Clark V. Craig

Description

BACKGROUND To understand the issues and problems which confront family lawyers and their clients today, it helps to have an idea of our recent history. What follows is not a research paper on the history of Family Law. Many law reform commissions and academics have already done so in a far more comprehensive manner than I could ever hope to do. Instead, I will offer some personal recollections and observations to give the reader some perspective on the current state of the law and where we might be going. When I started practice in the early 70 ’s Ontario family law was governed by a quaint piece of legislation known as The Deserted Wives and Children ’s Maintenance Act. Under this statute, only wives who could prove that they had been deserted by their husbands could apply to the court for support. (No husbands, common law or same sex partners, Please! This was Ontario). The requirement of proving desertion led to epic struggles in the family courts as to whether a wife had been “constructively deserted ” i.e. left with no choice but to leave home for the sake of her own safety or health or whether she had done so voluntarily. In the former case she would receive support; in the second, no support regardless of need or the husband ’s ability to pay. Even for a wife who managed to obtain a support order, a single act of adultery following the separation of the spouses was sufficient to disqualify her from support forever. Private detectives were routinely employed to track deserted spouses, peeking in windows and conducting all night vigils in the hopes of obtaining evidence of a tryst with another man, thereby ending forever the support claim under provincial law. Divorce law was a little bit more progressive, thanks to a new Divorce Act which was passed in 1968. Instead of having adultery as the only ground of divorce, either spouse was able to sever the ties of matrimony after three years of separation (five if the party who had deserted was the petitioner.) Only if one of the parties could prove adultery or cruelty could a divorce be obtained at an earlier date. All divorce hearings, whether contested or not required a hearing in open court. Many counties developed a practice of instituting a “divorce day ” each month when all of the couples seeking an uncontested divorce would appear in court with their black robed lawyers for a mass confession. One by one these couples would take the witness stand in the overflowing courtroom to tell a totally disinterested judge the lurid details of his or her marriage and why it was now in order to sever the bond of holy matrimony. The legal necessity for corroboration required that a “witness ” verify the adultery or cruelty as alleged. Support awards for spouses and children were negotiated or court ordered on an individual basis with little or no consistency. Amounts varied widely from region to region and even from family to family based upon the individual settlement or court order. Neighbouring families in exactly the same circumstances might have drastically different arrangements. Property law was massive confusion, with no significant legislation to guide the judiciary or lawyers.

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