Attorney General (Que.) and Glassco v. Cumming, [1978] 2 SCR 605

Supreme Court of Canada

Attorney General (Que.) and Glassco v. Cumming, [1978] 2 S.C.R. 605

Date: 1978-05-01

Attorney General of the Province of Quebec (Intervenor)

and

Dame Diane Mary Glassco (Plaintiff) Appellants;

and

Archibald Cumming (Defendant) Respondent.

1978: February 9; 1978: May 1.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Divorce—Alimony—Dissolution of marriage by private Act in 1957—Motion pursuant to art. 212 of the Civil Code, passed in 1969—Meaning of “divorce” in art. 212—Divorce Act, R.S.C. 1970, c. D-8—Civil Code, arts. 185, 211, 212.

In March 1957, an Act was passed by the Parliament of Canada in response to a petition by Dame Glassco, dissolving her marriage to respondent. At the time, there was in the Civil Code no provision concerning divorce. In 1969, however, the legislature of Quebec adopted amendments to the Civil Code, allowing the court “in the case of separation of bed and board or of divorce” to order one consort to pay alimony to the other consort (art. 212 C.C.). It was pursuant to this provision that appellant applied to the Superior Court in 1973 and obtained an alimentary pension of $800 per month.

Holding that the word “divorce” used in art. 212 C.C. did not apply to divorces granted by private Act, as in the case at bar, the Court of Appeal reversed the judgment of the Superior Court. Appellant is appealing the decision in this Court. The Attorney General of the Province of Quebec is also a party to this appeal to support the constitutionality of the legislation on which the trial judgment was based.

Held: The appeal should be dismissed.

To interpret the scope of the word “divorce” in art. 212 of the Civil Code, it must be read in the context of the 1969 Act amending the Civil Code, and especially in light of the new arts. 185 and 211. The divorce to which these articles refer can only be divorce granted by a court pursuant to the Divorce Act of 1968, legislation to which it refers, or similar legislation of another state. Article 212 therefore does not refer to a dissolution of marriage granted by private Act, and the motion of

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appellant, whose marriage was dissolved in 1957 by such an Act, is without basis.

In view of this finding, it is not necessary to decide the constitutional question which led to the intervention of the Attorney General of the province of Quebec.

APPEAL from a decision of the Court of Appeal of Quebec[1] reversing a judgment of the Superior Court[2] awarding an alimentary pension. Appeal dismissed.

Olivier Prat, for appellant the Attorney General of the Province of Quebec.

Richard McConomy, for appellant Dame Diane Mary Glassco.

Graham Nesbitt and Christopher Hoffman, for the respondent.

The judgment of the Court was delivered by

PIGEON J.—The appeal by leave of this Court is from a judgment of the Court of Appeal of Quebec, setting aside an award of alimony made by the Superior Court, to appellant Dame Glassco. The Attorney General of the Province of Quebec intervened in the Court of Appeal to support the constitutionality of the legislation on which the award was based.

Dame Glassco and respondent Archibald Cumming were married at Westmount on September 22, 1951. A Superior Court judgment of September 25, 1956 awarded the wife separation from bed and board, custody of her minor children and an alimentary pension for them. This pension was increased several times and ultimately discontinued by judgment rendered on June 19, 1973. Long before that, however, specifically on March 28, 1957, an Act was passed by the Parliament of Canada in response to a petition by Dame Glassco; the first section of this Act reads as follows:

1. The said marriage between Diana Mary Beatrice Glassco and Herbert Archibald James Cumming, her

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husband, is hereby dissolved, and shall be henceforth null and void to all intents and purposes whatsoever.

It is unanimously admitted that after this Act dissolving the marriage, Dame Glassco could no longer claim alimony from respondent. There was in the Civil Code of the province of Quebec no provision on which such a claim could have been based. In 1969, however, the legislature adopted amendments to the Civil Code (c. 74) which included the following provision:

212. In the case of separation from bed and board or of divorce, the court may order one consort to pay such sums as are deemed reasonable for the maintenance of the other consort and of the children. Such sums are paid to the other consort or to an administrator in one or more instalments accordingly as the court decides and on such other conditions as it deems appropriate.

It was pursuant to this provision that Dame Glassco applied to the Superior Court by a motion dated August 10, 1973, judgment on which was pronounced November 21, 1973, awarding an alimentary pension of $800 per month.

The Court of Appeal ordered a re-hearing, which took place before nine judges. The judgment below was reversed with two judges dissenting.

The first question to be examined was obviously the interpretation of art. 212 C.C. Does the word “divorce” used in this provision refer to a private Act such as the one passed at the request of Dame Glassco, or does it not rather apply exclusively to divorces granted by a court pursuant to the Divorce Act or similar legislation of a foreign country in which the spouses are domiciled? On this point, Rinfret J.A., now Chief Justice, said:

[TRANSLATION] Again, theoretically, Parliament has jurisdiction to provide retroactively that notwithstanding a divorce and vested rights, persons formerly married remain subject to an obligation to pay an alimentary pension to their former spouse; but there should be no ambiguity on this point in the wording of the legislation.

In 1968, by its Divorce Act, now R.S.C. 1970, c. D-8, Parliament did not go that far, but it did make important changes in the conditions for divorce and the effects

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of divorce as regards the spouses and the consequences of the marriage.

Acting within its jurisdiction over divorce, it established a new concept, which differed in certain respects from the old one: it provided that the marriage bond, which until that time was completely abrogated by divorce, would thenceforth be only partially abrogated, so that, for persons granted a divorce under the new legislation, the bond would disappear regarding the right of the former spouses to marry a person of their choice, but it would continue to exist respecting the obligation of either of them to provide, and the right of the other to receive, an alimentary pension under certain conditions specified in the Act.

It is to be noted that the words “husband” and “wife” are used in s. 11.

This is because when the decree nisi of divorce is granted the parties are still husband and wife and will cease to be so only by the final judgment.

In 1969, the legislature introduced this new concept of partial existence of the marriage bond into the Civil Code, several articles of which were amended to give it effect.

I will consider only a few of these articles.

Article 185 now reads:

185. Marriage can only be dissolved by the death of one of the consorts or by a divorce legally granted.

What does the expression “a divorce legally granted” mean if not a divorce granted pursuant to the federal statute of 1968?

This appears, moreover, from the actual wording of the new art. 200 C.C., which refers to the suit for divorce, and of art. 221, which may be regarded as defining the word “divorce” as used in provincial legislation:

211. Divorce produces its effects (including those contemplated in art. 185 C.C.) only from the date on which a final judgment makes absolute the decree nisi which granted it.

Until such date, the wife may demand the conservatory remedies contemplated in articles 814 and 815 of the Code of Civil Procedure.

This is a direct and unequivocal reference to the Divorce Act; it has nothing to do with a divorce obtained by federal statute or resolution.

In my view this is the only possible and logical meaning of the word “divorce” as used in art. 212 C.C.

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This opinion was concurred in by Owen, Brossard, Dubé and Mayrand JJ.A., Brossard J.A. adding the following observation:

[TRANSLATION] First I would emphasize that the 1957 Act by which the marriage between the parties to the case at bar was declared to be dissolved and extinguished did not stipulate for or reserve to Dame Glassco, either retroactively or for the future, the right for her to receive an alimentary pension from appellant Cumming, and that from the time this Act was passed, any marriage bond between the parties was extinguished.

Dubé J.A. added:

[TRANSLATION] In common with Rinfret and Mayrand JJ.A. and with respect for any contrary opinion, I believe that, like s. 11 of the 1968 Divorce Act, which it was designed to introduce into our Civil Code, art. 212 C.C. applies only to parties divorced under the new 1968 Divorce Act. Thus, even though art. 212 uses the general term “divorce”, the preceding article, art. 211, which was enacted by the same bill on the same date (18 Eliz. II, Bill 8, s. 14), clearly indicates that divorces granted under the 1968 Act only are contemplated:

Art. 211. Divorce produces its effects only from the date on which a final judgment makes absolute the decree nisi which granted it (emphasis added).

Nothing in what the dissenting judges wrote appears convincing to me. Lajoie J.A. said:

[TRANSLATION] Art. 185 says:

Marriage can only be dissolved by the death of one of the consorts or by a divorced legally granted.

If the word “divorce” in this article refers only to divorces granted under the 1968 statute and not to those decreed by Act of Parliament or Senate resolution, we would have to conclude that in the eyes of the provincial legislator persons divorced before 1968 are still married.

This involves, in my view, a misconception of the special nature of the dissolution of marriage by private Act. When the Civil Code was adopted such statutes, though not common, were not unknown. Nevertheless, art. 185 stated:

185. Marriage can only be dissolved by the natural death of one of the parties; while both live, it is indissoluble.

This is because the power of the legislator to make exceptions by private Act exists in relation to any

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rule of law. It cannot therefore be taken into account when drafting legislation; otherwise it would have to be referred to everywhere. The legislator can undoubtedly pass a private Act to extinguish any obligation whatsoever, yet private Acts are not mentioned in the list of methods of extinguishing obligations contained in art. 1138 of the Civil Code.

At the hearing counsel for Dame Glassco argued that she was asking only for the same treatment that would be allowed to a woman from another province who was granted a divorce in 1957. The answer to this argument I find in the opinion of Mayrand J.A., where I read:

[TRANSLATION] In 1973 the Supreme Court of Alberta awarded alimony to a woman who had been granted a divorce in 1963, that is before the Divorce Act was passed (Caldwell v. Caldwell (1973), 32 D.L.R. (3d) 635). Her petition, however, was based on the Divorce and Matrimonial Causes Act, 1857, of the United Kingdom, which was in force in Alberta at the time of her divorce. Since this Act gave a divorced woman the right to claim alimony from her ex-husband even after the divorce had been granted, the conclusion was that the Divorce Act of 1968 did not deprive the woman of a right that she already had under the earlier legislation. This solution was justified in view of s. 22(2)(a) of the Divorce Act (formerly s. 25(2)(a)):

(a) any proceedings for divorce commenced in any court in Canada of competent jurisdiction before the 2nd day of July 1968 and not finally disposed of before that day, shall be dealt with and disposed of in accordance with the law as it was… (emphasis added).

In the case at bar a subsequent provincial statute is sought to be applied notwithstanding the federal divorce Act of 1957; in Caldwell, an earlier statute referred to in the Divorce Act of 1968 was applied.

Having come to the conclusion that the word “divorce” in the new art. 212 of the Civil Code means a divorce granted by a court and does not refer to a dissolution of marriage granted by private Act, it is unnecessary to consider the other reason, which found favor with some of the judges of the Court of Appeal and which Tremblay J.A. stated as follows:

[TRANSLATION] …If art. 212 C.C. was interpreted as applying to the parties in the case at bar, it would

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clearly mean that the provincial legislature proceeded to revive the obligation to provide maintenance, which had been extinguished, and therefore that the provincial legislature amended a valid federal statute, which is constitutionally impossible.

Save in exceptional circumstances, it is not desirable to express an opinion on a question of law which it is not necessary to decide in order to dispose of the case at hand, especially when it is a constitutional question. I will not therefore express any opinion on this question which led to the intervention of the Attorney General of the province of Quebec.

I am of the opinion that the appeal should be dismissed. In accordance with the condition on which he was granted leave to appeal, the Attorney General of the province of Quebec will pay respondent’s costs.

Appeal dismissed.

Solicitors for the appellant the Attorney General of the province of Quebec: de Grandpré, Colas, Amyot, Lesage, Deschênes & Godin, Montreal.

Solicitors for the appellant Dame Glassco: Beaulieu, Carisse, Szemenyei, Paiement, Semeniuk, Boisvert & Pickel, Montreal.

Solicitors for the respondent: Courtois, Clarkson, Parsons & Tétrault, Montreal.