Justice Minister Pierre Trudeau: This proposed measure is not the sole product of one government, but rather the product of a social pressure which has been building up over the years to the point that this government had to seek a solution. We are now living in a social climate in which people are beginning to realize, perhaps for the first time in the history of this country, that we are not entitled to impose the concepts which belong to a sacred society upon a civil or profane society.

The concepts of the civil society in which we live are pluralistic, and I think this parliament realizes that it would be a mistake for us to try to legislate into this society concepts which belong to a theological or sacred order. These are very important and sacred concepts no doubt, but they should not by themselves be considered as the sole guide for a government of a civil society. Because of this it was necessary to find a remedy for these evils, and that is what this is.

Although the idea of divorce is still repugnant to many people in this country-and I respect the reasons for which many people oppose the idea, as a matter of conscience, or religious or moral beliefs-when these reasons are applied to the legislative program of a country, it means imposing on a great majority the beliefs of perhaps a small minority.

 I think one of the fundamental tasks we must achieve in this parliament is to avoid mixing sacred and the profane. We must realize we are living in a pluralistic society, and even though some laws may be repugnant to the morals of individual members they must realize that we are all here to legislate not our own personal morals upon the country but to seek solutions to evils which arise in a civil society and which must be solved by civil or criminal laws.

I think this is what has guided us in our decision to reform these laws. This is a good opportunity for me to say that because of this I did not find it necessary to recommend that the vote on divorce laws be a free vote, in the sense that the expression is used in this House. I respect those hon. members who for moral reasons do not agree with the concept of divorce. I think those who believe that marriage is indissoluble, and it is a very worthy belief, are in the position of asking themselves nonetheless whether this law is necessary now to find a solution to a real social evil.

I think I have shown, and hon. members know from experience, that these evils arising from our unsatisfactory divorce laws are very present in this society. I should say, for the benefit of those people who have moral doubts, that this is merely a permissive law. It is a law that will permit the breaking of the marriage link but which obliges no one to remarry, if this is against his principles.

This legislation is just dealing with the civil link; it is not dealing with moral beliefs. Indeed I think it is theologically acceptable, even to the most stringent of Christians, that if an annulment of marriage is obtained under church laws, canon laws, and if the only way to dissolve the remaining civil link is through divorce, then divorce in such a case is perfectly admissible. I think this is borne out by the very large support we have had from many of the Christian churches in Canada for the reform of the divorce laws...

I should say at this point that we are not attempting in this law to deal with the causes of divorce. One hon. member last night, when speaking at the resolution stage, pointed out that it would be important to deal with problems of poverty, slum clearance, alcoholism and other such evils. This is quite true in a sense. The breakdown of marriage is not something that happens in a vacuum; it is something that is very often brought on by social conditions or evils with which this legislation does not attempt to deal. We are dealing only with the consequences of these social evils. I hope hon. members realize that in a divorce law we cannot do much more than this.

The government through its social legislation, and indeed the provincial governments through their various forms of legislation, have attempted to weed out all these evils in society, some of which lead to marriage breakdown. But I think it would be unnecessary in this law to try to deal with all these causes of divorce. We have to legislate on this particular subject, and I hope hon. members will not think it is because the government is not aware of these that it has not attempted to legislate on them...

Therefore, Mr. Speaker, since a legislation on divorce was to be drafted, I must say that the bill now before the house reflects our concern to respect the beliefs, the traditions and the customs of the various groups which make up our composite society. This would seem obvious to anyone who would look at the provisions concerning the jurisdictions of courts, the rules governing procedure and proof.

We did not want to disturb the administration of justice in the provinces by proposing new rules likely to confuse trial lawyers used to provincial regulations. That is why, in principle, provincial superior courts of civil jurisdiction will now have jurisdiction in divorce matters. There will be an exception, of course, in the case of Quebec and Newfoundland, but in our view, and I feel I made that point quite clear last evening and, at the same time, it is a wish that I express this exception for those two provinces is of a purely temporary nature.

Moreover, as long as provincial laws of procedure do not come into conflict with the provisions of the present legislation, or with the rules of practice that competent courts may adopt, they will apply to divorce proceedings.

Finally, I wish to add that the laws of evidence in the province where divorce proceedings are started will apply to those proceedings. At this point, Mr. Speaker, I should like to emphasize that in drafting this divorce legislation, we have taken into account the need to reconcile in the same act the procedures and concepts that belong to different statutes and mentalities. For instance, when we decided that if divorce proceedings were to be taken let us say, in the province of Quebec, before the Court of the Exchequer, they would follow the provincial evidence act. We decided to include a section in the act authorizing the lawyers and parties taking proceedings in the province of Quebec to be governed by the provincial evidence acts...

There is more. All provinces are not agreed on the measures to be taken to minimize the difficult consequences of a broken marriage, that is to say that in various provinces there are laws that vary from one province to another as far as alimony or the custody of children, for instance. That is why we have provided that during the divorce proceedings and in handing down the decree, the court dealing with the question of divorce -- the very same court which is consequently in a position to know the circumstances and consider the parties --this court may order provisional or complementary measures appropriate to the parties and the children, taking into account all circumstances including the principles and customs recognized by the society in which they live...

In short, the reason is that when we are dealing with divorce we are dealing with certain fundamental rights possessed by citizens of this country. We are dealing with something much more fundamental than property rights or money matters. When we are dealing with the latter, we do have courts at different levels which deal with various questions affecting property rights according to their importance. I feel however that when we are dealing with marriage and divorce we should go to the superior courts, which in our society are traditionally called upon to decide upon the basic rights of human beings whether in civil or in criminal matters...

To return to the subject I was speaking about earlier, I only wish to add a word or two. I ask the hon. members to realize that this measure does not abrogate the provincial laws; in other words, the laws concerning affiliation, for example, which exist in the various provincial jurisdictions, are not abrogated by our legislation on divorce. They continue to exist. We are merely trying to deal here with the question of divorce and the consequences immediately attending this breakdown of marriage.

That is why, Mr. Speaker, we have provided for this three-month period during which we want to consult with the provinces to make sure, in all good faith, that the present legislation can be applied without too much difficulty in all the provinces. That is why also, as I said earlier, we have sent to the attorneys general of all the provinces a copy of the present legislation, which we will be happy to discuss with them. So much the more so that as I said last night, the matter of judicial separation is not dealt with in this bill.

That creates, Mr. Speaker, a strange situation. In my opinion, according to the constitution -- and this opinion is shared by many more eminent constitutionalists than myself --judicial separation comes under federal jurisdiction, so that  --legislation now governing the provinces in that field could not; be amended by the provinces because they have no jurisdiction in that field.

So when we are called upon to pass a bill on divorce, which will not deal with judicial separation, that law will give grounds for divorce which will be broader than the grounds for judicial separation existing in several provinces. It will follow that it will be practically an encouragement to people to start divorce proceedings instead of separation proceedings, and I realize that anomaly perfectly. That is the phenomenon which made us include in a first draft of the bill provisions dealing with judicial separation which would have run parallel to the provisions dealing with divorce, and once again because I believe in co-operative federalism and because I believe that in such a field it is important that the central government should have consultations with the provinces, especially with those which already have in their statutes provisions dealing with judicial separation.

In the case of Quebec, this is even more important, because this province is now in the process of reshaping or reviewing its Civil Code and I know that very capable people are precisely working on the chapters concerning marriage, filiation and other related subjects. I think this will eventually lead to consultations between the provinces and the federal government, because of this anomaly: the Civil Code of the province of Quebec, since it was adopted before confederation in 1866, contains clauses and even whole chapters which do not come under provincial jurisdiction and which the province of Quebec itself cannot amend.

For this reason, the federal government, who is aware that the Civil Code is an important monument for French-speaking society, is not only willing, but anxious, to co-operate with the province of Quebec, inasmuch as it is necessary, so that this monument may be amended essentially by the provincial government, but partly also, as I explained a moment ago, by the federal government, so that the essential, special structure of such a monument as the Civil Code is not broken...

Just before closing, I thought I would touch briefly on one other aspect, that of marriage breakdown. I said a moment ago that we had been very thankful for the co- operation we have received from many of the church groups who have guided us in our ideas about reconciliation in the divorce laws. They have, in their briefs, recommended some provisions with respect to marriage breakdown which we have decided not to follow quite in the way they suggested…

There is not much more I think I should attempt to say at this stage. I thank hon. members for the way in which they received the law at the resolution stage, and for their courtesy in listening to me at this present stage. I can only add that as we get along with second reading, and eventually to the committee stage of the bill, I will be guided by every loyal effort of every member of this house to improve this law in such a way as to remedy a situation that has long needed remedying in this country.