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In the Shadow of the Law

In the Shadow of the Law: Divorce in Canada 1900-1939

James G. Snell
Copyright Date: 1991
Pages: 322
  • Book Info
    In the Shadow of the Law
    Book Description:

    These 'pioneer' divorces led the way in creating a modern Canadian divorce system, based on consensual dissolution of marriage and relying on the courts less for arbitration between contending parties than for endorsement of a privately determined pact.

    eISBN: 978-1-4426-7606-0
    Subjects: History, Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Tables
    (pp. vii-viii)
  4. Acknowledgments
    (pp. ix-x)
  5. Glossary
    (pp. xi-2)
  6. 1 Introduction
    (pp. 3-18)

    On 29 November 1920 John Taylor, a labourer in Pugwash, Nova Scotia, petitioned the provincial divorce court for a dissolution of his marriage of twenty-three years. Wed in Moncton, New Brunswick, John and Edith Taylor had lived together in Pugwash and Amherst for nineteen years, and had had four children, three of whom were still living. In October 1916 John and Edith had signed a separation agreement, soon after which Edith allegedly had begun an adulterous relationship with an Amherst factory worker. It was this that gave John grounds for his divorce action. But at the subsequent trial in March...

  7. Part 1: The Divorce Environment

    • 2 The Family and Canadian Public Culture
      (pp. 21-47)

      The ideal of the conjugal family was triumphantly popular at the beginning of the twentieth century. Conceived of as a single, uniform institution, it incorporated virtually all the principles and ideals valued by Canadian society. The family was the source of nurture and early training for children, of comfort and nourishment for weary men at the end of a hard day’s work, and of women’s true fulfilment as wives and mothers. This image of the family superseded the class and ethnic divisions that were becoming increasingly apparent in Canada’s industrializing society. Central to the dominant ideal of the family was...

    • 3 Divorce Legislation: Resistance to Change
      (pp. 48-74)

      Writing in 1915, a distinguished legal counsel and future attorney-general of Ontario complained that although the dominion Parliament had jurisdiction over the entire subject of marriage and divorce, ‘the federal field remains almost wholly uncultivated.’¹ What was unquestionably accurate in 1915 was still largely true in 1940. Despite a virtually unchallenged authority in the field and a vast expansion in the role of the state, successive federal governments chose to avoid any major legislative activity in this area until 1968, when the first unified divorce statute was passed. But this history of legislative inactivity, intriguing in itself, does not accurately...

    • 4 The Judiciary: An Ideology Confirmed
      (pp. 75-102)

      Law reports were the chief means by which members of the legal profession communicated with one another. The reporting series, which were both regional and national in scope, passed on to the profession decisions that established some new precedent in Canadian law. The reports were edited by lawyers, whose personal views inevitably coloured both the selection of cases reported and the elements in the cases that were emphasized. These reports were the major formal channel for communication among the judiciary and between the judiciary and practising counsel. An examination of the law reports of the early twentieth century reveals the...

    • 5 The Role of the State
      (pp. 103-128)

      One other broad area of the law played a vital role in establishing the legal environment surrounding divorce. More than the formal legislative debates about divorce and more than the precedents set and maintained by the judiciary, a cluster of legal elements – the divorce process, the criminal law, the police, family agencies, and statutes regulating familial behaviour and duties, many of them strengthened by the expanding role of the state in the early twentieth century – affected the treatment of those who sought to deviate from stable marital behaviour. Both the divorce process itself and a variety of complementary laws inhibited...

  8. Part 2: Divorce Behaviour

    • 6 The Demography of Marriage and Divorce
      (pp. 131-156)

      If the divorce environment in Canada in the early twentieth century was restrictive, manipulative, and conservative, it remains to be seen just what impact that environment had on the behaviour of couples intent on dissolving their marriages. There is considerable evidence that individual Canadians were seeking to gain greater control over marriage, and a more extensive use of divorce was one means of accomplishing this. By the end of the 1930s, long before the formal divorce rate had reached its pre-1968 peak, the basic demographic characteristics of modern divorce – to the extent that they can be examined with the available...

    • 7 The Role of Gender
      (pp. 157-190)

      Through role prescriptions and through systematic or structural limitations, men’s and especially women’s agency in early twentieth-century Canadian society was circumscribed. Familial and economic roles and expectations fashioned the marital beliefs of both men and women. In the contest for power that resulted from these conflicting expectations, women were placed in a decidedly disadvantaged position. While the notion of sexual equality was gaining some theoretical and rhetorical currency in Canadian society, in practice both the legal rules and the community-based norms denied the equality of wives and husbands. Nevertheless, wives asserted their own demands and used the divorce process as...

    • 8 Making the Divorce Process Work
      (pp. 191-225)

      Women were not the only group to exert a growing influence on and through the divorce process. The authoritative and restrictive formal divorce regime was consistently tempered by a number of social forces. At times the local community and family values could be even more restrictive than those of the state, though there was a greater flexibility in the enforcement of locally based rules. Community and family perceptions of marriage and divorce were articulated through mechanisms much less formal but at least as powerful as those of the state. The customary rules of marriage and divorce coexisted with the formal...

    • 9 Divorce outside the System
      (pp. 226-257)

      Self-divorce had a lengthy history among peasants and workers in Great Britain and elsewhere. Self-marriage and self-divorce were features of English plebian culture at least as early as the seventeenth century wherever the rites of the gentry or the bourgeoisie did not meet local needs. John Gillis has suggested that the popularity of marriage by consent among rural labourers was a result of the widespread mobility of workers; men moving on to work in other parishes could ֹ‘desert’ their wives, and both parties were free to ‘marry’ a new partner. These practices had their own rituals; the consent of all...

    • 10 Conclusion
      (pp. 258-266)

      The Canadian divorce environment developed its own distinctive symmetry. Shaped and articulated in defence of a particular construction of the family, the law and the process of divorce were reshaped by users in a way that subverted many of the law’s immediate aims. Divorce law might thus be seen to be unsuccessful from the point of view of many of its defenders; despite the relatively low number of divorces in Canada in comparison with other Western societies, the divorce environment had after all failed to prevent a massive increase in the rate of formal divorce in the country. But even...

  9. Appendix: Social Class and Occupation
    (pp. 267-270)
  10. A Note on Sources
    (pp. 271-274)
  11. Notes
    (pp. 275-314)
  12. Index
    (pp. 315-322)