The Right to Parenthood
![handle is hein.journals/famlrw2 and id is 173 raw text is: FAMILY LAW REVIEW/ VOL 2 NO 3. 1979 / 173
Patricia A Wright
The Right To Parenthood
INTRODUCTION
In this consideration of the right to
parenthood it was necessary to take an oblique
approach and consider what were some of the
ramifications when a man and/or a woman did
not want children or wanted children when
their spouse or someone else concerned felt the
opposite, and when a person could not have
children. As is always the case in an area deal-
ing with law and the control of life, values and
morals are of the utmost concern.
REFUSAL TO HAVE
CHILDREN AS GROUNDS FOR DIVORCE
The Statute
Section 3(d) of the Divorce Act' says that 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, has treated the petitioner with
physical or mental cruelty of such a kind as to
render intolerable the continued cohabitation
of the spouses.
The Case Law
Some of the principles to be considered by
the court were set out in Lacey v Lacey' and
are:
(1) Each case must be determined on its own merits, sub-
ject to no general definition of curelty nor to the dictation
of what was done in another case. (2) The only condition
defined by the statute is that cruelty, either physical or
mental, must render intolerable the continued cohabita-
tion of the spouses. That is the fact that must be found to
justify the exercise of jurisdiction. (3) In almost every
case, by the time it reaches the court, the parties must, in
fact, be living separate and apart, for if they find life
together tolerable, how can a court at the instance of one
of them find it intolerable? (4) The acts complained of
must be . . . grave and weighty and they must, to fit the
statute, be insufferable, unendurable, more than flesh and
blood can stand, beyond bearing. (5) The acts complained
of must be more than those which merely illustrate the
breakdown of the marriage and the incompatibility of the
parties ... The cruelty ground must not be made a short
cut to early divorce for the adolescent, the incompatible,
the disappointed or the unhappy. (6) By the same token
the cruelty ground must not become a way of securing a
quick divorce where the evidence of adultery, sodomy,
bestiality, rape, homosexual acts or bigamy is imperfect.
Patricia A Wright LLB (Alberta), member of the Alberta Bar,
practices law in Edmonton as Wright & Jacques, 9333-50th
Street.
If those are the fields of cruelty alleged, they should in
most cases be proven as grounds under the other subsec-
tions of s 3. A like rule applies to the imprisonment, drink
or drug addiction and non-consummation under s 4. (7)
The cruelty must be exercised by the respondent actively
against the petitioner and not arise from the nature of
things, the human condition or the acts of third parties. I
do not think that the cruelty found in Gollins v Gollins
(19641 P 32, [1962] 3 All ER 897, affirmed [19641 AC
644, [19631 2 All ER 966, and a large number of the
English cases would be cruelty in the terms of s 3(d) of
the Canadian Act. (8) In general, the cruelty must be es-
tablished by proven and corroborated facts and not by
merely the subjective evidence and hurt feelings of the in-
jured spouse. (9) In most cases there should be the ele-
ment of fear, for it is this more often than the fact of the
cruel act which renders cohabitation intolerable.
The test for cruelty is a subjective one and
this is often explained as meaning that the
court must ask whether this conduct by this
man to this woman or vice versa is cruelty.'
This means that conduct that is cruel in one
case may not be cruelty in another. It is the ef-
fect of the conduct on the respondent that is
important and not the acts per se. Many cir-
cumstances of the case are considered in-
cluding
the physical and mental condition of the parties, their
position in life; the society in which they live, socially,
morally, materially; their character and their attitude
towards the marriage relationship; their age and the ac-
tion and interaction of the petitioner and respondent; their
backgrounds and degree of refinement and sensitivity;
and the pressure of their responsibilities and commit-
ments.
In other words, everything relevant can and
will be looked at.
Within the preceding guidelines it has been
found that refusal to have children is a ground
for divorce, because it is cruelty.' One autho-
rity emphasizes that the age, health, num-
ber of children and financial position of the
parties will be most relevant in deciding this
issue. This is consistent with the finding in
Bravery v Bravery' which found that cruelty
can exist where a husband has a vasectomy
without the consent of the wife, especially
where she is young and without children. A
wider generalization on the English law is that
any form of birth control is capable of being cruelty if
practised to an extent which proves injurious to the other
spouse, and if unjustified.6
The truth of the last proposition may be
seen in Fowler v Fowler,' where the insistence
on contraception was held to be justified. This
I](ViewImageLocal?handle=hein.journals/famlrw2&div=22&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
The Right to Parenthood
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most