Erin Gallagher-Cohoon
In June 1968, a younger lady petitioned the Nova Scotia Courtroom for Divorce and Matrimonial Causes for a dissolution of marriage on the grounds of authorized cruelty. She had lived together with her husband in each Halifax and Western Shore in Lunenburg County for 5 years earlier than briefly separating in 1965 after which once more, this time for good, in 1967. They’d one son, and the spouse described the primary years of their marriage as “regular.” Over time, nevertheless, their relationship suffered and he “refused sexual activity and stated that he didn’t love her and, lastly, he advised her that he cherished one other man. He stated ‘I’m queer.’” Revealing of the local weather on the time, the time period “regular” was used repetitively within the choose’s abstract of the spouse’s petition and was all the time inherently heterosexual. In distinction, in related household regulation instances, queer intercourse was typically described as “unnatural,” “unusual,” or “abnormal.” This submit queers Nova Scotian household regulation by delving into Countway v. Countway: the earliest reported Canadian divorce case during which a partner’s queer sexuality was interpreted as authorized cruelty.
In line with the spouse’s account in Countway v. Countway, the couple continued to reside collectively after her husband’s declaration, however their relationship turned more and more strained. In line with the spouse, he had launched his lover to their son and would invite his lover and associates over within the evenings whereas she was at work. Private house parties of this kind have been standard queer social areas in many Canadian cities previous to the event of a homosexual bar scene. Mrs. Countway satisfied her husband to see a psychiatrist, which he did as soon as earlier than refusing to proceed the periods. Crucially, Mr. Countway’s refusal to return could be understood inside an extended historical past of psychiatric pathologization. In 1968, homosexuality was nonetheless listed as a psychological dysfunction within the American Psychiatric Affiliation’s Diagnostic and Statistical Guide of Psychological Issues (DSM). It was not till 1973 that queer activists have been profitable of their struggle to have “homosexuality” removed from the DSM (gender variety, in distinction, continued to be pathologized below a brand new time period).
Following this tried psychiatric intervention, Mrs. Countway turned so emotionally upset by the breakdown of her marriage that she reported dropping pounds and experiencing problem sleeping. She consulted a doctor who warned her that her husband’s new relationship “was unhealthy for her youngster, notably as he was a younger boy.” Regardless of makes an attempt to salvage the wedding, in the long run Mr. Countway moved in together with his lover, and Mrs. Countway petitioned for a divorce on the grounds of cruelty. Authorized cruelty in Nova Scotian divorce proceedings required proof of remarkable bodily or psychological abuse that harmed a partner’s (normally a spouse’s) well being or threatened their life.
Countway v. Countway was the primary Canadian case that I’ve been capable of finding during which a partner’s same-sex affair was the premise for a declare of authorized cruelty in divorce proceedings. Chief Justice Cowan asserted, primarily based on priority in British household regulation, “that unnatural or pervert practices by a partner” weren’t on their very own enough grounds for divorce however might be used to help an allegation of cruelty. Within the British instances consulted, the husbands petitioned for divorce after their wives fashioned or have been alleged to have fashioned “unnatural relations with different ladies.” The husbands objected to the relationships however to no avail. Within the eyes of the regulation, it was the persistence of the relationships and the proof, supplied by physicians, of the partner’s ensuing anxiousness and ailing well being that elevated these queer relations to cruelty and thus grounds for divorce. This development continued in Countway v. Countway the place the spouse was granted a divorce and custody of their son. Later Canadian divorce instances would, in flip, discover priority in Countway v. Countway.
The choose’s verdict offers restricted perception into the difficult social dynamics of a failing marriage at a time when homosexuality was still criminalized and when Canadian divorce law was in a transitional period. In July 1968, one month after Mrs. Countway had initiated divorce proceedings, Canada’s first federal Divorce Act got here into drive. Previous to this, provinces retained their separate divorce laws (if it existed in any respect) after they entered Confederation. In observe, this authorized scenario meant that entry to judicial divorce various throughout the nation. Earlier than 1968, Nova Scotia was the one province to think about cruelty sufficient grounds for divorce. Impotence, adultery, and being an in depth blood relation have been additionally grounds for divorce in Nova Scotia.
With the brand new federal regulation, divorce was standardized throughout the nation. Between 1968 and 1985 when the Divorce Act was amended, grounds for divorce throughout Canada included bodily or psychological cruelty, bigamy, adultery, and being “responsible of sodomy, bestiality or rape, or [engaging] in a gay act.” Having initiated the divorce previous to this alteration in Canadian household regulation, nevertheless, Mrs. Countway wouldn’t have had entry to both of the provisions relating to sodomy or gay acts. Nonetheless, pursuing a divorce on the grounds of cruelty was a dangerous proposition. Psychological cruelty specifically was troublesome to show. Historically, Nova Scotian judges had been reticent to award divorces even in instances of sustained bodily abuse.
In his analysis of early twentieth-century Nova Scotian divorce cases, historian James Snell argued that “the court docket was clearly much less snug with allegations of cruelty than with adultery.” Why then did Mrs. Countway not argue for a divorce on the premise of adultery? There was proof, together with testimony by the husband’s lover, that the connection between the boys had certainly been a sexual one. Adultery had an equally lengthy historical past as grounds for divorce in Nova Scotia and judges have been the truth is extra keen to award a divorce in adultery instances. It was additionally, nevertheless, thought of a uniquely heterosexual offence. It was not till 2005 {that a} B.C. Supreme Court choose expanded the definition of adultery to incorporate a husband’s affair with one other man. This new precedent was invoked a yr later in New Brunswick when a husband was granted a divorce on the grounds of his spouse’s same-sex adultery.
All through the 20 th century, the authorized distinction between cruelty and adultery in instances involving a partner’s extramarital affair trusted whether or not the affair was with somebody of the identical intercourse or not. In instances involving queer intercourse, cruelty reasonably than adultery was most well-liked as grounds for divorce. Identical-sex relationships weren’t thought of legally adulterous. Sodomy and fascinating in a gay act have been solely briefly thought of grounds for divorce (between 1968 and 1985). Nonetheless, beginning with Countway v. Countway in 1968, psychological cruelty was utilized in instances involving queer spouses popping out of straight marriages. On April 20, 1989, for instance, an Albertan divorce petition was unsuccessfully argued on the grounds of each adultery and psychological cruelty. The choose didn’t focus on the allegation of adultery however spent appreciable time on the priority for psychological cruelty. Countway v. Countway was among the many instances cited. The choose decided, nevertheless, that these earlier instances had all included aggravating circumstances. In Countway v. Countway, for instance, the husband “refused to keep up a standard sexual relationship together with his spouse.” By itself homosexuality was “not equal to treating your partner with cruelty” and so the 1989 petition was dismissed.
Since a minimum of 1968, cruelty has been used—generally efficiently, generally not— as grounds for divorce in instances involving same-sex extramarital affairs. Household regulation judges have been cautious to make clear {that a} partner’s homosexuality alone was not enough to represent cruelty, however neither might queer intercourse represent adultery (legally talking). With this distinctive positioning of homosexuality within the regulation, household regulation instances similar to Countway v. Countway inform us extra about authorized perceptions of queer sexuality than they do about a person’s self-identity or in regards to the variety of relationships and communities they have been studying to navigate – from ex-wives and households of origin to new lovers and associates. For these tales, you must flip to oral histories or memoirs like Nova Scotian activist Gerard Veldhoven’s A Passion for Equality. But it’s by layering the non-public and authorized sources that we would reply such questions as: What position has household regulation – particularly marriage, divorce, and youngster custody – performed within the biographies of queer activists and group members? How has it influenced their activism? And the way have queer Atlantic Canadians, in flip, influenced Canadian household regulation?
Erin Gallagher-Cohoon will probably be beginning a postdoctoral fellowship at Brock College in September 2025. Her work focuses on queer histories of the household from the late Nineteen Sixties onwards.
Additional Studying
Da Costa, D. Mendes. “The Divorce Act, 1968 and Grounds for Divorce Based Upon Matrimonial Fault.” Osgoode Corridor Legislation Journal 7, no. 2 (1970): 111-154.
Gagné, Maud. “Divorce and Mental Cruelty.” Les Cahiers de droit 11, no. 3 (1970): 510-528.
Pearlston, Karen. “Avoiding the Vulva: Judicial Interpretations of Lesbian Sex Under the Divorce Act, 1968.” Canadian Journal of Legislation and Society 32, no. 1 (2017): 37-53.
Snell, James. “Marital Cruelty: Women and the Nova Scotia Divorce Court, 1900-1939.” Acadiensis 18, no. 1 (1988): 3-32.
Veldhoven, Gerard. A Passion for Equality: My Personal Journey. Self-published, 2020.