History of Divorce Laws

Anglo-Canadian divorce law was derived from canon law. Canon law courts did not dissolve marriages, but they could grant a judicial separation upon proof of an “intolerable matrimonial wrong.” ^{Footnote 11} In England, the church’s jurisdiction over divorce was eliminated by the enactment of the Matrimonial Causes Act, 1857, which created a civil Court of Divorce and Matrimonial Causes. ^{Footnote 12} The 1857 legislation codified the grounds for divorce along gendered lines. A husband could divorce his wife on proof of her adultery. A wife could divorce her husband for adultery only where his conduct was aggravated by incest, bigamy, or cruelty. In addition, a wife, but not a husband, could petition for divorce on the grounds of rape, sodomy, or bestiality. ^{Footnote 13}

In contrast with adultery, which was considered normal albeit sinful heterosexual conduct, rape, sodomy, and bestiality were abnormal and were often grouped together as the “unnatural acts.” Sodomy at canon law included, but was not necessarily limited to, sex between men. According to William Eskridge, “for centuries no English-language statute defined precisely what conduct constituted the crime against nature” but “[c]ase law specified sodomy to include anal intercourse by a man with a woman or girl, another man or boy, or a beast; women could only commit sodomy by lying with a beast….” ^{Footnote 14} Thus, the sexual conduct denoted by the “unnatural acts” was classified as distinct from the penetration of a vagina by a penis that was required to prove adultery. ^{Footnote 15} Further, it was conduct that was seldom engaged in by women: woman who were anally penetrated by men were rarely viewed as a guilty party.

For the first 100 years after confederation, Canada’s federal government exercised its jurisdiction over marriage and divorce only in limited ways. Consequently, the grounds for divorce, although all fault-based, varied from province to province. ^{Footnote 16} The 1968 Divorce Act provided Canada with its first uniform divorce law. It also revolutionized family law by making no-fault divorce possible for the first time. ^{Footnote 17} The importance of this paradigm shift has tended to overshadow the retention of the traditional fault grounds (albeit in gender neutral form), and especially the addition of the homosexual act ground in s 3(b):

1. 3. … a petition for divorce may be presented to a court by a husband or wife, on the ground that the respondent, since the celebration of the marriage,

   1. (a) has committed adultery;

   2. (b) has been guilty of sodomy, bestiality or rape, or has engaged in a homosexual act;

   3. (c) has gone through a form of marriage with another person; or

   4. (d) has treated the petitioner with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. ^{Footnote 18}

As Cynthia Peterson observed in 1994, the legislation had a “heterosexis[t]… structure” because it grouped the homosexual act ground “together with ‘sodomy, bestiality and rape’ … rather than treating a ‘homosexual act’ as a form of adultery.” ^{Footnote 19}

This structure was intentional. Although it could technically include bestiality, fellatio, and cunnilingus, ^{Footnote 20} Anglo-Canadian law in the 1960s strongly associated “sodomy” with anal sex between men. ^{Footnote 21} In the liberal atmosphere of the late 1960s, where public discussion of sex was becoming acceptable, and in anticipation of the partial decriminalization of homosexual sex, some parliamentarians noticed that the divorce reform bill did not include lesbian sexual activity as a ground for divorce. As Robert McCleave, a Tory MP from Halifax stated during the Parliamentary Committee study of the bill:

New Democratic Party MP Arnold Peters recognized that decriminalization made it possible to address the problem identified by McCleave, commenting that, “We will have to look at the problem of homosexuality from the point of view of at least allowing acts between two consenting adults conducted in private….” ^{Footnote 23}

The bill was soon amended to include homosexuality. McCleave praised the amendment, stating that, “The minister has adopted as grounds for divorce adultery, sodomy, bestiality, rape, and has added homosexuality—all instances of human fault.” He later added: “The minister has added the ground of homosexuality. I believe that covers cases where a man is married to a practising lesbian. The committee was not able to deal with this matter and the minister, by one magic word, has solved the problem.” ^{Footnote 24} These excerpts from the debates show that Parliament intended to include lesbian sex as a ground for divorce, yet that message did not always come through clearly. For example, New Democratic Party MP John Gilbert, a lawyer from Toronto, worried that the homosexual act language would not be understood as including lesbianism, “One would think that lesbian acts should also be included. I think that is a shortcoming with respect to this particular provision in the bill.” ^{Footnote 25}

Academic lawyers also were confused about which homosexual acts could constitute grounds for divorce. Bernard Green noted that “[w]hat adultery is in law has been made plain in the decided cases,” and went on to ask, “[i]f the respondent is seen kissing and embracing a young man with passion has he engaged in the proscribed conduct? If he is participating in fellatio, either actively or passively?” ^{Footnote 26} Similarly, D. Mendes da Costa thought that:

In contrast, Julien Payne was confident that the legislation covered lesbianism because the ground permitted either a husband or a wife to petition for divorce. In his view, the phrase “‘engaged in a homosexual act’ [was] exceedingly vague” but since “it apparently refers to conduct other than sodomy, which constitutes an independent ground for divorce,” he thought that the courts would probably “interpret the clause restrictively and confine it to acts between members of the same sex which involve the surrender of the sexual organs.” ^{Footnote 28}

Payne’s was the better view. First, by noting that the act was not sodomy, which was already singled out as a ground, he implicitly recognized the practice of oral and manual sex and that these were not necessarily penetrative. Second, by confining the act to conduct involving “the surrender of the sexual organs,” he was able to differentiate between the guilty act itself and less serious conduct, such as Green’s example of “kissing and embracing … with passion.” This approach was more doctrinally coherent. It approached homosexual conduct similarly to adultery, which required proof of genital penetration. Such coherence was not, however, achieved in the reported cases.

The legal definition of the matrimonial offenses of adultery, bestiality, rape, and sodomy developed over hundreds of years. In contrast, the homosexual as a category or type of person did not emerge until the nineteenth century. ^{Footnote 29} It was only in 1885 that the English parliament criminalized acts of “gross indecency” between men. ^{Footnote 30} Canada followed suit in 1890. ^{Footnote 31} Gross indecency was “never … defined in statute.” ^{Footnote 32} It “covered all sexual acts between males not already covered by buggery,” ^{Footnote 33} and, by its lack of specificity, provided little guidance for the interpretation of homosexual acts between men in the matrimonial context, and none at all for women. Lesbians were almost never subject to criminal legal regulation, even after the offense of gross indecency was rendered gender neutral in 1954. ^{Footnote 34} Further, according to the historian Elise Chenier, lesbians were rarely studied by sexologists. ^{Footnote 35} By including lesbian conduct, the homosexual act ground in the Divorce Act, 1968, opened lesbian sex to the kind of medicolegal scrutiny to which gay men’s sexual practices were subject. Judges were expected to define the homosexual act between women with little assistance from precedent, medicine, or sexology.

“Where There’s no Penis Between Us Friends”: ^{Footnote 36} Judicial Decision-Making about Lesbian ‘Homosexual Acts’

The analysis below focuses on four of eight cases citing the homosexual act ground for divorce that were published in law reports between 1968 and 1986. The cases discussed are those where the homosexual act between women was defined and its consequences considered. ^{Footnote 37} Reported cases are selected for publication either because they make new law or because they are particularly sensational for some reason. They are usually very few in number when compared with the many cases that go through the courts but are not selected for publication. In addition, reported cases are not necessarily representative of the unreported cases. ^{Footnote 38}

The story begins with a 1972 case from Prince Edward Island. ^{Footnote 39} The Morrisons were married in 1965. They were childless and lived in Charlottetown. Mrs. Morrison probably met Mrs. G in 1969, when they both played on a “ladies’ softball team” that traveled to Halifax in association with the Canada Games. ^{Footnote 40} It was then that their relationship began, or at least became visible to Mr. Morrison. He testified at the divorce trial that Mrs. G (who lived thirty-five kilometres away) stayed at the Morrison home the night before the two women left for Halifax. On that occasion: “They were having a few drinks and Mrs. G made out she was drunk and she laid in our bed. When it was time to go to bed I couldn’t get her up so I had to sleep on the couch and my wife and Mrs. G slept in the bed.” ^{Footnote 41} After that, the two women were together as often as possible. They left Prince Edward Island and moved together to Ontario in the summer of 1971.

Mr. Morrison served his wife with a divorce petition in November of that year. The relationship between the two women seems to have broken off at that point. Mr. G did not wish to separate from his wife and, as the judge at the divorce trial put it, “Apparently Mrs. G motivated, among other things, by the fact that she had three children, took psychiatric treatment and has remained with her husband and family.” ^{Footnote 42} Mrs. Morrison appears to have been unrepentant. She did not contest the divorce or deny the allegations.

Mr. and Mrs. G and Mr. Morrison testified at the trial. Nicholson J listened to evidence that the two women were intimately involved with each other for almost two years. They spent long periods of time at each others’ homes. Both husbands said that they had seen their wives doing what all described as “kissing and petting each other’s body” on numerous occasions. On some of those occasions, according to Mr. Morrison, “they did not have any clothes on, bare naked.” ^{Footnote 43} The Morrisons sought help from a physician but, according to Mr. Morrison, the doctor advised them that Mr. Morrison should, “Take her and Mrs. G by the back of the neck and throw them to hell out the door if I could stand to touch her.” ^{Footnote 44} On the same occasion, Mrs. Morrison “explained” to the doctor that “she was in love with Mrs. G. and Mrs. G. in love with her and both of them tried to break up, meaning the relationship, but they couldn’t…” ^{Footnote 45} Mr. Morrison initially forgave his wife, but it eventually got to be too much for him, especially after she left the province with Mrs. G, which precipitated the divorce petition.

Mr. Morrison also provided a letter sent by Mrs. G to his wife. The following portion was excerpted in the judgment:

According to the judge, “It need hardly be said that this is a most unusual letter to pass between two married women and, in my opinion, bears out the petitioner’s evidence that these two women were engaged in a most unusual relationship.” ^{Footnote 47}

However, proof of the relationship, even one that was most unusual, could not provide grounds for the divorce: there had to have been a provable homosexual act. Here, the judge was helped by Mrs. G’s testimony. She admitted that what the petitioner’s lawyer referred to as “these homosexual acts” ^{Footnote 48} had happened many times. Then the following exchange occurred:

This line of questioning, with its emphasis on sexual arousal to orgasm, reveals Nicholson J’s anxiety to develop a legal definition of “homosexual act.”

In contrast to Mr. Morrison, Mr. G was happy to have reconciled with his wife. He testified that, “…she told me herself what happened and I knew from that time on it was going on. She on numerous occasions during 1969 tried to terminate the relationship between herself and Mrs. M. However it was too strong for them. They kept going back to seeing each other.” ^{Footnote 50} Mr. G’s view of his marriage, which he insisted on sharing with the court, is striking. He loved his wife and he was willing to accept her relationship with Mrs. M and her presence in the family home: “I had always loved my wife and I still do and mainly the fact we had three sons and I didn’t want … my wife to leave and for the sake of the children as much as the fact I wanted her to stay with me, I did allow [Mrs. Morrison] to come in and live with us in our home.” ^{Footnote 51} He was afraid that his wife would leave him and he blamed the pressure from “outsiders” for her eventual departure, “… there was too much interference in it, too many people … not giving in to the fact this happens …. They left P.E.I. because of too much interference.” ^{Footnote 52}

When questioned, Mr. G said that he had seen Mrs. G and Mrs. Morrison sleeping together on more than one occasion, that he had “seen them kissing and embracing each other” and that “there were discussions to the fact they slept together and they kissed and petted each other and things like this but nothing any deeper than that.” ^{Footnote 53}

After reviewing the testimony, Nicholson J quoted at length from the book Sex and the Law, by the lawyer and New York City magistrate Morris Ploscowe. ^{Footnote 54} Ploscowe wrote that “specific kinds of sexual behavior usually indulged in by homosexuals are prohibited. However, such behavior as fellatio, sodomy, and cunnilingus is not confined to homosexuals. It may also be indulged in by heterosexual individuals, both married and single,” ^{Footnote 55} and, although the law historically considered such practices to be “serious perversions” and “comparatively rare,” they are in fact engaged in quite widely, and often by people who are married to each other. He argued that “acts of sodomy and crimes against nature occur in widely different social situations, and these social situations must be understood before there can be any judgment with respect to the offense or the persons involved.” Finally, Ploscowe identified “the usual techniques of the female homosexual” as “[m]utual masturbation, clitoral and vaginal stimulation, and cunnilingus.” ^{Footnote 56}

The judge also reviewed the 1968 amendments to the Criminal Code, which rendered an act of “gross indecency” no longer criminal when it was committed in private between consenting adults. ^{Footnote 57} He observed that “the Parliament of Canada in 1968 (incidentally the same year that the Divorce Act was enacted) met some of the criticism of the law which has been made not only by Morris Ploscowe in the book referred to above but other writers on the same subject.” ^{Footnote 58}

The divorce was granted on the basis of the judge’s finding that Mrs. Morrison and Mrs. G “engaged in mutual fondling” of each other’s “naked body … to such an extent that each woman would reach a sexual climax or orgasm. This being so, I find that from my understanding of the conduct of homosexuals that the respondent has engaged in a homosexual act since the celebration of her marriage.” ^{Footnote 59} Nicholson J did not specify which of “the usual techniques of the female homosexual” amounted to the requisite act, but his emphasis on the fact that the fondling resulted in orgasm implies that he was taking a restrictive approach similar to Julien Payne’s focus on “surrender of the sexual organs.” Further, his use of passages from Ploscowe’s book to show that married heterosexuals might engage in the same sexual practices as same-sex partners, along with his focus on the recent reforms to the definition of gross indecency, seem to indicate that he was looking at the issue as a matter of family law, and not as a criminal offense. From the family law perspective, the problem with the homosexual act was its effect on the marital relationship. The old ideas about the crime against nature should have been abandoned, especially in view of the recent amendments to the criminal code. The judgment in Morrison might have pushed the jurisprudence in that direction, but it was not followed.

In the next case, Gaveronski (1974), ^{Footnote 60} MacPherson J of the Saskatchewan Queen’s Bench held that the homosexual act requirement was satisfied when Mrs. Gaveronski admitted that she and another woman had caressed each other’s breasts. He reasoned that “Such an act by a male person to a female is unquestionably sexual. It follows that between females it is a homosexual act where their relationship is, as here, strongly suggestive of a mutual homosexual attraction,” ^{Footnote 61} and added: “The four acts adultery, rape, sodomy or bestiality each require penetration by the male organ to some degree. Sodomy is frequently an act between male persons. Parliament could have left it there as was done in England and Australia, but it did not. It added ‘or has engaged in a homosexual act’.” ^{Footnote 62} With no explanation of what he thought significant about this legislative choice, MacPherson J referred briefly to Morrison, noting that he agreed that the requisite homosexual act “is something different from sodomy and bestiality,” but that the circumstances in Morrison were different because there was “evidence of homosexual gratification or orgasm between the women” in that case. ^{Footnote 63} He held that evidence of orgasm was not required because “proof of gratification is not essential to any other sexual offence, matrimonial or criminal. Nor do I see any reason to require that there must be proof of vaginal contact. The test must be: Was the act homosexual? In some cases, perhaps, a friendly caress of the bosom of one female by another may not be homosexual, but in the present case it was.” ^{Footnote 64} Although it is sensible to acknowledge that whether someone has an orgasm does not in itself define an act as sexual, MacPherson J leapt directly from that acknowledgment to the proposition that there is no “reason to require proof of vaginal contact.” This judicial slippage from the penis that was required for adultery, sodomy, bestiality or rape to the absence of a penis between women, and then to the jettisoning of any requirement for genital contact, is perhaps a typical erasure of lesbian sexuality. But it also had deeper legal implications.

The test posited in Gaveronski marked a significant yet subtle shift. Morrison took a step away from viewing homosexual acts as criminal, and toward looking at them through a family law lens. In this, Nicholson J was persuaded by Ploscowe’s arguments and also by the fact that Parliament had decriminalized homosexuality. ^{Footnote 65} In contrast, the judge in Gaveronski held that orgasm (and by extension, genital contact) was not required. His reasoning did not focus on the family law context. Instead, he treated the homosexual act as part of the category of “sexual offense, matrimonial or criminal.” This approach was contrary to Ploscowe’s urging that such conduct be understood within its social context, which here was matrimonial and not criminal. It also bypassed the legal distinction between the standard of proof in criminal and in civil law. Although adultery was referred to as a marital crime or offense, the Supreme Court in Smith v Smith (1952) clarified that it should be proved on the civil standard. ^{Footnote 66} The standard was the same for all matrimonial offenses. ^{Footnote 67} Thus, conceptualizing and reasoning from a category of “sexual offense, matrimonial or criminal,” broke with the established approach to assessing matrimonial offenses.

Gaveronski also represented a legal shift because it made a homosexual act easier to prove than adultery. Adultery was confined to instances where a penis entered a vagina. Other sexual conduct was viewed as circumstantial evidence on the basis of which it might be reasonable to infer that adultery had occurred. In contrast, Gaveronski stated that touching another woman’s breast was itself the homosexual act that justified granting a divorce. When Julien Payne thought that the meaning of homosexual act should be interpreted restrictively and involve the surrender of the genital organs, he was probably thinking about adultery as well as sodomy. The judge in Morrison followed that standard, but Gaveronski departed from it. Finally, and without providing reasons, MacPherson J ordered that Mr. Gaveronski would have custody of the couple’s two sons and Mrs. Gaveronski would have custody of their daughter, with maintenance ordered for the daughter but not for the wife.

Despite the differences in the reasoning, there was evidence of a close and passionate relationship between the women in both Morrison and Gaveronski and, in both of them, at least one of the women involved admitted to the homosexual act that provided grounds for the divorce. The next case to be reported was quite different. The wife in T v T (1975) ^{Footnote 68} left her husband of fifteen years to live with a woman she met when she took some community college courses. There was evidence that the women shared a bed for at least part of the time that they lived together but they both denied that they were sexually involved. Dewar CJQB found that Mrs. T left her marriage because of her attachment to the woman in her life, but refused to grant the divorce on the homosexual act ground. He defined the “homosexual act” as including “any act of physical conduct between two persons of the same sex having as an object gratification of the sexual impulses or drives of either or both participants, the sexual quality of the act being the determining ingredient.” In this case, however, there was “no evidence of specific acts or conduct that could be compared with a catalogue of female homosexual practices, if one exists.” ^{Footnote 69}

Citing the Supreme Court in Smith, Dewar CJ held that the standard of proof for “engagement in a homosexual act” was the same as the standard for adultery. ^{Footnote 70} He then quoted a passage from that judgment indicating that the civil standard requires a court to be “reasonably satisfied and that whether or not it will be so satisfied must depend upon the totality of the circumstances on which its judgment is formed including the gravity of the consequences of the finding.” ^{Footnote 71} Evidence for adultery is usually circumstantial because there is rarely a witness to the adulterous act. Where there is proof of opportunity for adulterous conduct and of inclination toward it, the burden shifts to the defendant to offer proof that no adultery occurred. The husband in T argued that there was evidence of opportunity and familiarity on the basis of which an inference of adultery could be made, and the judge should therefore infer that the parties had engaged in a homosexual act. The judge refused because the inference that, “as between male and female, natural or normal sexual conduct will probably occur … does not operate in proved circumstances of familiarity and opportunity involving two persons of the same sex where the sexual conduct to be inferred is unnatural or abnormal.” ^{Footnote 72} Although such an inference could be drawn, “the gravity of the consequences of a finding that the attachment between the respondents is homosexual or that they have engaged in homosexual acts … demands cautious scrutiny of the circumstances disclosed by the evidence.” ^{Footnote 73} He did not detail what those grave consequences might be.

In the heterosexual context of adultery, the potentially grave consequences appear to have been material in nature and to have flowed from the gendered nature of divorce law in the period. ^{Footnote 74} Mendes da Costa was in accord with this approach to adultery, ^{Footnote 75} but he took a different approach to the homosexual act ground. In his view, “the nature and gravity of the consequences which flow from a finding of adultery are of a quite different order from those which follow upon a finding that the respondent was ‘guilty of’ sodomy, bestiality or rape—or that the respondent had ‘engaged in’ a homosexual act. As the degree of social repugnance varies, so also should the degree of probability required to establish proof ….” ^{Footnote 76} He suggested that the courts might adopt this approach. However, his article is not cited in the judgment in T v T, so we have no way of knowing whether his assessment influenced the court in that case.

In contrast to Gaveronski, the approach in T v T would make a homosexual act harder to prove than adultery. We see this in Dewar CJ’s comment that Morrison and Gaveronski were “decisions founded upon evidence, an important part of which was direct. That circumstance sets them apart from this case.” ^{Footnote 77} However, the legal approach of inferring adultery from evidence of familiarity and opportunity within a context that is persuasive on the evidence was developed precisely because evidence for adultery was rarely direct and the guilty act must therefore be inferred from circumstantial evidence. ^{Footnote 78} The approach in T v T therefore departs from Gaveronski, where the judge, by defining a caress of the breast as the homosexual act, established a level of scrutiny that was not more but less cautious than that demanded by allegations of adultery. Despite denying the divorce in T v T, Dewar CJ awarded custody of the couple’s three sons to their father, including a fourteen-year-old who had been living with his mother. The judge thought the boys to be “at an age where male supervision” would be beneficial, and he declined to award joint custody to the mother, who had “abandoned her sons and … has been attempting to redeem herself.” ^{Footnote 79}

The last of this set of cases, Guy v Guy (1982), ^{Footnote 80} addressed the impact of a wife’s homosexual act on her request for spousal maintenance. Mrs. Guy denied that she and the other woman were sexually involved, but there was ample circumstantial evidence to the contrary and Clements LJSC granted the divorce. He then turned his mind to Mrs. Guy’s application for maintenance. While the 1968 Divorce Act did not bar the spouse whose marital fault provided grounds for the divorce from receiving maintenance, it permitted the court to take the parties’ conduct into account, along with their “condition, means and other circumstances.” ^{Footnote 81}

Clements J began by explaining that “Marriage is a heterosexual, legal relationship.… Homosexuality, however, is an antithesis of marriage and it is an obvious repudiation of the marital state. There is an abhorrence in our society to this unnatural conduct.” However, this attitude “must be viewed against the reality of social conventions and mores of today as well as the lifting of the criminal sanctions between consenting adults.” ^{Footnote 82} On this basis, he concluded that he should apply the same standard to homosexual acts as to adultery. He went on to explain that, where the marital fault was adultery, there was a spectrum of circumstances. For example, maintenance would be denied where the wife’s adultery “broke up the marriage, where it is continuing and where she is being supported by her paramour.” However, it would likely be granted where “a wife, after doing all she can to persuade her deserting husband to return to her and their children, in her loneliness lapses and commits two isolated acts of adultery.” ^{Footnote 83}

By analogy, there is also a spectrum where a homosexual act provides the ground for divorce:

He found that Mrs. Guy’s conduct was in the middle of the spectrum, which would not in itself exclude maintenance, but he denied maintenance because of several other factors, most prominently the husband’s inability to pay.