Queering Histories of Divorce and the Family in Nova Scotia

Erin Gallagher-Cohoon 

In June 1968, a young woman petitioned the Nova Scotia Court for Divorce and Matrimonial Causes for a dissolution of marriage on the grounds of legal cruelty. She had lived with her husband in both Halifax and Western Shore in Lunenburg County for five years before briefly separating in 1965 and then again, this time for good, in 1967. They had one son, and the wife described the first years of their marriage as “normal.” Over time, however, their relationship suffered and he “refused sexual intercourse and said that he did not love her and, finally, he told her that he loved another man. He said ‘I’m queer.’” Revealing of the climate at the time, the term “normal” was used repetitively in the judge’s summary of the wife’s petition and was always inherently heterosexual. In contrast, in similar family law cases, queer sex was often described as “unnatural,” “unusual,” or “abnormal.” This post queers Nova Scotian family law by delving into Countway v. Countway: the earliest reported Canadian divorce case in which a spouse’s queer sexuality was interpreted as legal cruelty.

According to the wife’s account in Countway v. Countway, the couple continued to live together after her husband’s declaration, but their relationship became increasingly strained. According to the wife, he had introduced his lover to their son and would invite his lover and friends over in the evenings while she was at work. Private house parties of this sort were popular queer social spaces in many Canadian cities prior to the development of a gay bar scene. Mrs. Countway convinced her husband to see a psychiatrist, which he did once before refusing to continue the sessions. Crucially, Mr. Countway’s refusal to return can be understood within a longer history of psychiatric pathologization.  In 1968, homosexuality was still listed as a mental disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). It was not until 1973 that queer activists were successful in their fight to have “homosexuality” removed from the DSM (gender diversity, in contrast, continued to be pathologized under a new term). 

Following this attempted psychiatric intervention, Mrs. Countway became so emotionally upset by the breakdown of her marriage that she reported losing weight and experiencing difficulty sleeping. She consulted a physician who warned her that her husband’s new relationship “was bad for her child, particularly as he was a young boy.” Despite attempts to salvage the marriage, in the end Mr. Countway moved in with his lover, and Mrs. Countway petitioned for a divorce on the grounds of cruelty. Legal cruelty in Nova Scotian divorce proceedings required proof of exceptional physical or mental abuse that harmed a spouse’s (usually a wife’s) health or threatened their life. 

Countway v. Countway was the first Canadian case that I’ve been able to find in which a spouse’s same-sex affair was the basis for a claim of legal cruelty in divorce proceedings. Chief Justice Cowan asserted, based on precedence in British family law, “that unnatural or pervert practices by a spouse” were not on their own sufficient grounds for divorce but could be used to support an allegation of cruelty. In the British cases consulted, the husbands petitioned for divorce after their wives formed or were alleged to have formed “unnatural relations with other women.” The husbands objected to the relationships but to no avail. In the eyes of the law, it was the persistence of the relationships and the evidence, provided by physicians, of the spouse’s resulting anxiety and ill health that elevated these queer relations to cruelty and thus grounds for divorce. This trend continued in Countway v. Countway where the wife was granted a divorce and custody of their son. Later Canadian divorce cases would, in turn, find precedence in Countway v. Countway. 

The judge’s verdict provides limited insight into the complicated 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 came into force. Prior to this, provinces retained their separate divorce legislation (if it existed at all) when they entered Confederation. In practice, this legal situation meant that access to judicial divorce varied across the country. Before 1968, Nova Scotia was the only province to consider cruelty sufficient grounds for divorce. Impotence, adultery, and being a close blood relation were also grounds for divorce in Nova Scotia. 

With the new federal law, divorce was standardized across the country. Between 1968 and 1985 when the Divorce Act was amended, grounds for divorce across Canada included physical or mental cruelty, bigamy, adultery, and being “guilty of sodomy, bestiality or rape, or [engaging] in a homosexual act.” Having initiated the divorce prior to this change in Canadian family law, however, Mrs. Countway would not have had access to either of the provisions regarding sodomy or homosexual acts. Still, pursuing a divorce on the grounds of cruelty was a risky proposition. Mental cruelty in particular was difficult to prove. Historically, Nova Scotian judges had been reticent to award divorces even in cases of sustained physical abuse. 

In his analysis of early twentieth-century Nova Scotian divorce cases, historian James Snell argued that “the court was clearly less comfortable with allegations of cruelty than with adultery.” Why then did Mrs. Countway not argue for a divorce on the basis of adultery? There was evidence, including testimony by the husband’s lover, that the relationship between the men had indeed been a sexual one. Adultery had an equally long history as grounds for divorce in Nova Scotia and judges were in fact more willing to award a divorce in adultery cases. It was also, however, considered a uniquely heterosexual offence. It was not until 2005 that a B.C. Supreme Court judge expanded the definition of adultery to include a husband’s affair with another man. This new precedent was invoked a year later in New Brunswick when a husband was granted a divorce on the grounds of his wife’s same-sex adultery.

Throughout the twentieth century, the legal distinction between cruelty and adultery in cases involving a spouse’s extramarital affair depended on whether the affair was with someone of the same sex or not. In cases involving queer sex, cruelty rather than adultery was preferred as grounds for divorce. Same-sex relationships were not considered legally adulterous. Sodomy and engaging in a homosexual act were only briefly considered grounds for divorce (between 1968 and 1985). However, starting with Countway v. Countway in 1968, mental cruelty was used in cases involving queer spouses coming out of straight marriages. On April 20, 1989, for example, an Albertan divorce petition was unsuccessfully argued on the grounds of both adultery and mental cruelty. The judge did not discuss the allegation of adultery but spent considerable time on the precedence for mental cruelty. Countway v. Countway was among the cases cited. The judge determined, however, that these previous cases had all included aggravating circumstances. In Countway v. Countway, for example, the husband “refused to maintain a normal sexual relationship with his wife.” By itself homosexuality was “not equivalent to treating your spouse with cruelty” and so the 1989 petition was dismissed. 

Since at least 1968, cruelty has been used—sometimes successfully, sometimes not— as grounds for divorce in cases involving same-sex extramarital affairs. Family law judges were careful to clarify that a spouse’s homosexuality alone was not sufficient to constitute cruelty, but neither could queer sex constitute adultery (legally speaking). With this unique positioning of homosexuality in the law, family law cases such as Countway v. Countway tell us more about legal perceptions of queer sexuality than they do about an individual’s self-identity or about the diversity of relationships and communities they were learning to navigate – from ex-wives and families of origin to new lovers and friends. For those stories, you have to turn to oral histories or memoirs like Nova Scotian activist Gerard Veldhoven’s A Passion for Equality. Yet it is by layering the personal and legal sources that we might answer such questions as: What role has family law – especially marriage, divorce, and child custody – played in the biographies of queer activists and community members? How has it influenced their activism? And how have queer Atlantic Canadians, in turn, influenced Canadian family law?

Erin Gallagher-Cohoon will be starting a postdoctoral fellowship at Brock University in September 2025. Her work focuses on queer histories of the family from the late 1960s onwards. 

Further Reading

Da Costa, D. Mendes. “The Divorce Act, 1968 and Grounds for Divorce Based Upon Matrimonial Fault.” Osgoode Hall Law 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 Law 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.