ALIMONY IN CANADA.

BY THE EDITOR.

The action for alimony is very common in Canada. It was resorted to, no doubt as a substitute for the remedy provided by the Law of Divorce as it once prevailed in England under the Ecclesiastical Courts, and as it still exists under the Civil Court which replaced them in 1857.

Each of the Provinces of Ontario, Manitoba, Saskatchewan and Alberta has the following enactment:The Court shall have jurisdiction to grant alimony to a wife who would be entitled to alimony by the law of England or to any wife who would be entitled by the law of England to a divorce and alimony as incidental thereto, or to any wife. whose husband lives separate from her without any sufficient cause and under circumstances which would entitle her by the law of England to a decree for restitution of conjugal rights.

The Western Provinces transcribed their enactments literally from the Revised Statutes of Ontario 1887, cap. 44, section 29.

I find however that the first enactment on the subject appears in the statutes of Upper Canada, 7 Wm. IV. cap. 2, section 3, in these words:-"The Court of Chancery shall have all the power, authority and jurisdiction in all cases of claims for alimony that are exercised and possessed by any Ecclesiastical or other Court in England."

I will assume for the purpose of the views presented by this article that this phraseology was replaced by that used in the Revised Statutes of 1887 as I have set it out, and that Ontario had it in the revised form at the coming into force of the B. N. A. Act, 1867. On that assumption the enactment in Ontario is not impugnable as ultra vires. But the Provinces of Manitoba, Saskatchewan and Alberta are in a different category. They are created by and under the

B. N. A. Act, section 91 (26) of which reposes in the Parliament of Canada the exclusive legislative authority to make laws relating to "Marriage and Divorce;" and any enactment by a Provincial Legislature since 1867 in contravention of this would be ultra vires.

Before discussing the question of contravention, it is necessary to say that the right of a wife to sue for, and the jurisdiction of the Court to award, alimony were and are part of the English Law of Divorce. With this law the three Western Prairie Provinces were invested by enactments of the Parliament of Canada, but for 30 years they were wholly oblivious of the fact till the present writer by an Article published in the CANADIAN LAW TIMES (1917), Vol. XXXVII., page 687, startled them to its realization and convinced them of its truth.

It was during that period of semi-somnolence that the legislators of the West adopted the enactment of Ontario as I have set it out, and placed it on their statute books. They never questioned their authority to do so; and the Courts have since granted alimony under it without its validity or effectiveness being ever disputed.

Even now after the Privy Council has finally affirmed that the Western Provinces have the English Law of Divorce, the trial lists at every sitting of the Court bristle with alimony actions.

It seems therefore. to be not only opportune but a duty incumbent on the writer whose expositions of Divorce Law resulted in such a beneficent achievement for the West to make an examination and exposition of this Alimony enactment.

When this enactment was made there was no Right, known to English Law, of a Wife to Alimony or to separate maintenance, and no jurisdiction or authority to award it, except as an adjunct of a Divorce Decree -a vinculo or a mensa et thoro; or a Decree absolute or of Judicial Separation. Neither the Common Law nor the Equity Jurisprudence of England recognized

any other Right; and even in the Courts administering Divorce Law the right of a wife to alimony was by no means absolute. It was entirely discretionary; and the Court frequently withheld it even when granting to the wife a decree of Divorce or Separation.

The only Right that a Wife living apart from her husband without judicial sanction had, was a right to pledge his credit for her maintenance; and then, not she, but the person giving the credit could sue the husband for recovery of the amount of such credit.

This Right itself was destroyed by the granting of a Divorce decree in any of the forms I have named; and in substitution for it the Court had a discretionary authority to attach to its Decree an Order for the husband to pay an alimony to his wife. If it refused to make such an Order the wife was without redress, nor could she any longer pledge her husband's credit.

This Alimony enactment was made both in Upper Canada and in the Western Provinces when none of them even claimed to have the English Law of Divorce. Now, however, the West has it, as I have stated; but Ontario so far makes no pretence to it though it was, even when administered by the Ecclesiastical Courts, part of the Common Law of England, and it was more emphatically and unquestionably so, after its transfer to a Civil Common Law Tribunal ten years before the Dominion of Canada was created.

None of the Canadian enactments constitute or establish a Right to alimony as part of a Law of

Divorce.

An enactment of Upper Canada, however, before Confederation creating in, and conferring upon, a wife

a new or

independent Right to alimony would be intra

vires and good Law in the Province of Ontario to-day. But such an enactment by Manitoba, Saskatchewan or Alberta would clearly be ultra vires as an infringement of the exclusive legislative authority of the Parliament of Canada under section 91 of the B. N. A. Act,

1867.

The matter does not rest here, however, for the greatest question of all remains: DOES THE ENACTMENT WHICH I HAVE SET OUT CREATE OR CONFER A RIGHT TO ALIMONY IN THE CIRCUMSTANCES STATED BY IT, OR AT ALL EITHER IN ONTARIO OR MANITOBA OR SASKATCHEWAN OR ALBERTA?

It makes no pretence to do so. It is emphatically an enactment conferring a Jurisdiction. The difference between Law and Jurisdiction is radical. It was fully discussed in the Divorce controversy. In a statute, Law is the creation or establishment of a Right; and Jurisdiction is the authority delegated by the Sovereign to a Tribunal to apply the sanction of Law to the enforcement of a Right.

Jurisdiction while it cannot make Law or establish a Right is the complement of both Law and Right. It is the authority which executes the Law's behests. It is not Law but an instrument of Law which must exist or be established before jurisdiction can operate.

Now there was no existent Right in a Wife to Alimony independent of a Divorce Decree in Upper Canada or in any of the Provinces named when this enactment was passed. By this enactment no such Right is created or established or even declared; and the Jurisdiction which it confers, though valid in all the Provinces, is entirely abortive for want of a Right to which it can be applied.

A Right could not be implied or inferred merely by an enactment of a Jurisdiction; and more particularly a Right unknown to English Law and repugnant to its principles.

It would require a clear and emphatic enactment to establish such a Right; and as no such enactment exists, the conclusion is inevitable that the action for alimony is and always was unsustainable under the enactment set forth.

None of the Provinces can now supplement this imperfect piece of legislation; and the Parliament of Canada which alone could do it, is hardly likely to

assist in removing the absurdities and redressing the injustices which its stoical lackadaisicalism on matters of Marriage and Divorce has been generating for 50 years.

I am convinced that no judicial interpretation of this enactment has ever been made either in Ontario or any of the Western Provinces.

The first enactment in Upper Canada only conferred on the Court of Chancery the powers and jurisdiction of the Ecclesiastical Courts in England. Those Courts only granted alimony with Divorce decrees, as I have already stated. Upper Canada or Ontario never claimed to have a Divorce Law, so that that enactment effected nothing.

How the original enactment expanded and changed to its present form leads me too much into the historical caprices of the past; but how its metamorphosis should have gone on without any legal eye seeing that it was devoid of the indispensable of Legality is almost incomprehensible. It may have been that the Jurisdiction was first conferred on the Court of Chancery to get over the bugbear which the English Ecclesiastical Courts always presented to the Canadian Lawyer and Legislator; and if the first enactment had been followed up logically by a Divorce Petition based on the Common Law of England, or upon that element of it which was administered by the Ecclesiastical Courts;

or if it had been followed by an enactment of a Colonial Law upon which the jurisdiction could operate-either a new Law or the old Law of England-all would have been well and Ontario to-day would, like the other Provinces, have a Divorce Law of its own and an Alimony Law too if it wished, developed up to 1867 according to the needs of its people.

But Upper Canada made the great blunder of inresting a Court with a jurisdiction without providing for it a Law to dispense or administer.

The West, which largely was an overflow of Eastern people, naturally enough, made a replica of Ontario's enactment. It would have been almost impious to