Brunswick respectively, as if the Union had not been made." There were then no Courts exercising such jurisdiction in either Ontario or Quebec. At the time of the admission to the Union of the Provinces of Prince Edward Island and B.D. 1 2 JURISDICTION OF PARLIAMENT. British . Columbia, the Courts of these pro- vinces exercised jurisdiction in divorce, and they have since continued to do so. While the jurisdiction of Parliament in divorce is general through Canada, and it is open to persons domiciled in any province of Canada to apply to Parliament for a divorce, in practice applications to Parliament for di- vorce are confined to persons domiciled in the Provinces of Quebec, Ontario, Manitoba, Sas- katchewan, Alberta and the Yukon Territory. Under The British North America Act, Canada obtained a constitution similar in prin- ciple to that of the United Kingdom, and within the limits of the subjects assigned to it the Parliament of Canada is supreme, and its power is as plenary and ample as that of the Parliament of the United Kingdom. While in the exercise of such power the Canadian Parliament has authority to grant divorces for any reason that may seem to it sufficient, still in exercising such authority, Parliament is guided by and practically conforms to the principles upon which divorces are granted by the Courts of England. This statement is, however, subject to this exception, that in Canada divorces are granted on the applica- tion of the wife on the sole ground of adultery, while in England, it is necessary that the adultery should be accompanied by cruelty or desertion, or the husband must have been JURISDICTION OP PARLIAMENT. 3 guilty of incestuous adultery, of bigamy with adultery, of rape, of sodomy or bestiality. In a discussion which arose in the Senate in 1888, on the question of the establishment of a Divorce Court, the late Senator Gowan in speaking of the duties and functions of Par- liament, said: " It (Parliament) decides whether the charges are proved, whether they constitute such a case as should entitle the party to a special Act for relief, and what relief, if any, should be granted to the party, in view of all the circumstances; and Parlia- ment may, and ought always, to have in regard, not merely the question as it affects the par- ties, but the effect in relation to morals and good order the effect which the passing a par- ticular law might have upon the well-being of the community. Parliament as the supreme power has its duties and responsibilities and cannot compromise the well-being of society which has been entrusted to it under the Con- stitution. ' ' CHAPTER II. DOMICILE AS AFFECTING JURIS- DICTION. In granting or withholding relief in di- vorce applications, Parliament observes the principles of the law of domicile as recognized in the English Divorce Court. A woman on marriage acquires the domicile of her hus- band, and during the continuation of the mar- riage she has and can acquire no domicile separate from that of her husband. Mere residence short of actual domicile is not suffi- cient to found jurisdiction, and Parliament will not entertain an application for divorce unless the domicile of the applicant is within Canada at the time of the application. The English Courts do not recognize as possessing any extra territorial validity any decree of dissolution of marriage, unless pro- nounced or recognized in a country in which the parties were domiciled at the commence- ment of 'the suit. When the domicile of the parties is in Canada, a divorce obtained by either of them in a foreign country will not be recognized by Parliament. The question frequently arises, where in answer to an application of a person domiciled in Canada the respondent sets up a divorce DOMICILE. 5 obtained in the United States of America fol- lowed by remarriage there. Such divorces have no validity in Canada, and the cohabita- tion following the remarriage is adulterous and affords a ground for relief. The Hearns case, Stats, of 1913, p. 239, and the Hutcheon case, Stats, of 1914, p. 367, are instances in which the wife deserted her husband, obtained a divorce in the United States and then remarried. An interesting discussion of the law of domicile as affecting the jurisdiction of Parlia- ment, and of the effect of American divorces, will be found in the Senate debates for 1887, in the Ash case. In the Harris case the mar- riage took place in Canada in 1832. The Bill was passed by both Houses in 1845, when both the petitioner and respondent were absent from the province, and was reserved for Her Majesty's approval. The Bill was disallowed owing to the fact that the parties were not domiciled in Canada at the date of the passing of the Act. % PEOCEDURE. Applications for divorce come under the head of Private Bill Legislation, and the prac- tice and procedure is now governed by special standing rules and orders adopted by the Senate in 1906. 6 COMMITTEE ON DIVORCE. Apart, however, from these special rules and orders, other rules relating to Private Bills, when not inconsistent with such rules and orders, apply to Divorce Bills. The rules and forms seem to contemplate adultery as the sole ground of divorce, that being the only ground specifically stated, but it is provided by Rule 152, that, in cases not provided for, the principles upon which the Imperial Parliament proceeds in dissolving marriage may, as far as they are applicable, be applied to divorce proceedings before the Senate. APPOINTMENT OF COMMITTEE. At the commencement of each session a Committee of Selection, consisting of nine Senators named by the Senate, is appointed, whose duty it is to nominate the Senators to serve on the several standing Committees. The Committee of Selection appoints the Commit- tee on Divorce, composed of nine Senators. Every Standing or Special Committee meets, if practicable, on the next sitting day after appointment and chooses a chairman; and a majority of Senators appointed on such Committee constitute a quorum, unless it be otherwise ordered. By Rule 87, Senators, although not of the Committee, are not excluded from attending COMMITTEE ON DIVORCE. 7 meetings of the Committee and speaking ; but they must not vote. They sit behind the mem- bers of the Committee. By Rule 82, no other persons, unless com- manded to attend, are to enter at any meeting of a Committee of the Senate. This does not in practice apply to the members of the House of Commons. Questions before the Committee are de- cided by a majority of voices including the. voice of the chairman ; whenever the voices are equal the decision is deemed to be in the nega- tive. Rule 123. The Committee chooses its chairman at its first sitting. As presiding officer, he has the general direction of the proceedings on the trial of each petition. CHAPTER III. RULE 133. REFERENCE OF PETITION TO COMMITTEE- MEETINGS OF COMMITTEE. All petitions for divorce and all matters arising out of petitions for, or bills of divorce, shall be referred to the Standing Committee on Divorce, and no reference to any Com- mittee other than that Committee shall be necessary with respect to such petitions, bills and matters. B. 800, sq. Notice of the day, hour and place of every sitting of the Committee shall be given b.y posting up the same in the lobby of the Senate not later than the afternoon of the day before the time appointed for such sitting. B. 807. NOTES. Formerly proof of publication had to be made before the Standing Orders Committee. Now the Committee on Divorce deals with that question, as well as with all other questions arising out of the application. No notice of the sitting of the Committee is given except by posting in the lobby of the Senate, but ample notice is always given so as to enable the parties and their witnesses to be present. RULE 136. NOTICE OF APPLICATION TO BE ADVERTISED THREE MONTHS. Every applicant for a Bill of Divorce shall give notice of his or her intended application, and shall specify therein from whom and for what cause such divorce is sought, and shall cause such notice to be published during at least three months before the consideration by the Committee on Divorce of his or her peti- tion for the said Bill, in the Canada Gazette and in two newspapers published in the district in Quebec, Manitoba, Saskatchewan, Alberta, British Columbia or the Northwest Territor- ies, or in the county or union of counties in other provinces, wherein such applicant usu- ally resided at the time of the separation of the parties ; but if the requisite number of papers cannot be found therein, then in an adjoining district or county or union of counties. Notices given in the Provinces of Quebec and Manitoba are to be published in one Eng- lish and one French newspaper, if there be such newspapers published in the district, but otherwise shall be published in one newspaper in both languages. The notice may be in the subjoined Form "A." If a notice given for any session of Parliament is not completed in time to allow the petition to be dealt with dur- ing that session, the petition may be presented 10 SENATE RULE 136. and dealt with during the next ensuing session, without any further publication of such notice. B. 802. NOTES. The first step when an application for di- vorce is intended is to prepare the advertise- ment, which should conform to Form A, al- though by Rule 150, the forms prescribed may be varied to suit the circumstances of each case. Adhesion to the form prescribed obvi- ates questions which might otherwise be raised as to the sufficiency of the notice. All the particulars indicated in the Form should be accurately set forth and every ground on which the divorce is sought should be specifically stated. Application may be made on the following grounds: (a) Adultery, (&) Adultery and desertion, (c) Adultery and cruelty, (d} Adultery and desertion and cruelty. (e) Bigamy. The Stock Case, Stat. of 1899, p. 351. (/) Bigamy and adultery. The Leaitch Case, Stat. of 1912, p. 175. The Harrison Case, Stat. of 1892, p. 140. Incestuous adultery. SENATE RULE 136. H (h) Rape. (i) Sodomy and unnatural offences. The Dakin Case, Stat. of 1911, p. 319. (j) Bestiality. (ft) Malformation at time of marriage. (I) Nullity of marriage, owing to fraud, when there has been no consumma- tion by cohabitation. The Stevenson Case, Stat. of 1869, p. v. The Lavell Case, Stat. of 1887, p. 331. So far as the writer is aware, the only other ground for dissolution of marriage, which has been considered by Parliament, is that of impotency. In the White case, session of 1888, the application by the wife was based on the mal- formation or impotency of the respondent. The respondent, following the practice in the English Divorce Court, was ordered to attend for medical examination, and both parties having been examined, the physicians reported to the Committee that there was no malforma- tion apparent in the respondent, and that the physical condition of the petitioner was such as to contradict her statement that the mar- riage had not been consummated. The bill was rejected. The case is referred to as an ex- ample of the principle that Parliament is dis- posed to grant relief upon grounds recognized 12 SENATE RULE 136. in the former Ecclesiastical Courts of England as sufficient to declare a marriage null and void when it is shown to the Committee that the Courts of the province in which the ap- plication arises have no jurisdiction to grant relief upon such grounds. In Quebec the Provincial Courts have jurisdiction to annul a marriage for impo- tency, natural or accidental, existing at the time of the marriage; but only if such impo- tency be apparent and manifest. This nullity cannot be invoked by anyone but the party who has contracted the marriage with the im- potent person, nor at any time after three years from the marriage. In Ontario the Courts have no jurisdic- tion to entertain an action to have a marriage declared null and void upon the ground of impotency: T. v. B., 15 O. L. E. 224; nor upon the ground that one of the parties was of unsound mind, and, therefore, incapable of entering into the contract of marriage when the ceremony was performed: A. v. B., 23 O. L. E. 261 ; nor upon the ground that the parties are related within the prohibited degrees : May v. May, 22 O. L. E. 559 ; nor to have declared void a marriage duly solem- nized unless the case can be brought under sec- tion 36 of The Marriage Act, E. S. O. 1914, c. 148; Reid v. Aull, 32 O. L. E. 68. This is also the law in Manitoba, Saskatchewan, SENATE RULE 136. 13 Alberta and the Yukon Territory. Should any of the above cases arise hereafter in any of these provinces, the only forum open to the aggrieved spouse is Parliament, to which body the right to grant relief belongs. In the event of a case arising in the Pro- vince of Quebec founded on impotency, it is probable that Parliament would decline to give relief since, as already pointed out, the Courts of that province have jurisdiction to annul a marriage for such cause. If legal proceedings have been taken by the petitioner for Crim. Con. and judgment has been recovered, these facts should be set forth and should be proved by a certified copy of the judgment. The advertisement must be published for at least three months in the Canada Gazette and in two newspapers. This means publica- tion once a week for fourteen weeks. The notices in the Gazette and in the newspapers must be identical. A copy of each issue of the newspaper containing tire advertisement should be obtained by the solicitor for the pur- pose of proving publication before the Com- mittee. Proof of publication is made by Statu- tory declaration under the Canada Evidence Act. The standing orders of the House of Com- mons apply to Private Bills, applications for 14 SENATE RULE 136. which must by such orders be published for at least two months in the Canada Gazette, and when the application comes from either the Province of Quebec or Manitoba, in English in one English newspaper and in French in one French newspaper, published in the district in which the applicant usually resided at the time of the separation of the parties, or if there is no newspaper published therein, then in both languages in a newspaper published in an adjoining district. When the application comes from any of the other provinces, the notice is to be pub- lished for at least two months in the Canada Gazette, and in one newspaper published in the city, county or union of counties, where the applicant usually resided at the time of the separation. Publication for at least two months means nine consecutive weekly insertions. The publication is to be in the interval of time between the close of the preceding ses- sion and the consideration of the petition. Where the publication is not completed in time to allow of the petition being consid- ered during the session for which notice is given, the petition may so far as the Senate is concerned be presented and heard without further publication of the notice. This rule does not apply to the House of Commons. The SENATE RULE 136. 15 notice must be republished for two months as above stated. The length of the sessions of Parliament being uncertain, it is important, if possible, to have the advertising completed at least by the opening day of the session for which notice is given. The time required to secure the pas- sage of a bill, even of the simplest character, through both Houses of Parliament is at least six weeks, and in cases in which there are com- plications the time is much longer. When the advertising is not completed until some time after the session has commenced the petitioner runs the risk of prorogation before the bill passes both Houses, and besides suffering from the necessity of waiting until another session to obtain the relief to which he may be entitled, is obliged to incur the additional expense inci- dent to prosecuting his petition at the next session. EULE 139. CONTENTS OF PETITION GKOUNDS FOB BELIEF NEGATIVING OF CONDONATION VEBIFICATION BY STATUTOBY DECLABATION ENDOBSEMENT ON COPY SEBVED. The petition of an applicant for a Bill for divorce must be fairly written and must be signed by the petitioner, and should briefly set forth the marriage, the names in full of the parties thereto, their ages and occupations, when, where and by whom the ceremony was performed, the domicile and residence of each of the parties at the time of the marriage, their matrimonial domicile, residence, and any change thereof, the material facts upon which the petitioner relies as the grounds on which relief is asked, and the nature of the relief prayed for. The petition should also negative conniv- ance at or condonation of the wrong com- plained of and collusion in the application for divorce. 2. The allegations of the petition must be verified by declaration of the petitioner, under The Canada Evidence Act, 1893. 3. The copy of the petition served upon the respondent shall have endorsed thereon, or appended thereto, the following informa- tion : SENATE RULE 139. 17 (1) The petitioner's residence at the time of service. (2) A Post Office address in Canada at which letters and notices for the petitioner may be delivered. (5) The name and address of the solici- tor, if any, acting for the petitioner. (4) If such solicitor's address is not at Ottawa, the name and address of some agent for him at Ottawa, upon whom all notices and papers may be served. (5) That if the respondent desires to op- pose the granting of the divorce and to be heard by the Senate Committee on Divorce, the respondent must send a notice to that effect to the Clerk of the Senate at the Par- liament Buildings, Ottawa, within two months from the date of service upon 'the respondent, and must in the notice to the Clerk of the Senate give: (a) The respondent's residence at the time of sending such notice. (6) A Post Office address in Canada at which letters and notices for the respondent may be delivered. (c) The name and address of the solici- tor, if any, acting for the respondent. (d) If such solicitor's address is not at Ottawa, the name and address of some agent B.D. 2 18 SENATE RULE 139. for him at Ottawa, upon whom all notices and papers may be served. That, if the respondent does not so notify the Clerk of the Senate, the petition may be considered, and a Bill of Divorce founded thereon may be passed, without any further notice to the respondent. (7) When the petition is one by a hus- band for a divorce from his wife, that, if the wife shows to the satisfaction of the Senate Committee on Divorce that she has, and is prepared to establish upon oath, a good defence to the charges made by the petition, and that she has not sufficient money to de- fend herself, the Committee may make an order that her husband shall provide her with the necessary means to sustain her de- fence, including the cost of retaining Coun- sel and the travelling and living expenses of herself and of witnesses summoned to Ottawa on her behalf. B. 804 (), seq. NOTES. Applications to Parliament for Private Bills are instituted by three petitions ad- dressed respectively to the Governor-General in Council, The Senate and The House of Com- mons. The petitions must be signed by the petitioner himself, not by his Counsel or So- licitor. If the petitioner cannot write he SENATE RULE 139. 19 should make his mark in the presence of a witness, who should attest the execution of the petition by the petitioner and verify such execution by affidavit. The form of the petition to the Governor- General is as follows : To Field Marshall His Royal Highness Prince Arthur William Patrick Albert Duke of Connaught and of Strathearn, Earl of Sus- sex (in the Peerage of the United Kingdom) ; Prince of the United Kingdom of Great Brit- ain and Ireland; Duke of Saxony; Prince of Saxe-Coburg and Gotha; Knight of the Most Noble Order of the Garter ; Knight of the Most Ancient and Most Noble Order of the Thistle ; Knight of the Most Illustrious Order of Saint Patrick; One of His Majesty's Most Honour- able Privy Council ; Grand Master of the Most Honourable Order of the Bath ; Knight Grand Commander of the Most Exalted Order of the Star of India; Knight Grand Cross of the Most Distinguished ,Order of St. Michael and St. George ; Knight Grand Commander of The Most Eminent Order of the Indian Empire; Knight Grand Cross of the Royal Victorian Order; Personal Aide-de-Camp of His Majesty the King; Governor-General and Commander in Chief of the Dominion of Canada. The petition of humbly showeth 20 SENATE RULE 139. * (1) That (here set out the various paragraphs of the petition as in Form C.) Wherefore your petitioner humbly prays that your Excellency may be pleased to sanc- tion the passing of an Act dissolving the said marriage between your petitioner and the said C. D., and enabling your petitioner to marry again and granting your petitioner such further and other relief in the premises as to your Excellency may seem meet. And as in duty bound your petitioner will ever pray. (Date) Signature of Petitioner. This petition should be sent to The Hon- ourable The Secretary of State for submission to His Excellency in Council. The petition to the House of Commons is addressed, To The Honourable, The House of Commons of Canada in Parliament assembled, and proceeds as in Form C. Where the petitioner's solicitor does not reside at Ottawa, he must appoint an agent at Ottawa, upon whom papers may be served. The agent's name and address must be stated in the endorsement on the petition. SENATE RULE 139. 21 If the respondent intends to oppose the application he must within two months after service of the petition upon him send to the Clerk of the Senate a notice to that effect in which he must state : (a) His then residence. (&) A Post Office address in Canada at which letters and notices for him may be delivered. (c) The name and address of his solicitor, if any. (d) If such solicitor's address is not at Ottawa, the name and address of some agent for him at Ottawa, upon whom all notices and papers may be served. It is important in the respondent's inter- est, that the foregoing notice and information should be sent to the Clerk of the Senate as failure to comply with this requirement may result in the petition being considered and the divorce being granted without further notice to the respondent. When the wife's means are insufficient to enable her to bear the expenses of the defence, the Committee will order the petitioning hus- band to furnish her with such money as the Committee may deem sufficient to pay counsel fees, witness fees, travelling expenses and the living expenses of herself and her witnesses at Ottawa. RULE 137. SERVICE OF NOTICE AND PETITION. A copy of the said notice and a copy of the petition to be presented shall, at the in- stance of the applicant, and not less than two months before the consideration by the Com- mittee of the petition, be served personally, when that can be done, on the person from whom the divorce is sought, who is hereinafter called " the respondent." If the residence of the respondent is not known or personal service cannot be effected, then, if it be shown to the satisfaction of the Committee that all reasonable efforts have been made to effect personal service, and, if unsuccessful, to bring such notice and petition to the knowledge of the respondent, what has been done may be deemed and taken by the Committee as sufficient service. NOTES. The notice, of which a copy is to be served on the respondent, is the notice published in the Canada Gazette. The copy of the petition, which is directed to be served, must have thereon the endorsement mentioned in Rule 139. Service, when made in Canada, is proved by statutory declaration. The identity of the person served with the respondent must be established by the declaration. The person SENATE RULE 137. 23 effecting service should have a duplicate of the notice and of the petition and endorsement with him, upon which he should endorse the date of service, the place of service, and the facts establishing the identity of the person served with the respondent. It would be well also to add the date on which the foregoing facts are so endorsed, and all these facts should appear in the declaration of service. The copies of the notice and of the petition which are served must be left with the respondent. When service is effected in a foreign country proof of service must be made by affidavit. A declaration of service in such case will not be accepted by the Committee, The Canada Evi- dence Act having no application outside of Canada. With respect to affidavits of service made in a foreign country, it may be said generally that such affidavits when made in accordance with the forms required by the laws of the country where they were made will be ac- cepted by the Committee. Adherence to the following suggestions will probably obviate difficulties which con- stantly arise before the Committee in conse- quence of affidavits of service made in a foreign country being found defective in form. If such affidavits are made : (a) In England or Ireland, 24 SENATE RULE 137. Before a Commissioner authorized to administer oaths in the Supreme Court of Judicature of England or Ireland. Before a Judge of the Supreme Court of Judicature of England or Ireland. Before a Judge of any County Court of England or Ireland within his county. In Great Britain or Ireland before the Mayor or Chief Magistrate of any City, Borough or Town Corporate, certified under the common seal of such City, Borough or Town Corporate. (&) In Scotland, Before a Judge of the Court of Ses- sion or the Justiciary Court of Scotland. (c) In any Colony of Great Britain, Before a Judge of any Court of Re- cord or of supreme jurisdiction. (d) In any Foreign Place, Before a Judge of any Court of Re- cord or of supreme jurisdiction or before any consul, vice-consul or consular agent of His Majesty exercising his functions. And generally wherever made, before a Notary Public certified under his hand and seal, such affidavits will be considered sufficient. It must be remembered, however, that when such affidavits are made in the United SENATE RULE 137. 25 States of America before a Notary Public a certificate must be attached signed by an offi- cial of a Court of Record showing that the Notary's Commission as a Notary is in force, as in that country Notaries' Commissions re- quire to be renewed annually. The object of service being to give the re- spondent notice of the application, the prim- ary consideration, where personal service can- not be effected, is how notice of the application can best be brought to the personal attention of the respondent. A copy of the notice and petition should be left at or mailed registered, postage prepaid, to the last known place of residence and last known address of the re- spondent. A copy should also be delivered or similarly mailed to any relative or other per- son known or likely or believed to be in com- munication with the respondent, and even though the relative is not known to be in com- munication with the respondent, it is advisable to serve him and such relative or other person should be asked for the respondent's address, and the reply received should be set out in the affidavit. If the respondent has a solicitor or business agent, a copy of the papers should be given to him. If the respondent is known to be residing temporarily at some address, other than that of his ordinary residence, at- tempts to serve him there should be made, and copies of the papers should be left there for 26 SENATE RULE 137. him. If there is reason to believe that the re- spondent is aware of the proceedings and has evaded service, such facts should be set out in the declaration or affidavit. In fact the de- claration or affidavit should show that every reasonable attempt has been made to effect service or to bring notice of the application to the attention of the respondent. The respondent's solicitor will ascertain the date of hearing by reference to the Notice of the Sittings of the Committee, which is posted in the lobby of the Senate. Month in this rule means calendar month. In the Ash Case, 1887, the whereabouts of the respondent William Manton were un- known. Susan Ash, his wife, was applying for divorce on the ground of desertion and be- cause the respondent had obtained a divorce in the United States and had remarried. The several declarations of attempted service showed the following facts : That Wil- liam Manton was reputed to reside in the City of Boston or in West Medford, Massachusetts, and that true copies of the notice were mailed in the Ottawa Post Office to him at each place, postage prepaid. That respondent had obtained a divorce, in the Supreme Court of the City of Suffolk in the State of Massachusetts, from Susan SENATE RULE 137. 37 Ash, and had afterwards married a Miss Mary Hatch and was cohabiting with her, as man and wife, in the City of Boston. That deponent had made several attempts to discover the place of residence of respon- dent, that he had enquired of Joseph Manton of Montreal, respondent's uncle, as to respon- dent's place of residence, but could get no in- formation. That he had employed a detective agency to trace respondent without success. That he believed respondent, having been in- formed that he was liable to be prosecuted for bigamy, was hiding and passing under an as- sumed name. That enquiries had been made of Catharine Hatch, mother of Mary Hatch, as to respondent's whereabouts, and that she had stated that respondent had taken up his residence in West Medford. That a copy of said notice had been served on respondent's uncle, who had stated that he had not heard from respondent for many years, to wit, since he left Canada. That a copy of the notice had been served on Catharine Hatch. These attempts to serve were held by the Committee to be sufficient. RULE 138. PRESENTATION OF PETITION. No petition for a bill of divorce shall be presented to the Senate after the first sixty days of the Session. NOTE. The time for receiving petitions is fre- quently extended, but if for reasons beyond the control of the petitioner it has been im- possible to present the petition before the ex- piry of the time, a petition for leave to present the petition may be resorted to, and if the Senate is satisfied that the delay is reasonably accounted for, leave to present the petition is usually granted. RULE 141. REFERENCE OF PETITION TO COMMITTEE DUPLI- CATE COPIES OF PETITION AND ALL OTHER PAPERS TO BE FURNISHED TO COMMITTEE. The petition when presented to the Senate shall be accompanied by the evidence of the publication of the notice as required by Rule 136, and by declaration in evidence of the ser- vice of a copy of the notice and of a copy of the petition as provided by Rule 137. The petition, notice, and evidence of publication SENATE RULE 141. 29 and service, and all papers connected there- with, shall thereupon stand as referred, with- out special order to that effect, to the Stand- ing Committee on Divorce. A copy of every petition for a bill of divorce, or relating to any matter arising out of an application for divorce and of every document and paper accompanying such peti- tion or produced in evidence before the Com- mittee, shall be furnished to the Committee by the person on whose behalf the petition, document or paper is presented or produced. NOTES. The solicitor must be careful to see that the petition when presented to the Senate is accompanied by, (1) Evidence, by Statutory Declaration, of publication in the newspaper for 14 con- secutive weeks, and in the Gazette for the same time. Copies of the newspapers con- taining the first and last insertions should be furnished to the Clerk of the Committee. Evidence, by Statutory Declaration or affidavit, of service of a copy of the notice and of a copy of the petition on the respon- dent, or the like evidence of attempts to serve the respondent. A duplicate copy of the petition and of the foregoing declarations and of every docu- 30 SENATE RULE 140. ment intended to be used as evidence before the Committee, viz., the marriage certificate, letters, etc., must be left with the Clerk of the Committee. RULE 140. PAYMENT OF FEES. No petition for a bill of divorce shall be considered by the Committee unless the ap- plicant has paid into the hands of the Clerk of the Senate the sum of two hundred dol- lars, towards expenses which may be incurred during the proceedings upon the petition and the bill, and also the sum of ten dollars to pay for translating and printing 600 copies of the bill in English and 200 copies in French. The translation shall be made by the translators of the Senate, and the said sums shall be subject to the order of the Senate. NOTES. The House fees on a Bill of Divorce amount to $210.00, which must be paid to the Clerk of the Senate before the petition will be considered by the Committee. If the ap- plicant is too poor to pay the fees a petition should be presented on his behalf, before the presentation of the petition for divorce, SENATE RULE 142.' 31 setting out the particulars of the intended ap- plication for divorce, the needy circumstances of the petitioner and all such other facts as would justify the House in allowing the peti- tioner to proceed in forma pauperis. The petition should be verified by statutory declar- ation. By Rule 114 the fee payable on any pri- vate bill is paid in the House in which it is in- troduced. RULE 142. PROOF OF PUBLICATION AND OF SERVICE ORDER FOR SUBSTITUTION AL SERVICE NON-COMPLI- ANCE WITH RULES. The Committee shall examine the notice of application to Parliament, the petition, the information endorsed upon or appended to the petition, the evidence of publication of the notice, the evidence of the service of a copy of the notice and of a copy of the petition, all other papers referred with the petition, and also the notice, if any, given by the respondent to the Clerk of the Senate. 2. If any proof is found by the Committee to be defective, it may be supplemented by sta- tutory declaration to be laid before the Com- mittee. 32 SENATE RULE 142. 3. If the circumstances of the case seem so to require, the Committee, before proceed- ing to hearing and inquiry as hereinafter re- quired, may make such order as to the Commit- tee seems requisite and just for effecting sub- stitutional service by advertisement, regis- tered letter, or otherwise, upon both or either of the parties. 4. If the requirements of these rules, or of any order made thereunder by the Com- mittee, have not been complied with in any material respect, the Committee shall report thereon to the Senate, and shall not, without further order from the Senate, proceed to hear and inquire into the matters set forth in the petition. 5. If the requirements of these rules or of any order made thereunder by the Committee, have been complied with in all material re- spects, the Committee shall, after reasonable notice to the parties, proceed with all reason- able despatch to hear and to inquire into the matters set forth in the petition and shall take evidence upon oath touching the right of the petitioner to the relief prayed for. NOTES. In the case of Private Bills, other than Divorce Bills, proof of publication is submit- ted to the Standing Orders Committee of the SENATE RULE 134. 33 Senate. In the case of Divorce Bills the suf- ficiency of the proof of publication is deter- mined by the Committee on Divorce. Notice of the date and time of sitting of the Committee is given by posting the same in the lobby of the Senate. v RULE 134. REPORTING OF EVIDENCE. The Official Reporters of the Senate, or one of them, when notified by the Chairman, shall be in attendance at each sitting of the Committee, and, having first been duly sworn to discharge faithfully such duty, shall take down in shorthand and afterwards extend the evidence of witnesses examined before the Committee, which evidence shall be printed under the supervision of the Clerk of the Eng- lish Journals. NOTE. The evidence must be taken in shorthand by one of the official reporters of the Senate. It is afterwards extended and printed at the Government Printing Bureau. The evidence is not signed by the witnesses. B.D. 3 RULE 145. EVIDENCE NECESSARY TO SUPPORT BILL DE- FENCES ADMISSIBLE INTERVENTION OF MINISTER OF JUSTICE. If adultery be proved, the party from whom the divorce is sought may nevertheless be admitted to prove connivance at, or con- donation of the adultery, collusion in the pro- ceedings for divorce, or adultery on the part of the petitioner. Connivance at, or condonation of the adultery, or collusion in the proceedings for divorce, is always a sufficient ground for re- jecting a Bill of Divorce, and shall be inquired into by the Committee. And should the Com- mittee have reason to suspect connivance or collusion, and in their opinion it is desirable that fuller inquiry should be made, such opinion and the reasons therefor shall be com- municated to the Minister of Justice, that he may intervene and oppose the bill should the interest of public justice in his opinion call for such intervention. B. 812, sq. NOTES. The adultery charged must have been committed by one of the consorts since the celebration of the marriage in question. It is not necessary in order to succeed to prove the direct fact of adultery, or even a fact of adul- SENATE RULE 145. 35 tery as to time and place. In nearly every case the fact is inferred from proof of circum- stances which show the opportunity for the act, and which lead to the conclusion that it occurred. The Committee will scrutinize with great care a case where only a single witness testifies to the fact of adultery, and especially if that witness is a woman of loose character with whom the act is said to have been committed. The evidence of the husband or wife alone, unless corroborated by another witness, or by strong circumstantial evidence, and par- ticularly where the fact is sought to be proved by admission, is not sufficient. Proof that the respondent has contracted a venereal disease, not from the petitioner, is sufficient evidence of adultery. Venereal dis- ease in itself is uncertain evidence as it is con- sistent with the husband's adultery, with the wife 's adultery and with accidental communi- cation of the disease. In Browning v. Brown- ing (1911), p. 161, it was held that it is suffi- cient for a wife to prove that she was infected by the husband and it is then for him to prove that the disease was communicated in such cir- cumstances as not to amount to legal cruelty. Proof that the respondent is suffering from venereal disease must be given by medical tes- timony ; no other evidence will be accepted by 36 SENATE RULE 145. the Committee. Proof that the respondent travelled with a person of the opposite sex, not the petitioner, and that they registered as man and wife at a hotel and occupied the same room, is sufficient. Proof that the respondent visited a brothel is sufficient, unless it be shown absolutely and by unimpeachable evi- dence that the visit was innocent. If the peti- tioner 's wife gives birth to a child, of which in point of time the petitioning husband could not have been the father, that also is sufficient. The first step before the Committee at the hearing is to prove a valid marriage, as with- out a valid marriage there can be no adultery. Proof of such a marriage involves proof of the identity of the parties. It must be shown by satisfactory evidence that the persons, whose marriage it is sought to dissolve, are the per- sons between whom the marriage was solem- nized. In addition to the evidence of the peti- tioner as to the fact of marriage and identity of parties it is usual to produce and file with the Committee a certificate of marriage, signed by the officiating Minister, or to pro- duce and prove an examined copy of the entry in the marriage register, or to file a certificate signed by the Registrar-General, where the marriage was performed in any of the pro- vinces of Canada having such an officer. Where it is intended to prove a marriage by SENATE RULE 145. 37 a certificate of marriage signed by the officiat- ing minister, evidence must be given that the signature on the certificate is that of the offi- ciating minister and that such minister per- formed the ceremony. The identity of the par- ties should be established by a witness who was present at the marriage, or if such a witness cannot be obtained then a witness who knew the parties when they were living together as man and wife. Photographs are frequently used as a means of proving identity. The best and most direct proof possible of marriage and identity should be given. If a case should arise where the production of a certificate is impossible the fact of marriage may be proved by the evidence of witnesses who knew the parties and know that for a considerable time they cohabited as man and wife, as such evi- dence raises a presumption of lawful mar- riage which can only be rebutted by the most cogent proof to the contrary. Reference may be made to Phipson on Evidence, 4th Edition, p. 313, et seq., as to the mode of proof of for- eign marriages. When clear proof is given of the celebra- tion of a marriage, followed by cohabitation, everything necessary to the validity of the marriage will be presumed, unless evidence to the contrary is forthcoming. It is not neces- sary to prove the license, or the publication of banns, or the capacity of the parties to en- ter into the contract. 38 SENATE RULE 145. Where the marriage was performed in Ontario a certificate, signed by the Registrar- General, is, under the Vital Statistics Act, c. 49 of R. S. 0. 1914, prima facie evidence of the facts certified to be recorded. In Quebec, un- der the Civil Code, the churches are required to keep registers in duplicate which are in charge of the rectors, priests, or ministers, and in which acts of civil status are to be entered, one of which registers, within the first six weeks of each year, is deposited in the office of the Prothonotary of the Superior Court of the District, or in the office of the Clerk of the Circuit Court, and the other of such regis- ters remains in the custody of the priest, or minister who kept the same. Extracts from such registers, given by either depositary and being signed and certified by him, are authen- tic. In Manitoba, under the Vital Statistics Act, Revised Statutes, 1913, c. 203, s. 28, every person who solemnizes a marriage is re- quired to report the same to the Division Registrar within fifteen days thereafter. If default is made in giving the notice required by section 28 the division registrar is author- ized by section 29 to register the marriage at any time within 12 months after 'the perform- ance of the ceremony, if furnished with the necessary information, but thereafter regis- tration can only be made by the Minister in SENATE RULE 145. 39 charge of the Department. By section 53 of the Act the registers kept by the Roman Catho- lic, Anglican, Presbyterian, Methodist or other clergy in the Province, or in the terri- tory now comprising the Province prior to the passing of Chapter 8 of the Statutes of 1881, and which are or may be deposited with the Minister, are declared to be authentic, and copies of registers, authenticated under the signature of the Minister of the Department, are declared to be competent evidence in all cases in which the original records could be evidence. In Saskatchewan, under the Vital Statis- tics Act, Revised Statutes, 1909, c. 21, s. 11, every clergyman, minister or other person, authorized by law to celebrate marriage, is required to make a report to the Division Re- gistrar of every marriage which he celebrates within one month after celebration, and by section 20 such Division Registrar is required to forward the returns to the Department. By section 20, sub.-sec. 3, extracts from such returns, certified by the Minister of the De- partment, are declared to be evidence of the entry and prima facie evidence of the facts therein stated. In Alberta, the Vital Statistics Act, c. 13 of the Statutes of 1907, contains in sections 11, 17 and 30 provisions similar to those in the Vital Statistics Act of Saskatchewan. 40 SENATE RULE 145. In the North- West Territories, after the passing of Ordinance No. 9 of 1878, which be- came law on the 2nd of August, 1878, mar- riages could be validly celebrated by Justices of the Peace, as well as by ministers and clergymen of every religious denomination. By section 10 of the Ordinance, the person solemnizing the marriage was to keep dupli- cate certificates in a prescribed form, one of which he was required to transmit to the Re- gistrar of Deeds for the Territories, who, by section 12, was required to furnish a copy of the record of any certificate of marriage, which copy, certified by the Registrar, is prima facie evidence of the marriage named therein. The above Ordinance was repealed, on the 10th of June, 1881, by Ordinance No. 7 of 1881, by which authority was given to Commission- ers, appointed for that purpose, to celebrate marriages, as well as ministers and clergymen. Under this Ordinance the returns are made to the General Registrar of Deeds for the North- West Territories, whose certificate is prima facie evidence of the marriage. By the Revised Ordinances of 1888, No. 6, registration divisions were established, and every person, authorized by law to celebrate marriages, was required to make returns to the Registrar of the Division. By section 5 of the Ordinance, the Division Registrar was SENATE RULE 145. 4! required to make returns to the Registrar General, whose certificate is declared, by sec- tion 21, to be prima facie evidence of the facts therein stated. By Ordinance No. 7 of 1889 the Division Registrars are required to keep duplicate records and certificates given by such Registrars are declared to be prima facie evidence of the facts stated therein. The Vital Statistics Ordinance of 1897, being No. 34, contains provisions similar to those of Vital Statistics Ordinance which ap- pears at page 1245 in the Revised Ordinances of 1905. This Act will also be found as Chap- ter 14 of the Consolidated Ordinances of the North- West Territories published in 1907. By Ordinance 37 of 1904 the power to celebrate marriage was extended to Commis- sioners and staff officers of the Salvation Army. Proof should also be given that the hus- band and consequently the wife, were domi- ciled in Canada when the proceedings were commenced. If the wife is petitioning and has been deserted by her husband, who has gone to a foreign country, and the parties were domiciled in Canada at the time of de- sertion and the wife is so domiciled when she commences proceedings, it is presumed, unless evidence to the contrary is offered, that the husband has not gone abroad with the inten- tion of acquiring a fresh domicile. Such domi- cile having been established, Parliament has 42 " SENATE RULE 145. jurisdiction to decree divorce no matter when the marriage was contracted, or where the misconduct took place, and whether the par- ties are British subjects or not. Residence merely in Canada, short of domicile, is not sufficient to give jurisdiction. It is well settled in the American Courts that a wife has power for the purpose of divorce to obtain a domicile separate from that of her husband. Such is not the law in Canada, although so eminent a Judge as Sir Robert Phillimore expressed his opinion in Le Sueur v. Le Sueur, I. P. D. 139 (1876), that after desertion by the husband the deserted wife could acquire a domicile of her own. It must also be remembered that, in the Harris Case (1845), although the Bill was passed, it was disallowed by Her Majesty because neither of the parties was domiciled in Can- ada at the date of the passing of the Bill. In Le Mesurier v. Le Mesurier (1895), A. C. 517, the Judicial Committee of the Privy Council held, that the only true test of juris- diction to decree divorce according to inter- national law is the domicile for the time being of the consorts. It is consequently of the ut- most importance in considering whether or not Parliament has jurisdiction in any particular case to have a clear conception of the exact meaning of the word " domicile." SENATE RULE 145. 43 The following extract from Professor Dicey 's well known work on The Conflict of Laws will be found of assistance in determin- ing whether or not the domicile of the intend- ing applicant is such as to give Parliament jurisdiction. " Domicile " means the country Which . . . is considered by law to be a person's permanent home. " Independent person " means a person who as regards his domicile is not legally de- pendent upon the will of any. other person. " Dependent person " means any person who is not an independent person as herein, before defined and includes, (a) A minor, (&) A married woman. Rule 1. The domicile of any person is, in general, the place or country which is, in fact, his permanent home, but is in some cases the place or country which, whether it be in fact his home or not, is determined to be his home by a rule of law. Rule 2. No person can at any time be without a domicile. Rule 3. Subject to the exception herein- after mentioned, no person can have at the same time more than one domicile. 44 SENATE RULE 145. Exception. A person within the opera- tion of the Domicile Act, 1861, 24 and 25 Viet., c. 121, may possibly have one domicile for the purpose of testate or intestate succession and another domicile for all other purposes. Rule 4. A domicile once acquired is re- tained until it is changed. (a) In the case of an independent person, by his own act. (&) In the case of a dependent person, by the act of some one on whom he or she is de- pendent. Rule 5. Every independent person has at any given moment either (a) The domicile received by him at his birth (which domicile is hereinafter called the domicile of origin), or (&) A domicile (not being the same as his domicile of origin) acquired or retained by him while independent by his own act (which domicile is hereinafter called a domicile of choice). Rule 6. Every person receives at (or as from) birth a domicile of origin. (a) In the case of a legitimate child born during his father's lifetime, the domicile of origin of the child is the domicile of the father at the time of the child's birth. SENATE RULE 145. 45 In the case of an illegitimate or pos- thumous child, the domicile of origin is the domicile of the mother at the time of birth. (c) In the case of a foundling, the domi- cile of origin is the country where he was born or found. (d) In the case of a legitimated person, the domicile which his father had at the time of such person's birth becomes and is considered to be the domicile of origin of such person. Rule 7. Every independent person can acquire a domicile of choice, by the combina- tion of residence (factum) and intention of permanent or indefinite residence (animus manendi) but not otherwise. Rule 8. (a) The domicile of origin is re- tained until a domicile of choice is in fact ac- quired. (&) A domicile of choice is retained until it is abandoned, whereupon either, (1) A new domicile of choice is acquired, or (2) The domicile of origin is resumed. Rule 9. The domicile of every dependent person is the same as, and changes (if at all) with the domicile of the person on whom he is, as regards his domicile, legally dependent. 46 SENATE RULE 145. Sub-Rule 1. Subject to the exceptions hereinafter mentioned, the domicile of a minor is, during minority, determined as fol- lows: (1) The domicile of a legitimate or legi- timated minor is during the lifetime of his father the same as, and changes with, the domicile of his father. (2) The domicile of a minor, without liv- ing parents, or of an illegitimate minor, without a living mother, is the same as, and changes with, the domicile of his guardian, or may be changed by his guardian. Exception '1 to Sub-Rule. The domicile of a minor is not changed by the mere re- marriage of his mother. Exception 2 to Sub-Rule. The change of a minor's home by a mother or guardian does not, if made with a fraudulent purpose, change the minor's domicile. Sub-Rule 2. The domicile of a married woman is during coverture the same as, and changes with, the domicile of her husband. Rule 10. A domicile cannot be acquired by a dependent person through his own act. Sub-Rule 8. Where there is no person capable of changing a minor's domicile, he re- tains, until the termination of his minority, the last domicile which he has received. SENATE RULE 145. 47 Rule 11. The last domicile which a per- son receives whilst he is a dependent person, continues on his becoming an independent per- son, unchanged until it is changed by his own act. Sub-Rule 1. A person on attaining his majority retains the last domicile which he had during his minority until he changes it. Sub-Rule 2. A widow retains her late husband's last domicile until she changes it. Sub-Rule 3. A divorced woman retains the domicile which she had immediately be- fore or at the moment of divorce, until she changes it. Rule 12. The domicile of a person can al- ways be ascertained by means of either, (1) A legal presumption, The known facts of the case. Rule 13. A person's presence in a coun- try is presumptive evidence of domicile. Rule 14. When a person is known to have had a domicile in a given country he is pre- sumed, in the absence of proof of a change, to retain such domicile. Rule 15. Any circumstance may be evi- dence of domicile which is evidence either of a person's residence (factum) or of his inten- tion to reside permanently (animus manendi) within a particular country. 48 SENATE RULE 145. Rule 16. Expressions of intention to re- side permanently in a country are evidence of such intention, and in so far, evidence of domi- cile. Rule 17. Residence in a country is prima facie evidence of the intention to reside there permanently (animus manendi) and, in so far evidence of domicile. Rule 18. Residence in a country is not even prima facie evidence of domicile when the nature of the residence either is inconsist- ent with, or rebuts the presumption of the ex- istence of, an intention to reside there perma- nently (animus manendi). Persons whose employment rebuts the presumption of residence are said by Profes- sor Dicey to be, 1. Prisoners. 2. Convicts, 3. Exiles or refugees, 4. Lunatics, 5. Invalids residing abroad on account of health, 6. Officials generally, 7. Ambassadors, 8. Consuls, 9. Persons in military or naval service, 10. Persons in Indian service, 11. Ecclesiastics, SENATE RULE 145. 49 12. Servants, 13. Students. It is apparent therefore that there are three kinds of domicile, 1. Domicile of origin, 2. Domicile by law, 3. Domicile of choice. Lord Wensleydale has defined Domicile as " habitation in a place with the intention of remaining there forever, unless some circum- stances should occur to alter that intention." Domicile of origin is not the place where a person happens to be born ; but the home of his parents, where they are known. Domicile by law is that domicile which the law assigns to those who are dependent upon others. The husband's actual, and the wife's legal, domicile are the same, no matter where the wife may be personally living, and during the marriage the wife cannot acquire a sep- arate domicile for herself. The domicile of a child is that of his father while he is an infant. Upon the death of the father a domicile acquired by the widow becomes that of the infant. B.D. 4 50 SENATE RULE 145. Domicile of choice arises where a person, having the power to change his domicile, vol- untarily abandons his existing domicile and settles in another country with the intention of permanently residing there. The burden of proof is on the party set- ting up the abandonment of the domicile of origin, the presumption of law being against such intention. The acquisition of a new domi- cile is a question of fact not of law. Rule 48. The Court has jurisdiction to entertain proceedings for the dissolution of the marriage of any parties domiciled in Eng- land at the commencement of the proceedings. This jurisdiction is not affected by, 1. The residence of the parties, or 2. The allegiance of the parties, or 3. The domicile of the parties at the time of the marriage or 4. The place of the marriage, or 5. The place where the offence in respect of which the divorce is sought is committed. Rule 49. Subject to the possible excep- tion hereinafter mentioned the Court; has no jurisdiction to entertain proceedings for the dissolution of the marriage of any parties not domiciled in England at the commencement of the proceedings. Exception, SENATE RULE 145. 51 In the following circumstances, that is to say 1. Where a husband has, (a) Deserted his wife, or (6) So conducted himself towards her that she is justified in living apart from him, and 2. The parties have up to the time of such desertion or justification been domiciled in England, and 3. The husband has after such ,time ac- quired a domicile in a foreign country but the wife has continued to reside in England. The Court (semble) has on the petition of the wife jurisdiction to grant a divorce. Rule 86. The Courts of a foreign country have jurisdiction to dissolve a marriage of any parties domiciled in such foreign country at the commencement of the proceedings for divorce. This rule applies to, 1. An English marriage, 2. A foreign marriage. (a) A foreign divorce is not valid which is obtained by the collusion or fraud of the parties. 52 SENATE RULE 145. A foreign divorce is not valid if the proceedings are conducted in anyway con- trary to natural justice. Rule 87. Subject to the possible excep- tion hereinafter mentioned, the Court of a foreign country has no jurisdiction to dissolve the marriage of parties not domiciled in such foreign country at the commencement of the proceedings for divorce. Exception : The Courts of a foreign country where the parties to a marriage are not domiciled. have jurisdiction to dissolve their marriage, if the divorce granted by such Courts would be held valid by the Courts of the country where, at the time of the proceedings for di- vorce, the parties are domiciled. The next step before the Committee is to prove the adultery of the respondent, or such other ground for relief as may have been set forth in the petition. Evidence should also be given as to the terms upon which the parties lived together while cohabitation continued, and if the adultery complained of occurred af- ter separation, it should be shown that the separation was not due to the fault of the peti- tioner. The petitioner should also specifically deny condonation, collusion and connivance. By way of defence the respondent may, 1. Deny the facts alleged in the petition. The burden of proof is on the petitioner, who SENATE RULE 145. 53 must establish, by the evidence of himself and his witnesses, all the facts necessary to entitle him to relief: or allege 2. Condonation: which is complete for- giveness of all such previous misconduct as is known or believed to have occurred subject to the express or implied condition that no further matrimonial offence shall occur. If, after condonation, there should be a repetition of the offence, such repetition nullifies the con- donation, and the previous cause of complaint revives. Condonation may be the result of express agreement, or it may be implied from cohabi- tation after knowledge of the previous of- fence, but resumption of sexual intercourse is not absolutely conclusive of condonation by a wife. It is a question of fact for the Commit- tee. Forgiveness of marital infidelity is not to be presumed. 3. Collusion: This may be defined as a conspiracy between the husband and wife to obtain a divorce by suppression of the facts or by false manufactured testimony. It is the result of agreement, between the petitioner and the respondent, by which the respondent is to commit or seem to commit the offence to enable the petitioner to procure the divorce, or under which no defence is to be offered to the petition. Parties to divorce proceedings 54 SENATE RULE 145. should remain at arm's length. Communica- tions between them, with a view to facilitating the application, give rise to a suspicion of col- lusion which may be difficult to rebut. 4. Connivance: This differs from con- donation in that it precedes the commission of the offence which is complained of, while con- donation can only occur after the offence has happened. Connivance is the consent or in- difference of the complainant to the miscon- duct of which he complains as a cause for divorce. Where adultery is committed by one of the consorts by collusion with the other, there is necessarily also connivance. 5. Adultery on the part of the petitioner : In cases not provided for in the rules the prin- ciples upon which the Imperial Parliament proceeds in dissolving marriage are to be ap- plied to divorce proceedings before the Com- mittee (Rule 152) . It was always the practice in the House of Lords to reject evidence of the petitioner's adultery where it occurred after the commission of the adultery of whicli he complained. Where, however, the adultery of the petitioner occurred before that of the respondent the House of Lords always refused to pass the Bill. 6. Void Marriage : Since no divorce can be granted where no valid marriage relation exists it is, of course, a complete defence that the marriage is for some reason void, as that SENATE RULE 145. 55 at the time the marriage was celebrated one of the parties was already married, and had a husband or wife living, and that such prior marriage had not been dissolved. 7. No Marriage: It is a good defence that the parties were not married, or that their cohabitation was illicit when commenced and continued to be so. 8. Insanity when the adultery was com- mitted, has been held to be a good defence in the United States, because the offence is not committed voluntarily, and the offender was incapable of distinguishing between right and wrong, or of understanding the nature of the act. This would probably be considered a suf- ficient answer to a petition by the Committee. 9. The granting or rejecting of a petition being discretionary with Parliament it is com- petent for the respondent to set up by way of defence the delay of the petitioner in institut- ing proceedings, as from such delay both con- nivance and condonation may be inferred. Want of means has always been considered by Parliament a sufficient excuse for delay in presenting a bill for divorce. The respondent may also give evidence of cruelty, of wilful and inexcusable desertion, of separation, of neglect, or of conduct on the part of the peti- tioner conducing to the adultery complained of. 56 SENATE RULE 143. On this subject Sir Cresswill Cresswill says: " It must not be supposed that a hus- band can neglect and throw aside his wife, and afterwards if she is unfaithful to him, obtain a divorce on account of her infidelity." EULE 143. REPORT BY COMMITTEE DRAFT BILL MINORITY REPORT. After such hearing and inquiry the Com- mittee shall report to the Senate, stating whether the requirements of these rules have been complied with in all material respects; and, if it shall have been then found that any such requirement has not been so complied with, stating in what respect there has been default, and also stating the conclusions ar- rived at and the action recommended by the Committee. 2. The report shall be accompanied by the testimony of the witnesses examined, and by all documents, papers and instruments refer- red to the Committee by the Senate or received in evidence by the Committee. 3. If the report recommends the granting of relief to the petitioner it shall also be ac- companied by a draft approved by the Com- mittee, of a Bill to effect such relief. - SENATE RULE 143. 57 4. The minority may bring in a report stating the grounds upon which they dissent from the report of the Committee. B. 809, 814, sq. NOTES. After the taking of the evidence the Com- mittee considers the same behind closed doors. If it is decided to report the granting of relief the necessary Bill is prepared by the Law Clerk. In the following cases the preambles have contained no direct and specific charge of adultery against the respondent. The facts leading to an inference of adultery have been stated, but owing to the peculiar circum- stances of each case Parliament refrained from stigmatizing, in so many words, the con- duct of the respondent as adulterous, viz. : The Lowndes Case, Statutes of 1909, p. 215; The Ridout Case, Statutes of 1909, p. 293; The Hutcheon Case, Statutes of 1914, p. 367. If the Committee should report against the Bill, or if for any other reason it is not prosecuted to a conclusion, the petitioner is en- titled to a return of whatever remains of the deposit after payment thereout of all the necessary expenses. The Bill is composed of the preamble, which sets forth the facts upon which Parlia- ment bases the relief granted, and two enact- ing clauses. The first of these declares that 58 SENATE RULE 143. the marriage in question is thereby dissolved and shall be thenceforth null and void to all intents and purposes. The effect of this is to restore the parties to the status which they held before the solemnization of the marriage. The second clause enacts that the peti- tioner may at any time thereafter marry any woman whom he might lawfully marry if the dissolved marriage had never been solemnized. Parliament has never made a similar declara- tion with respect to the rights of the person from whom the divorce is obtained, but as the marriage tie is absolutely dissolved there can be no doubt that each of the parties can law- fully marry again. Where the circumstances warrant it, Par- liament occasionally grants other relief. For instance in the Whiteaves Case, Statutes of 1869, p. xv., the marriage contract was de- clared void. In the Holliwell Case, Statutes of 1878, p. viii., the husband was debarred from any interest in his wife 's estate. In the Riddell Case, Statutes of 1887, p. 336, The Lyon Case, Statutes of 1878, p. v., the Tudor Case, Statutes of 1888, p. 301, the Morrison Case, Statutes of 1888, p. 299, and the Harri- son Case, Statutes of 1892, p. 140, the petition- ing wives were given the sole custody of the infant children. In the Campbell Case, Statutes of 1879, p. 91, which was based on desertion, cruelty and SENATE RULE 143. 59 non-support and was an application for separ- ation or divorce a mensa et thoro, the Bill pro- vided for separation, maintenance of the wife and children by the husband, the custody of one of the children by the wife, and granted authority to the court to enforce the pro- visions of the Act. In the Pitblado Case, Statutes of 1905, p. 465, Isaac Pitblado, the petitioner, was awarded the custody of his children. The view at present held is that the ques- tion of custody of children is one falling within the competence of the Courts of the Provinces, and that the making of such a pro- vision would be an interference with civil rights, which, under the constitution, are un- der the sole control of the Provincial Legisla- tures. Notwithstanding this view, cases turning on special circumstances, may arise in which such relief will still be granted. In the Campbell Case, in which the ques- tion of the jurisdiction of Parliament to deal with the custody of children was the subject of much debate both in the Senate and the House of Commons, the contrary view pre- vailed, maintenance and the custody of child- ren being considered as matters incident to or growing out of the contract of marriage, and so within the jurisdiction conferred on 60 SENATE RULE 135. Parliament under the authority which it has to deal with marriage and divorce. Unless it should be otherwise provided by the Bill, the effect of divorce is to restore the parties with respect to their property to the position which they would have occupied had the marriage never been solemnized, the wife ceases to have any interest in her husband's estate and retains her own estate free from any claim by him. RULE 135. PRINTING OF EVIDENCE. Evidence taken before the Committee shall be printed apart from the Minutes of Proceedings of the Senate, and only in suf- ficient numbers for the use of Senators and Members of the House of Commons, that is to say, one copy for distribution to each Sen- ator or Member, ten copies for the parties and their counsel, and twenty-five copies to be kept by the Clerk of the Senate for pur- poses of record and reference. NOTE. The object of this rule is to prevent the indiscriminate distribution of evidence, which is often of an extremely lecherous nature. RULE 144. INTRODUCTION OF BILL FIRST READING. Upon the adoption of the report of the Committee, the Bill may be presented and read a first time; and thereafter no further reference of the Bill to the Committee shall be necessary, unless so ordered by the Senate. NOTES. The Bill should be introduced by the Sen- ator who presented the Petition, and having been read a first time, the Senator in charge then moves that the Bill be placed on the order paper and be read a second time on a date which is then fixed. On the day so fixed the Senator in charge moves that the Bill be read a second time, and be placed on the order paper for a third read- ing on a named day. RULE 146. COMMITTEE MAY HEAR COUNSEL. The petitioner, the respondent and, if the Committee sees fit, any other person affected by the proceedings had, may be heard before the Committee in person or by counsel learned 62 SENATE RULE 146. in the law of the bar of any province in Can- ada. B. 813. NOTES. Under this rule counsel only are entitled to appear before the Committee. The proceed- ings being judicial, counsel appear in their robes. It is not customary to hear more than two counsel for each party. The following extract is taken from Gem- mill on Divorce : " Parliamentary Solicitors. The services of a Parliamentary Solicitor at Ottawa are indispensable for the safe conduct of a bill of divorce. He should be in attendance at the several meetings of the Select Committee at which steps in the case are taken, first seeing that all papers or documents leading to proofs, and the petition and the bill are in proper form. An application of a simple character occupies fully six weeks in passing both Houses during which period it receives three readings in each House, and is before Commit- tees at least half a dozen times ; on any one of these occasions important questions touching the case may unexpectedly present themselves, and end in the premature death of the Bill. It will, therefore, be readily seen that a local Solicitor should be authorized to keep a gen- eral supervision over the case, and push it on SENATE RULE 147. 63 from one stage to another. Neither the Sen- ator or Member in charge of the Bill, nor the officers of Parliament, are under any obliga- tion to speed it or to bring it to a successful is- sue. As in Courts of Law, a Solicitor experi- enced in Parliamentary practice, can materi- ally assist the Committee in securing compli- ance with the Forms and Procedure and iu helping Counsel at the hearing of the evidence, to elicit the facts of a case and apply the legal principles bearing on it." Even though the respondent does not ap- pear the petitioner must prove his case strictly in all necessary particulars, viz., as to domi- cile, marriage, ^dentity of parties, the charge upon which the petition is based, and must negative collusion, condonation and conniv- ance. RULE 147. PARTIES TO BE EXAMINED ON OATH OR AFFIRMA- TION THE CANADA EVIDENCE ACT TO APPLY. The petitioner and, if the respondent ap- pears, the respondent, and all witnesses pro- duced before the Committee, shall be examined upon oath, or upon affirmation in cases where witnesses are allowed by the law of Canada to affirm; and the law of evidence shall, subject to the provisions in these rules, apply to pro- ceedings before the Committee, and shall be observed in all questions of fact. (54 SENATE RULE 147. 2. Declarations allowed or required in proof, may be made under The Canada Evi- dence Act, 1893. NOTES. It is usual for the Chairman of the Com- mittee to administer the oath or affirmation to each witness. By section 30 of the Revised Statutes of Canada, chapter 10, it is provided that any oath or affirmation under this Act may be administered by : (a) The Speaker of the Senate. The Chairman of any Committee of the Senate. (c) Such person or persons as may from time to time be appointed for that purpose, either by the Speaker of the Senate ....... or by any standing order of the Senate. No standing order on the subject has been passed by the Senate. Even though the application is not op- posed, the petitioner must prove his case strictly in every particular, viz. : as to domi- cile, marriage, identity, and the offence in re- spect of which relief is sought. The former rule provided that the rules of evidence in force in Canada as to indictable offences should apply to proceedings before the Committee. The present rule makes the law of evi- dence contained in The Canada Evidence Act, SENATE RULE 148. 65 R. S. C., chapter 145, apply to divorce pro- ceedings. RULE 148. SUMMONS FOR WITNESSES SERVICE TAXATION OF EXPENSES. Summonses for the attendance of wit- nesses and for the production of papers and documents before the Senate or the Standing Committee on Divorce shall be under the hand and seal of the Speaker of the Senate, and may' be issued by the Clerk of the Committee, at any time after the date of the hearing has been appointed, to the party applying therefor. Such summonses may be served by any literate person, or, if so ordered by the Senate or by the Committee on Divorce, shall be served by the Gentleman Usher of the Black Rod or by any one authorized by him to make such service. The reasonable expenses of making such service and the reasonable expenses of every witness for attending in obedience to such summons shall be taxed by the Chairman of the Committee. B. 813. NOTE. Summonses are obtainable from the Law Clerk of the Senate, who is the Clerk of the B.D. 5 6ft SENATE RULE 149. Committee. They are not issued in blank ; the solicitor in charge is required to furnish the name and address of each witness who is to be summoned. Personal service is required ac- companied by payment of travelling expenses. Any literate person is competent to effect service. The Chairman of the Committee has power to fix the amount payable to each wit- ness for his time and expenses. No tariff of fees and expenses has been established. In view of the importance of divorce applications the cautious solicitor will not adhere strictly to court tariffs, but will see that the witness is properly compensated for his time and trouble. RULE 149. DISOBEDIENCE OF WITNESS COMMITTAL TO CUSTODY. In case any witness upon whom such sum- mons has been served refuses to obey the same, such witness may by order of the Senate be taken into custody of the Gentleman Usher of the Black Rod, and shall not be liberated from such custody except by order of the Senate and after payment of the expenses incurred. B. 814. NOTE. Where a witness, who has been properly served with a summons and who has been paid SENATE RULE 150. 67 or tendered his proper expenses, refuses to obey the summons, the Committee will make a special report of the circumstances to the House, and an order will then be made by the House requiring such witness to attend. In default, he may be ordered to be taken into the custody of the Usher of the Black Rod. Such an order becomes ineffective on the pro-, rogation of Parliament. The expenses refer- red to are those incurred in arresting and maintaining the witness while in custody. RULE 150. FORMS. The subjoined forms, varied to suit the circumstances of the case, or forms to the like effect, may be used in proceedings for divorce. NOTE. While strict compliance with the forms is not essential, the solicitor must be careful to see that all facts necessary to give full notice of the grounds on which the divorce is sought are alleged with particularity. RULE 151. RULES OF SENATE TO APPLY. All rules of the Senate which by reason- able intendment are applicable to proceedings 68 SENATE RULE 152. in divorce, shall, except in so far as altered or modified by these rules, or inconsistent there- with, apply to such proceedings. RULE 152. PROVISION FOR CASES NOT PROVIDED FOR IN THE RULES. In cases not provided for by these rules the general principles upon which the Imperial Parliament proceeds in dissolving marriage and the rules, usages and forms of the House of Lords in respect of divorce proceedings may, so far as they are applicable, be applied to divorce proceedings before the Senate and before the Standing Committee on Divorce. XOTE. This rule is permissive merely, not im- perative, and though the Senate in divorce legislation looks to the House of Lords for the purpose of ascertaining the course followed there, it has never felt itself bound to accept the decision of the House of Lords as binding and conclusive. The Senate follows preced- ents when they commend themselves to the judgment of the Senate, and not otherwise, the decision of the House of Lords on Bills of Divorce not having the weight which attaches to the decisions of the ordinary legal tribunals. CHAPTER IV. PROCEDURE IN THE HOUSE OF r* r\ *" r /-\ -VT cv COMMONS. The House of Commons not having passed any special rules relating to Divorce Bills, such bills are in that House governed by the rules and practice relating to Private Bills. As already mentioned, according to Rule No. 51 of the Commons Private Bills require two months advertising in the Canada Gazette and in the local newspaper. In practice the advertisement in accordance with the Senate rule serves for the Commons, subject only to this difference, that for the latter, the ad- vertisement must be published for two months during the interval of time between the close of the preceding Session and the consideration of the petition. Rule 51. Copies of the newspapers, containing the first and last insertion of the notice accom- panied by a statutory declaration of publica- tion, should be filed with the Clerk of the Standing Orders Committee. There is no rule of the House of Com- mons requiring service on the respondent. The House fees having been paid in the Senate, where the bill originated, no further fee is payable in the House of Commons. 70 PROCEDURE IN HOUSE OF COMMONS. The proceedings in the Commons are in- itiated by the presentation of a petition ad- dressed to " The Honourable The House of Commons in Parliament assembled," and otherwise identical in form with that pre- sented in the Senate. This petition must be signed by the applicant, and should be handed to a member of the House to be presented within the first three weeks of the session. Rule 49. The petition, having been presented, goes without special order to the Committee on Standing Orders, Rule 53, to report on the due publication of the advertisement, and to see that the petition does not ask any relief other than that of which notice has been given by advertisement. Upon the Committee reporting that the rules have been duly complied with, no further step is taken in the House of Commons until the Bill is sent down from the Senate. The Bill having been passed by the Senate is sent down to the House of Commons for consideration, accompanied by a copy "of the evidence, it is then read a first time in the Commons, and placed on the order paper for a second reading, after which the Bill and the evidence are referred to iihe Private Bills Committee for consideration. Each member of the House is furnished with a copy of the evidence. PROCEDURE IN HOUSE OP COMMONS. 71 When the Bill comes before this Com- mittee, the evidence is considered. Frequently a discussion occurs as to the sufficiency of the evidence. If the Bill passes the Committee the Chairman so reports to the House. If the report is adopted by the House, the Bill is placed on the order paper for the fol- lowing day for consideration in Committee of the whole, and after such consideration and report by the Committee, the Bill is read a third time and passed. The final act in the passing of a Private Bill is obtaining the Royal assent. This is occasionally given, to Bills that have passed both Houses, from time to time during the Session, or otherwise at the conclusion of the Session. It is the duty of the solicitor in charge of a Bill to see that it is included in the list of Bills submitted for the Royal assent. RULES OF THE SENATE RELATING TO DIVORCE. Petitions, 133. All petitions for divorce and all &c., referred . . to com- matters arising out of petitions for, or rmttee on Divorce. bills of divorce, shall be referred to the Standing Committee on Divorce, and no reference to any Committee other than that Committee shall be necessary with respect to such petitions, bills and mat- ters. B. 800, sq. Notice of Notice of the day, hour and place of meetings of / 7 j. committee, every sitting of the Committee shall be given by posting up the same in the lobby of the Senate not later than the afternoon of the day before the time appointed for such sitting. B. 807. ' f h in h'. '!i{ ) T" Reporting 134. The Official Reporters of The of evidence. Senate, or one of them, when notified by the Chairman, shall be in attendance at each sitting of the Committee, and, hav- ing first been duly sworn to discharge faithfully such duty, shall take down in shorthand and afterwards extend the evi- dence of witnesses examined before the Committee, which evidence shall be printed under the supervision of the Clerk of the English Journals. B. 807. Evidence, 135. Evidence taken before the Corn- how printed. . mittee shall be printed apart from the RULES OP SENATE. 73 Minutes of Proceedings of the Senate, and only in sufficient numbers for the use of Senators and Members of the House of Commons, that is to say, one copy for distribution to each Senator or Member, ten copies for the parties and their coun- sel, and twenty-five copies to be kept by the Clerk of the Senate for purposes of record and reference. B. 815. 136. Every applicant for a Bill of Notice of Divorce shall give notice of his or her tow given.' intended application, and shall specify therein from whom and for what cause such divorce is sought, and shall cause such notice to be published during at least three months before the consideration by the Committee on Divorce of his or her petition for the said Bill, in the Canada Gazette and in two newspapers published in the district in Quebec, Manitoba, Sas- katchewan, Alberta, British Columbia or the North-west Territories, or in the county or union of counties in other pro- vinces, wherein such applicant usually resided at the time of the separation of the parties; but if the requisite number of papers cannot be found therein, then in an adjoining district or county or union of counties. -.j;if Ti'-iiv; .titHbn,'n <>if-1 H> ^bolv/oajl Notices given in the Provinces of Provisions , s to notice. Quebec and Manitoba are to. be published 74 RULES OF SENATE. in one English and one French news- paper, if there be such newspapers pub- lished in the district, but otherwise shall be published in one newspaper in both languages. The notice may be in the sub - joined form " A." If a notice given for any session of Parliament is not com- pleted in time to allow the petition to be dealt with during that session, the peti- tion may be presented and dealt with dur- ing the next ensuing session, without any further publication of such notice. B. 802. service of 137. A copy of the said notice and Notice and Petition on a copy of the petition to be presented respondent. Jr * / shall, at the instance of the applicant, and not less than two months before the consideration by the Committee of the petition, be served personally, when that can be done, on the person from whom the divorce is sought, who is hereinafter called " the respondent." If the residence of the respondent is not known or personal service cannot be effected, then, if it be shown to the satis- faction of the Committee that all reason- able efforts have been made to effect per- sonal service, and, if unsuccessful, to bring such notice and petition to the knowledge of the respondent, what has been done may be deemed and taken by RULES OF SENATE. 75 the Committee as sufficient service. B. 803. 138. No petition for a Bill of divorce Petition, shall be presented to the Senate after the e&ed. first sixty days of the Session. B. 805. 139. The petition of an applicant for Form and a Bill of divorce must be fairly written p^mon 80 and must be signed by the petitioner, and should briefly set forth the marriage, the names in full of the parties thereto, their ages and occupations, when, where and by whom the ceremony was performed, the domicile and residence of each of the parties at the time of the marriage, their matrimonial domicile, residence, and any change thereof, the material facts upon which the petitioner relies as the grounds on which relief is asked, and the nature of the relief prayed for. The petition should also negative connivance at, or condonation of the wrong complained of and collusion in the application for divorce. 2. The allegations of the petition Allegations, * how verified. must be verified by declaration of the petitioner, under the Cartiada Evidence Act. B. 805. 3. The copy of the petition served copy served, v * ~ how en- upon the respondent shall have endorsed 76 RULES OF SENATE. thereon, or appended thereto, the follow- ing information : (1) The petitioner's residence at the time of service. (2} A Post Office address in Canada at which letters and notices for the petitioner may be delivered. (5) The name and address of the soli- citor, if any, acting for the petitioner. (4) If such solicitor's address is not at Ottawa, the name and address of some agent for him at Ottawa, upon whom all notices and papers may be served. (5) That if the respondent desires to oppose the granting of the divorce and to be heard by the Senate Commit- tee on Divorce, the respondent must send a notice to that effect to the Clerk of the Senate at the Parliament Build- ings, Ottawa, within two months from the date of service upon the respondent, and must in the notice to the Clerk of the Senate give: (a) The respondent's residence at the time of sending such notice. (6) A Post Office address in Canada at which letters and notices for the re- spondent may be delivered. RULES OF SENATE. 77 (c) The name and address of the solicitor, if any, acting for the respon- dent. (d) If such solicitor's address is not at Ottawa, the name and address of some agent for him at Ottawa upon whom all notices and papers may be served. .>