LONDON STATUS OF WOMEN ACTION GROUP
NATIONAL ASSOCIATION OF WOMEN AND THE LAW
ONTARIO ASSOCIATION OF INTERVAL AND TRANSITION HOUSES
HERITAGE OF CHILDREN OF CANADA
CONTENTS
Wednesday 13 February 1991
Child and Family Support Statute Law Amendment Act, 1990, Bill 17 / Loi de 1990 modifiant les lois relatives aux obligations alimentaires, projet de loi 17
Cynthia Lucas
Nancy Zinner
Gail Forbes
London Status of Women Action Group
Campbell Tillie
Afternoon sitting
National Association of Women and the Laws
Ontario Association of Interval and Transition Houses
Shirley Sundberg
Bert Flarity
Heritage of Children of Canada
Joan Gates
Law Union of Ontario
Subcommittee report
Adjournment
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: White, Drummond (Durham Centre NDP)
Vice-Chair: Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
Chiarelli, Robert (Ottawa West L)
Fletcher, Derek (Guelph NDP)
Harnick, Charles (Willowdale PC)
Mathyssen, Irene (Middlesex NDP)
Mills, Gordon (Durham East NDP)
Poirier, Jean (Prescott and Russell L)
Sorbara, Gregory S. (York Centre L)
Wilson, Fred (Frontenac-Addington NDP)
Winninger, David (London South NDP)
Substitutions:
Cunningham, Dianne E. (London North PC) for Mr Harnick
Elston, Murray J. (Bruce L) for Mr Chiarelli
Kwinter, Monte (Wilson Heights L) for Mr Poirier
Murdock, Sharon (Sudbury NDP) for Mr F. Wilson
Wessenger, Paul (Simcoe Centre NDP) for Mr Winninger
Clerk: Freedman, Lisa
Staff: Swift, Susan, Research Officer, Legislative Research Service
The committee met at 1004 in committee room 1.
CHILD AND FAMILY SUPPORT STATUTE LAW AMENDMENT ACT, 1990 / LOI DE 1990 MODIFIANT LES LOIS RELATIVES AUX OBLIGATIONS ALIMENTAIRES
Resuming consideration of Bill 17, An Act to amend the Law related to the Enforcement of Support and Custody Orders.
Reprise de l'étude du projet de loi 17, Loi portant modification des lois relatives à l'exécution d'ordonnances alimentaires et de garde d'enfants.
The Chair: Before we start today's proceedings, the clerk informs me that the subcommittee report from last evening's meeting is not as yet ready. It should be distributed this afternoon, so we will be able to discuss it at that time.
CYNTHIA LUCAS
The Chair: Without further ado, we will move on to the people who are presenting. Good morning, Mrs Lucas. Welcome to our committee. If we have a 15-minute time, typically the way that is divided is your presentation and some time for questions from the various committee members. You can divide that, however, in whichever way you wish. Please feel free to start whenever you are comfortable.
Mrs Lucas: Very good. I am a participant in the support and custody enforcement program referred to as SCOE. I receive child support for my son. I did not petition the courts to receive spousal support, nor do I receive same. I paid just over $9,000 in legal fees to obtain my court order. Every participant in SCOE has a court order, and legal costs were incurred to obtain that order. Court orders are not free.
My order states that I had to pay my ex-husband $22,750 for his interest in the matrimonial home where my son and I continue to reside. The order states clearly that he is to pay support for our son on the first of each month. That support is paid to the director of SCOE, who in turn sends it to me. This order does not say he can pay it on the third of the month or the 10th of the month; in our minutes of settlement and separation agreement, he agreed to pay it on the first. Had he not agreed, we would still be in litigation trying to get this matter resolved. My ex-husband is fully aware of his financial responsibilities to his child. Bear in mind that he has a copy of the order as well. My order has been violated 16 times in the past 24-month period. Did I pay $9,000 for an order to be ignored?
SCOE, as it stands, is not working. Bill 17, however, is too draconian in nature. Legislation that is middle of the road is what is in order. Tie SCOE's computer system in with the income tax form for results. Payers who do not pay according to the terms of their orders are penalized and payees are recompensed for their inconvenience because child support payments are late. The provincial government stands to gain the difference between in the revenues that would be generated.
Support enforcement should remain an issue among the government, the courts, the payers and the payees. This issue should not involve employers. They played no part in the issuing of the orders.
The prospect of being penalized for late payments will soon jolt payers back into the reality of meeting the financial needs of their children. My solution will keep the support issue where it belongs: the parties who are involved. I did not calculate these formulations with the intention of making money for the government. However, it turned out that way simply because the person paying support is the person earning the higher income. That is why they pay support initially.
Should a payer experience a serious change in financial circumstances, he or she has the obligation to return to the courts to ask for a variance in the original order. The better ability one has to meet support needs and the more payments he or she makes late, the more that person will be penalized for manipulating and abusing the system.
Bill 17 as it stands will result in more complexity, as it involves more participants. My system will include those who pay weekly, monthly, seasonally, semi-monthly. I ask the government to consider a viable alternative to Bill 17.
To avoid penalties come income tax time, payers will be more receptive to sending a series of post-dated cheques to their SCOE branches or even providing SCOE with chequing account pre-authorization. I have provided my outline of implementation as to how this is tied in with the income tax form. Also provided are copies of my SCOE case file, documents, the computer printouts.
When a support payment is received by the SCOE office from my ex-husband, that payment is recorded in the computer file. I understand that is a manual transaction. It is my suggestion that if that payment is late it can be noted beside the payment amount itself by way of an asterisk. I already receive an annual statement from the support and custody office stating the amount of support I have received in the previous calendar year. A notation can be made on that statement as to how many payments were late, thereby providing me with the information I need to do my own calculation. A tear-sheet similar to the Ontario tax credit sheet would be included in the income tax form and would be used only by those parties involved with the paying or receiving of support. If payments are made in accordance with the court order, even payers and payees will not be completing the form.
Hopefully this system will provide the impetus necessary for parties to meet their financial obligations according to court-order terms without complicating the issue further with the involvement of additional participants. Thank you.
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Mr Carr: I first want to thank you for coming here and taking the time to explain your personal situation, which sometimes might be very tough. We appreciate it. Could you give me a reason the violations happened 16 times? Do you have any reason there was this large amount?
Mrs Lucas: I believe it is simply because this system allows recipients like myself to be jerked around, for lack of a better phrase, by my ex-husband. I have even talked to my legal counsel about dropping out of the support and custody program, because every time that payment is late that order is violated. That is exactly what it is. He agreed to those terms or I would not have the order. That is the whole point. I paid a lot of money to get that order, and I do not care if it is a week late, a month late or a year late.
He was paid his money, because I went as far as a pre-trial in the litigation system. I had a very good case for exclusive possession of the matrimonial home for me and my son for the next 10 years -- I was told that by a pre-trial judge -- but at that point, I just wanted to get everything wrapped up. I figured, "Fine, I'll pay him for his interest in the matrimonial home" -- this is not spousal support; this is support for our child -- figuring, "He'll look after his obligations like I've looked after mine." Unfortunately, it does not seem to have turned out that way.
Mr Carr: I did not know if he just did not want to pay or if he could not financially, or if there had been some problems?
Mrs Lucas: It is not the ability to pay. I believe the ability to pay is there, and I believe it is there with the majority of cases. But I know that is a very busy office. I have tried numerous times to get through on the phone; it is very difficult, and they are busy. That is a big department, and I do not believe a lot of money is allotted. I understand there will be another increase in the annual budget projected for this year, but it started in 1987, and there are a lot of problems out there. I do not believe it is the ability to pay as much as the fact that court orders just sometimes do not mean anything to people, or not what they should.
Mr Carr: One last one: You mentioned the income tax form. I was just wondering if you had gone so far as to put something together about how you would see it work. I know you explained it a little, but did you have something written?
Mrs Lucas: Yes. It was my understanding that the committee would be provided with these copies.
Mr Carr: That might be the package I got from the clerk this morning. Okay, it was. I just received it when you came in. I will get a chance to read it.
Mrs Lucas: It is all detailed there, the different levels of income, because it is tied directly to the federal income tax. We only have three levels of federal income tax now, and this system is directly tied in with all of that.
Mr Wessenger: Thank you for appearing today. One thing I would like to advise you that may bring some improvement in the existing program is that SCOE is actively pursuing the electronic funds transfer and pre-authorization withdrawals from the debtor's bank account, and hopefully that can be implemented, which would --
Mr Elston: The payer's?
Mr Wessenger: The payer's bank account, correct.
The Chair: We are still working with your legislation; still "debtor."
Mr Wessenger: So hopefully that would help.
Mrs Lucas: I understand that with Bill 17 it would be like a forced deduction, but, again, you are involving employers. I do not believe this is an issue that should involve anybody but the parties who are involved at this point.
Ms S. Murdock: If it has been unsuccessful thus far, with the parties who presently exist -- and it has been, in terms of payment and the moneys that have not been collected; I think it is well over $330 million not collected in this province -- then why do you believe it is going to work that much better with maintaining the same parties and not including the employer?
Mrs Lucas: Because nobody likes to fill in an income tax form -- well, a lot of people do not; I should not say most people -- a lot of people do not, and I think it will only take one year of a person having to sit down and do his own calculation of how much of a penalty he is going to have to pay, dollars and cents, because he did not pay his child support payments on time.
Ms S. Murdock: And then who collects that?
Mrs Lucas: That would have to be between the provincial and the federal governments, but the federal government is already involved in child support anyway, because the person who is the recipient has to include it in his income tax form and the person who pays it gets to deduct it. So as far as I am concerned, the federal government already is involved.
Ms S. Murdock: So the federal government would become the collector for the provincial government.
Mrs Lucas: Right. It would be like a levy that would be on the income tax form. The person who receives it late would receive a rebate back and the government gets to keep the difference between, because in the formulation the person paying the child support makes the higher income. That is why they pay support in the first place. So it could be money-making for the provincial government.
Ms S. Murdock: But you fill in your income tax once a year. You are not waiting a year for payment, are you, to rebate to the --
Mrs Lucas: It would be just like an Ontario tax credit, just like we have them now.
Ms S. Murdock: So you would get it once a year.
Mrs Lucas: Right, just for being inconvenienced for receiving those payments late. There is not a deterrent there for the person paying them now. That is the problem.
Ms S. Murdock: No, in the present system it is weeks before they even get around to realizing that the payment has not been made.
Mrs Lucas: That is right. But if there was a little muscle to it and they realized that if they do pay late they are going to be penalized for it --
The Chair: Thank you very much, Mrs Lucas.
NANCY ZINNER
The Chair: Nancy Zinner, please.
Mrs Zinner: I just came in, so I do not know your procedure.
The Chair: I understand you do not have a brief with you. However, it was distributed to committee members before the hearings, along with the other packages. We have only a quarter of an hour. Spend as much time as you like with your presentation, and then the members of the committee in rotation will quite possibly have some questions for you. Proceed when you are comfortable.
Mrs Zinner: Good morning. I came this morning because I do have some very valid criticism of the things that have happened to me in the last 10 years. I understand things are so much better now. I called them antique 10 years ago, the laws which were available to help me in my plight back then, and I just feel I am a victim of time.
I will start by saying at this time that I am ready to really forge ahead with my fight. I have located my ex-husband and he has not changed. He still has the same views, I presume -- I have not spoken to him -- about nonsupport. He has very cultural beliefs about women, that if a woman did not work during the marriage she does not deserve anything. I did not work. I just was the hostess in his construction company and looked after five children. I do not know if that should --
Ms S. Murdock: And that is not work.
Mrs Zinner: No. Anyway, I will start by telling you that Mr Zinner is a very wealthy man right now. He is in construction in California. I have approached lawyers in Markham and they have told me that California has a 50-50 law. When you are married, everything is community property. Mr Zinner entered a marriage -- I do not know how much he had when he entered his third marriage, but his wife and he have opened a company and all the information I am going to give you is not hearsay. My eldest son, who is 23, went down to California and has found this out first hand.
Mr Zinner has a company which he has worked out that his wife owns and is paying him a very minimal amount for. I have heard it is $3 a month, but I do not know that for sure. He is claiming my children on his income tax returns. He is not supporting at all; he has not ever since the divorce. You probably have a copy of the judgement of $119,000 for 1983. During our marriage I was very trusting and I lent this man $80,000 which had been mine from the sale of a home, and he just up and left with that, and that was virtually all I had asked for when I asked for the divorce. I said: "I don't want anything. Just give me that so I can have my home for my children."
The divorce decree stipulates, because Mr. Zinner even fought that in the divorce, that he has no equity in that note. That is what that clause is in the support and the alimony part of the decree, so therefore I was really getting child support and that $80,000 was supposed to be for my home. Consequently I did not get anything so I wound up in Ontario Housing. I am sorry. I thought I was all right. You guys make me nervous.
The Chair: Please take your time. Take a couple of moments to compose yourself.
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Mrs Zinner: Anyway, I had the suffering in Ontario Housing. I was fortunate; I got into a co-op, which is still subsidized but it was like night and day. I had made a vow that once my youngest, who was zero when I was divorced, went into school, junior kindergarten, I would get out in the workforce. So what I did was I just stayed at home, I looked after the children and secured myself, I thought, emotionally. I went to Centennial College and now I am working for the Ministry of Health in Whitby Psychiatric Hospital. I am in an RNA nurse program. I have another job on top of that. I supervise the hospital laundry, but that is neither here nor there. I am off mother's allowance, but I understand that mother's allowance wants to be reimbursed for the money I have received over the last 10 years, which I think is fair and right.
I reviewed the pamphlet that Lisa sent to me, Bill 17, and all I could think of really when I read it was I wish I had this in effect away back then, because a lot of the things that are initiated in this have covered the deceit that men can use to either hide things or whatever. One in particular was that the director can now, if it goes through, define "income." He can use his own judgement to decide what is income to a non-supportive father, and if it happens to be his wife, then that is up to him. This is how most husbands are doing it. They are signing everything over to their wives.
That is basically it. I think it is a fantastic thing if it goes through. If it does not help me, it will help other women.
Mr Carr: Again, I want to thank you for coming here. For some of the other groups that are working for lobby groups, it is a lot easier because they do not have the personal situation, and I appreciate your doing that. It must be very emotional. Forgive me for being a little bit personal, but did you receive any money from your husband at all?
Mrs Zinner: Not a cent.
Mr Carr: Not a cent. If you got the amount that was supposed to come under support, would that have been enough to help you with the job or would you still have been in a difficult situation?
Mrs Zinner: Oh, no. At the time, when the children were young, I would have received $1,400 a month, which is adequate for rent and whatever, and I still would have, of course, for self-esteem, gone out and worked, but we would not have suffered like we did.
Mr Morrow: I just want to take a second. Thank you very much for coming down and talking to us. It is much appreciated. Thank you again.
Mrs Zinner: You are welcome.
Mr Kwinter: Mrs Zinner, when your husband was in Ontario, was he self-employed?
Mrs Zinner: Yes, he was.
Mr Kwinter: Just so that there is no misunderstanding, it is my interpretation of the Bill that if he were self-employed and if he had structured his finances in such a way that he was not showing any income, there would be no provision under Bill 17 for you to have any kind of recourse to it other than a garnishment or any of the other things that you could do, like getting a court order to attach his assets.
This bill provides that those people who are being employed and are getting regular payments can have those attached initially and submitted to the support and custody enforcement branch office for distribution to the child and support person. I just wanted to make sure you understood that, and unfortunately, and I really feel it is unfortunate, there is a strong possibility that your situation would not in any way be resolved by this bill. I just want to know whether you understood that.
Mrs Zinner: That is why I mentioned the definition by the director, because although it is not shown on paper --
Mr Kwinter: What that definition says is that if you are in fact a wage earner who is getting regular payments, and you are getting additional payments, the director can ascertain that those are additional payments that can be included. But the operative situation is that you have got to be an employee somewhere who is getting regular payments that can be attached through your employer, and that if you were a self-employed person, regardless of where your income was coming from, you would not be affected by Bill 17 and you would have to have the other recourse that you have now under the law, of getting a garnishment against the company or getting a court order against his assets; just as long as you understood that.
Mrs Zinner: I see a big battle. Thank you.
The Chair: Thank you very much, Mrs Zinner. I think your testimony, although I appreciate it is very difficult for you to offer, is the very kind of testimony which gives real value to our hearings.
GAIL FORBES
The Chair: Ms Forbes, I see you have been observing the proceedings so far, so I need not give you the full introduction, but simply perhaps you could mention your name into the microphone and proceed.
Ms Forbes: Good morning. I am Gail Forbes and I thank you for the opportunity of speaking with you today.
For the past 10 years I have been entitled to receive child support. Due to difficulties I experienced in receiving payments, in 1982 payments were ordered to the Family Court and forwarded to me to ensure proper payments were made. This did not prove effective since my name was near the end of the alphabet and it took a long time to get to my file to start enforcement proceedings.
In 1986 I registered with SCOE as a result of the new law and with the belief that my troubles would be over. The SCOE office in Oshawa appears to have a heavy workload, not enough staff and little training as to dealing professionally with the public. When support payments are late and you call the 1-800 number, there is a series of recorded messages. When you wait to speak to a counsellor, you are told you are one in 80,000 cases and that your case will be reviewed two to three times a year.
This statement is just a little hard to deal with. Should one feel comforted that you are in such a large group? Do you tell your children that it is okay, since there are thousands of other children without food tonight, and two or three times a year someone is going to look at the file?
You are also told to go now to your local office for assistance. When you do go to the local office, for the most part you are treated as the culprit instead of being treated with dignity as the customer or the public. SCOE explains that if a garnishee is begun against the payee and the payment is received at the last moment, then the procedure is cancelled. Therefore, the payee quickly learns to stall until the last moment, and SCOE avoids starting a procedure that could be costly in time and money, but where does that leave the children?
There does not seem to be any strong teeth in the current law to make certain support payment are made on time, in full and without hassle. What do the children learn from all this? That they are not worthy, not cared for. They are having enough problems simply growing up without this additional burden. How can a parent instil values for a lifetime so that the children become good citizens and community leaders of tomorrow when there is no law which enforces their basic right to receive support?
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There are those people who think they are not affected since they have not been in a family situation such as this. They are missing the point that they are taxpayers and it is the taxpayers' dollar that is supporting people in difficulty who are not receiving their payments on time. Imagine yourselves if part of your income was stalled and when you inquired the attitude was, "Well, you're one of 80,000 employees on our payroll and mostly you're paid on time, so what's the big deal?" How would you explain to your children why groceries cannot be bought, why you cannot go on the school trip, why your birthday and/or Christmas present has to be delayed, why the orthodontist is just a little bit cross because your cheque for the orthodontic treatment was not sufficient funds because the payment was late, why you cannot meet the deadline for college tuition after your child has worked hard to attain the marks to be accepted? The list goes on.
The focus of my presentation is threefold. Is the present law working? I do not believe a 25% success rate is a positive. Where can one go for help if SCOE is not effective? Gosh, I have not found the help I needed to make it effective since it has been established. How should it be changed? Bill 17 is a positive start.
However, please look closely so that loopholes can be closed and that the law can be enforced quickly, simply and effectively so that child support payments are received. Please make sure there is adequate training of SCOE employees so that the job is done correctly and that their mission statement is effective. In the newspaper I read that Paul Slan pointed out some of the loopholes in this law. Please do not make it so wordy that those payers that are excellent at finding the loopholes, do find them.
The Chair: Thank you very much Mrs Forbes. Mrs Murdock? Ms. Murdock, excuse me.
Ms S. Murdock: I am just wondering, because it was mentioned before on another day with one of the other presenters, about having this Bill 17 reviewed after a period of time just to see if it was working. What would your thoughts on that be?
Mrs Forbes: I think that is an absolute in that it is like moving into a new home or any new situation. Until you get it working, you do not know what some of the pitfalls are going to be until they happen. I think there should be a time frame for review, so that we are not in the same situation where we have it mushroom out of control and then this many years later we are trying to fix it.
If there was a constant review and if there was a court of appeal or somewhere you could go to say: "This is my problem. Please look closely at it" -- there is too much of a silent majority out there that tends to think, "Life is simply so busy that I cannot take the time off work to go to SCOE or to get another lawyer or to come here and speak with you today." So there are a lot of people out there in the same boat who would be grateful for that review.
Ms S. Murdock: In listening to what you were saying, I was thinking that in my previous work I listened so often to the SCOE complaints so I know exactly where you are coming from. Actually I am very pleased with this bill. I appreciate your opinion and thank you for coming.
Mrs Forbes: You are welcome.
The Chair: With the indulgence of the committee, as we are running in good time, perhaps Mr Wessenger could also ask a question and of course the same indulgence for the other.
Mr Wessenger: Mrs Forbes, thank you for your presentation. I would just like to know, is yours one of these situations where you have found it difficult to collect from a payer? Is he regularly employed?
Mrs Forbes: My former spouse is a vice-principal of a high school in Oshawa and has 25 years' seniority. He has to drive by the SCOE office four times a day. He lives within two miles of the SCOE office. What can I say? The board of education pays him the last Thursday of every month. He gets his summer salary the third week of June. My most difficult months, interestingly enough, are July and August, the children's birthday months, and December. It seems to be a way to control and punish for whatever deemed crime, except that the children are the ones who are at the receiving end of it.
Mr Wessenger: So having an automatic deduction order would assist you greatly in your situation?
Mrs Forbes: It certainly would. We had a recent cable interview regarding this issue. My question would be, how would that work for an employee who gets paid in June for July and August, because the cheque comes in advance for those two months, and how would that deduction work?
Mr Wessenger: That is a good point to raise.
Mrs Forbes: That affects many thousands of people in the same boat who get paid in the spring or in June for the summer months.
Mr Wessenger: I am just getting some advice from staff. Unfortunately, the way it is presently structured, it probably would be collected as arrears when the paycheque came in on 1 September.
Mrs Forbes: If it was set up so that it was a payroll deduction, then there would have to be some glitch in there that would avoid taking it out in advance. Even though the salary was payable in advance, it does not seem to me that would work. As for collecting it for July and August in September, there has to be a better setup with that, because you cannot tell children, "Wait till September and then you can pay what you needed to pay for college tuition in July." That would not be effective.
Mr Wessenger: The court has the power to make a deduction payment order and it might be within the jurisdiction -- or it would be something to be looked at, to see if it is within the jurisdiction -- of the judge to make that order.
Mrs Forbes: Please let me also ask this question: If this keeps going back to the court, it is extremely costly for the custodial parent. Like the lady who spoke before me, it cost a fortune to try to get the rights established, moneys that I had to borrow from family. Do not put me through that indignity of having to do that again to enforce something that is already in place. To then say "Go back to the court to get this carried out" is easy to say, but difficult to do. The process is long, slow and involved and extremely costly. You are then taking more money out of the children's mouths if you do that.
Mr Wessenger: Perhaps I might let Ms Feldman give an answer here.
Ms Feldman: Your situation is really appreciated, and it is a very difficult one. Unfortunately, when the order calls for the monthly payment to be made each month, then there is not much that can be done to collect in advance until there are arrears, until that debt has become due. It would be something that perhaps the lawyers and people at large might be educated in, that if a payer has paid in a certain way that is known in advance, then the court order should be structured to allow for those advance payments.
Mrs Forbes: That does not help people who are already in my situation with a court order, and there are thousands, so we still have one huge problem here. I understand the arrears. I totally agree with that. But you are still forcing people like myself back into the courts; costly, takes time. By the time I got to court it would be September and the arrears would start to have -- they still have to survive July and August. In years ago, when I then needed help in caring for the children for the summer months, how would I ever have paid for it if I had to wait till September? You cannot go to a summer camp and say: "Gosh, I will send it to you in September. Just take them for July and August." It will not fly.
Ms Feldman: It is a very difficult situation.
Mrs Forbes: Yes. There are still thousands of children out there who would be penalized by that.
Mr Elston: Just one quick question to staff: Is it still appropriate if, for instance, you find in this particular situation that a garnishment can still be used under the support order?
Ms Feldman: Depending on how SCOE thought it most practical, a default hearing would probably be the more practical resort as far as an enforcement mechanism is concerned, knowing that a person got paid in June for the advanced month if that person was not paying. But again, the arrears have to accrue.
Mr Elston: But knowing how things slow down in July and August in the courts and how much of a backlog there is, it is not effective to deal with Mrs Forbes's particular situation because the collection will still be done down the road.
Ms Feldman: That is very possible.
Mr Elston: It is in fact probable. It is just not going to be practically possible if the default occurs for July to have anything scheduled for her to get money or for someone in her position to receive money in a timely fashion. Perhaps we should try and figure out how we can manage it just a bit better.
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I would also be concerned, by the way, if this procedure were set up so that the order said a payment was made in June for July and August as well as June, for instance, that SCOE would withhold the money until the payments were due in July and August. If the payment was collected in June, it probably should go out all at that one time to the person, but as it is now, if you get overpaid for a monthly payment under SCOE, SCOE keeps the excess and sends it out later on. I think that would be quite unfair as well in the sense that the payment, if it was made during the marriage, would be available fully for the children and the spouses equally, but under the current administrative setup, you would sort of just dribble it out in July and August, which would be a break from the way it would have been intended to have been made available.
Mr Wessenger: If it is all right, Mr Chairman, the staff would like to respond.
Ms Feldman: Once again, the enforcement program can only enforce the court orders as they stand, and we recognize that many court orders just do not confer the best payment methods for certain payees like Mrs Forbes. But we cannot advance money that is not yet due; we are mandated only to enforce the court order that we receive that is existing and valid.
Mr Carr: I think your situation is one that everyone would agree there needs to be some type of system to get the money out. There are other situations, and they are more fortunate, where people can agree and the payments are made. In light of the fact that there are so many problems relating to getting through, the one in 80,000, I was just wondering if you would like to see those ones where some agreement can be made to stay out of the system, remain out of the system so people like yourself can get better service. Would you agree with that?
Mrs Forbes: I think that would be great if that could work. People's temperaments change, their lifestyles change, and for whatever reason, bitterness may occur. If that was allowed to happen, that people could agree and stay out, and I think they should have that choice, there should be something there that helps them should it turn invalid so they do not have to once again have a lawyer and go back to court. There should be some message built in the law that states that within a time frame if that is not viable this therefore takes over so that the person is protected.
Mr Carr: I think if this system comes in place and people know that if they do not do it willingly, I think the Attorney General said that people know very clearly that there will be something in place that they will be able to get the money, then it might encourage more people to do it voluntarily, which would be great because then we will not have the telephone lines backed up.
Mrs Forbes: That would have to have very strong teeth, because currently the law states that there are effective measures but in fact they are ineffective. So whatever teeth are put in the bill to make sure that if you do not pay this is what is going to happen, then that has to be loud, strong and come on hard because otherwise it is one more pitfall.
Mr Carr: The Attorney General has talked about a campaign -- I think when he was here on Monday -- similar to the drinking and driving, where people would know. But just to sum up, you would be in favour, then, that the people who are willing to pay and can come to some arrangement, you would rather keep them out of the system if at all possible.
Mrs Forbes: It would reduce the numbers and perhaps make it a speedier effort on behalf of the staff who are implementing it.
Mr Carr: For the people who really need the concentrated effort like yourself.
The Chair: Thank you very much, Mrs Forbes. Very obviously, whatever improvements we can effect in the legislation, you are reminding us that children cannot be fed retroactively.
LONDON STATUS OF WOMEN ACTION GROUP
The Chair: We now have a presentation from Margaret Buist of the London Status of Women Action Group. Mrs Buist.
Ms Buist: It is Ms.
Ms S. Murdock: You will learn yet.
The Chair: I always want to give the benefit of the doubt. We have half an hour, Ms Buist. Typically, it is divided in half between your presentation and questions from the various caucus members. Proceed when you feel comfortable.
Ms Buist: I do not have a written brief for you, because I know what happens: I hand those out and you look at them and do not listen to me. So first let me tell you about my organization.
Mr Elston: Sometimes it helps to have it twice.
Ms Buist: I can always provide you with one after you have listened.
I am here representing the London Status of Women Action Group, which is an organization of men and women in London, and we also represent people from southwestern Ontario committed to improving the status of women. I myself am a lawyer. I run my own law firm in London and one of my specialties is in family law, which was why I was asked to come and present this presentation to you with respect to this bill.
Let me start with the basis on which I am presenting to you today. It is our position that the majority of people who are owed support in this province are women and children, and the majority of these creditors are not being paid. I am not telling you or anyone else anything we do not already know.
I would like to congratulate the new government on its efforts to introduce this bill and to address a very major social, economic and legal issue in our province, and that is, of course, the enforcement of support orders. The province has introduced this bill, which I think is needed, but it needs some strengthening in certain areas and that is why I am here to speak to you today.
More than strengthening this bill, though, we need a major commitment on behalf of this government and also the entire population of the province to shift our attitudes towards support. We need to redress economic imbalance between men and women in our province. The fact is that more men have more money than most women. This law tries to redress this particular imbalance, and it is only one portion of it: We already have under the Family Law Act and also the previous support act very well set out that there is an obligation to pay for children and for spouses who are in need of support. As you know, that is based on a needs and means test. That is quite clearly set out and has been since well before the new Family Law Act of 1986, that we have a needs and means test for support.
But let's not forget that we are here to talk about Bill 17, which is enforcement of support. We are not talking about the fact that women and children need support. That has already been addressed in the Family Law Act. What we are here to discuss today is the enforcement of support. How much women and children need and how much men can afford to pay is already decided by the time we get to Bill 17 in the legal process. The courts have already decided what the amount of support should be. What we are dealing with here is how that will be enforced.
What we are talking about is no different than someone not paying on his MasterCard, not paying the bank or not paying on his car loan. This is a debt. The only difference, and it is an extremely significant difference, is that we are talking about supported individuals for basic needs such as food and shelter. But we need, in this province, to grasp that it is just as important as a debt owed to a bank or to MasterCard or the car loan. And believe me, those debts are strongly enforced by our courts.
Given that framework, let's look at Bill 17. But briefly, before I do, I have one other point to make. On Monday the Attorney General agreed that these hearings were open to discuss access enforcement issues as well, as I understand it. In our organization -- and I myself was very disappointed by this quick change in focus -- these are two entirely separate issues, and I urge you not to relate them and/or confuse these two issues. Support enforcement is not the same as access enforcement. I speak as a lawyer when I tell you that the law is very clear on this fact. We have been trained as lawyers to recognize from the very first day of our family law classes that support is different from access. Access is determined in the best interests of children and includes such issues as their physical safety or their emotional wellbeing. Support is based on financial need; it is a financial question.
You have heard some people before you at this committee, and I am sure that one or two of the men who will follow me this morning and this afternoon will tell you their hard-luck stories of how they pay and pay support and never see their children. There are many reasons fathers do not see children. They may be violent men, they may mistreat their children. But these are not related to support issues. They are separate issues from whether these men should pay for food and clothing and homes for their children.
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Let me put their arguments in perspective and, hopefully, to rest. They argue, "If I pay for my children, I should get to see them." By this logic, we should ask ourselves: If they do not pay for their children, should they not get to see them? Well, no one would agree with my second point. I will no longer sidetrack on the issue of access, but I would ask this committee to do the same. This is not access enforcement. We are discussing support enforcement in these committee hearings. Now to Bill 17.
The women I represent approve of several areas of these bills, and I will briefly run through them for you. First of all, we definitely approve of the concept of direct deductions from pay. This is one excellent additional way to enforce support. It is limited in its scope to those men who are employees in steady jobs with co-operative employers, I would argue; but essentially it is a good idea.
Second, from my perspective as a lawyer, I would commend the government for adding sections regarding the use of writs of seizure and sale. All of us who are practising in this area recognize that at a certain point in its enforcement techniques SCOEA is limited in what it can do, and that adding the sections using the writs of seizure and sale is a very important addition to this act. Also, the explicit addition of powers for motions of contempt and orders of contempt in the Ontario Court (Provincial Division) are important, as those of us who practise law recognize. This has really only been through common law, not necessarily statute, and that is an important addition as well.
Let me discuss briefly with you the areas of improvement that we see necessary for Bill 17 prior to its passing in the Legislature. First of all, with respect to the name, I might suggest to the committee that the name is confusing. We already have the Child and Family Services Act, which deals with child protection matters. To call this the Child and -- I have forgotten the name; Child and Family whatever it is. You know what it is. Whatever it is, Child and Family something, is confusing.
I would also like to point out that the word "spouse" is not in there. As we all know, most support orders are for children but many, many support orders are for spouses, and those are paid less frequently than for children. I have heard that in the government's educational campaign it is going to appeal to the general public with respect particularly to supporting children, but I would also say that we must not ignore spouses who have been awarded support by the courts. My suggestion would be to consider including the word "spouse" in the act and call it "child and spouse" enforcement, if necessary. The fact that spouses are not in there causes me some concern, because there is a tendency, on the part of the judiciary and the part of the legal community and the part of payers, to ignore the fact that many women are owed support by their husbands.
Second, and probably most important, I think the weak link in this act is the sections that deal with giving notice, both by the debtor and by the employer or income source, I believe it is called. Subsection 3c(15) provides that within 10 days of an interruption in payments, an income source and a debtor must give notice to the director, and subsection 3c(16) says there must be 10 days' notice when payments are resumed. This relies a great deal on the cooperation, not just of income sources but particularly of debtors. And we all know by the staggering statistics that debtors are not particularly co-operative when it comes to paying their support.
I would suggest to you that there needs to be a much stronger enforcement mechanism than currently exists in the act when this notice is not given. Sections 12a and 12b provide some remedies through motions for contempt or basically what would amount to a provincial offence. However, and I am sure that those of us who have tried to enforce restraining orders can tell you, first of all, getting one of these offences laid is virtually impossible and the delay in bringing motions for contempt or provincial offences for the enforcement of giving notice can take up to six months.
Anyone willing to shift jobs frequently could easily frustrate the purpose of this act, even though they are employees. And employers who are not willing to co-operate can still easily, I would argue, frustrate the purpose of the act. I would also point out to you that in practice, in my experience and those of my colleagues, we are still facing a great reluctance on the part of judges to enforce support orders, and to order fines or imprisonment for recalcitrant debtors is extremely difficult. The judges are not willing to do that in many, many cases. If those are the only remedies for not giving notice and judges are unwilling to use those remedies now, I think that creates a great weak link in the act for people who are willing to shift jobs and collaborate with their employers not to give notice, for example, when their income starts up again.
Also, I would point out that the sections with respect to notifying of address changes -- again, that section, I would submit, is almost farcical. These men do not even show up for court, far less notify you of their address changes.
My other concern is with the consent to remove yourself from the provisions of the act by posting security. I understand that the government is considering a four-month period of support as sufficient security, because that is essentially what would be the time-lag in SCOE enforcing a breach of these orders. I would argue that is extremely optimistic, to think you can enforce these in four months, when I know from my clients that the current waiting is well over a year. The backlog is not going to change immediately, it is not going to reduce immediately and four months' support as security is simply not sufficient. A year or two years perhaps, to post security if you want to opt out, would be a minimum. And I ask you to think again: Would MasterCard accept such an arrangement? Would the Bank of Commerce accept such an arrangement? I would submit that they would not.
My other concern, and I would like to address this directly to the staff of the Attorney General, is that currently with respect to support orders we must put the address of the creditor on those orders and/or as lawyers put our own addresses and therefore be involved in the process. I do not see any change in that in Bill 17, and I would bring to your attention that for women who do not want their spouses to know their address, who are in fear of violence from their former spouses, this is a problem. Women need other options than putting their address on the order, and I would urge the Attorney General's department to consult with women's groups, particularly those dealing with issues of violence against women, to find other alternatives.
I would also urge that in addition to Bill 17 the government must take a proactive educational approach. A campaign similar to drinking and driving towards the general public is warranted. I would ask that the government consider adding not just focusing on child but also spousal support. I would also ask the government to seriously consider a strong educational program for the judiciary on support enforcement. The judges, in my experience and that of many of my colleagues, are very reluctant to use the remedies already existing, and I assure you they will be reluctant to use any new ones as well, unless they are educated on the importance of redressing the economic imbalances in our society, one of which is caused by the huge amount of support which is not paid by men to women and their children.
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The Chair: Thank you very much for that excellent brief.
Mr Kwinter: Ms Buist, if I can just pursue something, I want to qualify what I am going to do. I am not particularly advocating what I am going to say; I am really acting as the devil's advocate. I am just curious to get your reaction. You stated that one of the problems is that there is not a recognition that a debt in a support order is no different from a debt on a credit card, a bank or a mortgage. Is that correct? I mean, is that what you feel?
Ms Buist: In terms of the fact that it is a debt owed to someone, I agree with that. However, it is more important than a debt owed to MasterCard, in my submission, because it deals with the livelihood of individuals, as opposed to the support of a business or a corporation. It deals with putting a roof over women's and children's heads and food in their mouths.
Mr Kwinter: The point that I am trying to determine is, if this debt is not in arrears, in the same way that if you have a MasterCard or if you have a bank debt or if you have a mortgage and you are paying it on a regular basis and you do not have a problem, why would you want this particular debt put in the hands of the employer so that he pays it and not say all debts? If you have a MasterCard account, if you have a bank loan, if you have a mortgage, the employer shall deduct all of these at source so that no one will have any problems any more collecting anything.
Ms Buist: I think it is a question for where our society sets our priorities, and our priority, in my submission, should be in making sure that women and children are supported by those who have already been ordered to support them. We have clear evidence that men are not fulfilling those obligations. The statistics are staggering and therefore I think we need to make a statement to our society. We need to educate our society and this is a very effective means of doing that, to make a statement that this is an important debt which must be paid first and foremost. It is as important to us as your provincial tax, which is often deducted at source.
Mr Kwinter: Okay. If I can just pursue it, though, the point I am trying to make is that I acknowledge its importance. But what happens if it is being paid, it is being paid on a regular basis, there is no problem with it? In the same way that there is recourse if you do not pay your MasterCard, you can get a garnishee and you can do whatever you have to do and this could have priority over any other debt. But why single out this particular payment as being mandatory, that regardless of whether you are paying it on time, whether you have never been in arrears, it must be deducted by your employer?
Ms Buist: Again, the statistics speak for themselves as to the necessity and, second, the act also provides a provision for someone who is responsible, one of that 15% who is responsible, to, with the trust of his spouse, consent to the removal upon the posting of a security. So there is provision not to have this mechanism take place.
Mr Kwinter: It is my understanding that the provision is only there if you prepay at least four months' payments. Is that correct?
Ms Buist: Yes.
Mr Kwinter: So what it really does is that even though you may have the money to pay on a regular basis, you may not have the money to prepay four months, and you would still be penalized.
Ms Buist: I guess those tiny minority of men who are responsible have to pay for those who are not.
Mr Kwinter: Again, I am just speaking hypothetically, but I really do not accept the fact that there is a tiny minority of men who are responsible. I just do not accept that. I think it is a generalization.
Ms Buist: I am sure the Attorney General could give you the current statistics.
Mr Carr: No, he cannot.
Ms Buist: Relatively current statistics, then, on the default in support.
Mr Wessenger: I understand that we have given the statistic. It was 20% of orders currently are being paid in full.
Mr Carr: You cannot tell us why they are in arrears. You cannot tell us why and we had Dofasco --
Mr Wessenger: We know how many.
Ms Buist: Why is it relevant why they are in arrears?The reason for arrears is irrelevant. The fact is that they are not paying. If they want to take steps to deal with the reasons for arrears, that system has been in place in our legal system for decades.
The Vice-Chair: Mr Elston, if you will keep it brief, please.
Mr Elston: Our witness had indicated that fines and imprisonment have not been used. I know that to be the case as well, very often. What would an alternative be? Have you got a suggestion for us?
Ms Buist: I think imprisonment is very effective. It is just that the judges will not use it.
Mr Elston: Except the jails are busy and that means that people lose jobs and things like that. How does that help the children and the spouse? We got into this yesterday a wee bit in discussing other things. If you are looking at helping children and spouses who are not being supported, prison and fines going to the province do not seem to me to be a great alternative. Why should the crown get paid and the children not?
Ms Buist: Again, I am sure the Attorney General could speak to this better than I could, but in my experience, the day before or usually the day after these guys go into jail, the money appears. It is an extremely effective means of having these people pay.
Mr Elston: And oftentimes you will find that these people will be apt to be asked to change employment as well. If they turn out to be resident at the local jail for a time, people cannot count on them, right? It is a difficult question. It is not as easy as just instructing judges to do certain things like throwing people in jail, because they recognize there is a question of -- well, we ask them to pay money to the crown instead of to their spouses who need the money. Then that is taking food out of people's mouths just as effectively as not paying at all. Or if they throw them in jail, they are not earning the dollars, and that likewise is causing problems. I am looking for some alternative to that which would be more effective.
Ms Buist: One of the other alternatives that I see Bill 17 has addressed is the strengthening of the provisions with respect to writs of seizure and sale, and that is important. If there is a piece of property available, that can be seized and sold and the proceeds from that sale can be applied towards the arrears.
Mr Elston: It can be now as well.
Ms Buist: It does not happen, though.
Mr Elston: Okay, but it can be done. You would be able to do that for your client, right?
Ms Buist: Oh, sure, I could do that for my client. Yes.
Mr Elston: Just to follow up, because you are a practitioner in the area, what does it cost now for an application by you for enforcement of a payment order, roughly?
Ms Buist: To do a writ of seizure and sale, you mean?
Mr Elston: Yes, or even just to bring in for a default hearing.
Ms Buist: To do a variation of support and a default hearing and all that kind of thing?
Mr Elston: Let's say you just come in to do the default hearing. What would that cost? Because that is the other problem. In the system currently now, people pay a lot of money and often do not get the results. That is why we are here and that is why all three parties are supporting a technique to get away from it. Because one of the problems obviously becomes that as soon as money goes either to the legal system or to the crown for fines or somebody is thrown in jail, we have not addressed the issue which is paramount in your presentation, which is getting dollars to feed and clothe women and children. So the issue is, you know, what does it cost now if there is an application by your client through you to the court? What would you charge?
Ms Buist: First of all, I do not do that many default hearings, because I do not usually represent people who do not pay their support.
Mr Elston: Hypothetically, if you did some, what would you charge? What is the going rate in London? You are in the bar there and you must have an idea.
Ms Buist: It is based on an hourly rate, but a rough estimate would be probably, to do a variation and a default hearing, around $1,000.
Mr Elston: Okay. So $1,000 would be then taken up with legal fees and again unavailable.
Ms Buist: But do not forget, Mr Elston, that these men have been ordered or have agreed to pay a specific amount of support. They now change their minds or they have a change in circumstances and they want to vary it and they want to get out of their obligation. I mean, there is a cost to that always.
Mr Elston: Listen, I agree with you. My concern is not that we, because it is going to be costly, somehow soothe their breach. That is not the point. The point is, though, that if a spouse who was not receiving payments asked for you to represent her on a default hearing or to appear in answer to a variation application, likewise she would be probably subject to a payment to you of $1,000 or whatever, and if the point of this is to remove that cost, then we should move fairly quickly to do it.
The other side of it is, if you could tell me what would be an alternative to fines and jails, which likewise are drains on the resources available to what used to be a family unit, I would be happy. We did talk about this yesterday with the Attorney General's assistants and there did not appear to be one that was likely to come forward.
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Ms Buist: I can only repeat myself in saying that I think the threat of jail is the most effective way to secure the payment of arrears.
Mr Elston: You have just told us, though, that there is no threat to a number of individuals who kind of, what do we say, go to the threshold time and again.
Ms Buist: Right.
Mr Elston: If people are understood not to be going to issue orders on contempt, then it is not effective either, and that is one of the things we got into, talking about the $10,000 or $4,000 fine issue.
Ms Buist: Yes.
Mr Elston: Can you suggest to me -- this is my last question-
The Vice-Chair: Thank you very much, Mr Elston.
Mr Elston: Can you suggest to me some way of dealing with the issue of reluctant employers? That was another area that you saw as a possible concern. Is there something that can be done there, in your view, that would prevent them from being reluctant? I just want to bring to your attention that the chamber of commerce and a couple of other organizations that represent employers are in support of this, by the way.
Ms Buist: First of all, education is the most important and effective way and, second, heavy fines through a very quick process.
Mr Sorbara: Can I just ask a supplementary? It will just be one supplementary. I was wondering if the witness is really in favour of reinstituting debtors' prisons in the province. I am surprised to hear that, frankly. Is that your view?
Ms Buist: We have them already. They just are not used effectively.
The Vice-Chair: There are an awful lot of questions that all members would like to ask. Can I please have an agreement here that we extend the time by 5 or 10 minutes?
Mr Sorbara: Agreed.
Mrs Cunningham: I always remind my colleagues on this committee that I am very fortunate to live in London. l get some good advice all of the time: Again, another source of good advice for many of our issues is from yourself, Margaret, and we appreciate it. I think you are going to be asked a lot of questions today because they see you as a person who can probably help us out a lot on meeting the needs of everybody. We have some concerns that philosophically would not agree with your views or mine, but they have been raised at the committee and we are looking for a constructive way of improving this legislation. It is rather refreshing to have these kinds of interchanges between the parties on this, so that is what we are looking for. I appreciated the line of questioning by Mr Elston.
We have had a couple of concerns. One is with regard to the fact that most of us would rather be talking about constructive programs than spending our money in the courts. I do not even like this bill for the reason that I do not see it doing a lot to the kind of people you deal with, but it will do something. I would rather be spending my money on supervised access and support services for families.
The idea of some father or mother being in jail just upsets me, because I do not think it is constructive to the long-term quality of family life at all. In my work at Merrymount Children's Centre, for some nine years I was involved in supervised access and it was great. We took care of all this stuff and we would phone the local lawyers and say: "Guess what. We're going to save you a whole lot of hours of work." Most of them were most appreciative. So that is where I am coming from.
I have two problems. Mr Elston was pursuing one of them. The penalty, I do not have a clear view as to -- you have given us some suggestions, and we will look at that. The other one is the whole idea of the person who has a good track record, and there are a few of them in my view. But some of them are playing, I think, an important role in their families and in their communities. There is a certain section of our community right now in London that has written me letters. I have probably over 50 letters from people who I represent and they just use the excuse and their great concern that this is one more reason not to do business in Ontario.
Now, that may sound shocking to you and me, but some of those people are in my office. They are talking about the tremendous taxes they pay, the intervention in their private lives. They talk to me about what they are doing with their families now. Their greatest concern in the last 10 years has been the fact that even when they want to give their families more money, they still have to go to court to do that. We had an example of it here yesterday, the young man who was out of a job for three years when he first became separated; it was easier for him not to work. He is finally working and paying up, and just last week was told that he could not give his wife $15 a week more for music lessons without going to court and it would cost him $1,000 -- the example that you just used.
Do you think there is room for some discretion in the regulations, anything that could save people from having to go to lawyers or having to spend more money in the courts? Is there anything that we could try on an interim basis? I think we should be putting some kind of sunset or review in this legislation after a year or two to see how it is working. That would help us solve the problems of that percentage of our community in London whom I represent. I cannot just come with my own personal views, which are somewhat tainted because I have worked in the same field you have worked at.
Ms Buist: I am not sure I am clear on your question. You wanted to know, I believe, from me what cost-saving measures could be put in place for those debtors who are responsible and pay.
Mrs Cunningham: These are not even debtors. These are people right now who pay and would like, some of them -- I mean, far be it from you and me to even recognize this, but they came before the committee and they had their pieces of paper yesterday and said: "We have to pay a lawyer $1,000 to get a variation in our support. Some of us have been supporting our families for seven and eight years, some of us have been supporting them for 15, and every time we want to change something we have to spend money if we stay within the law."
We are now saying to those same people, "Not only do you have to do that, but you now have to go to the director and make sure that he knows about even an informal separation agreement, and he is now responsible for, in some way, making certain that you pay up." So it means in most instances, except where two people agree, and I do not know how that is going to work yet, they will have to go to their employer. The employer would be informed by SCOE that this person must in fact have these payroll deductions, for want of a better word.
Can the director of SCOE, either by the regulations or legislation say, "Look, we've got a number of people in these communities, that in fact it's working for them now"? Is there some discretionary power we can give the director so they do not have to spend one penny on any legal action at all and give it to their family members? In your experience in other law or what you do in your daily life, are there any regulations that are a precedent for that kind of thing, saving people money where things are working? I am talking about where things are working.
Ms Buist: First of all, as I mentioned before, as I understand it, the people for whom things are working are a very small minority.
Mrs Cunningham: But they are there.
Ms Buist: They are there.
Mrs Cunningham: And we want more of them.
Ms Buist: Certainly. But they are a very small minority. I think when we look at the entire situation, direct deductions from pay could be a significant cost-saving approach for this province and also, therefore, for individuals through their taxes. All of us pay a significant amount of provincial taxes which go to welfare, social assistance, to support the women and children who are not being supported by their husbands and fathers.
Mrs Cunningham: But you really have not answered my question, because I agree with you in many instances that the direct deduction from payroll will be cost saving. But I am talking, where the government is not involved in any way or the employer is not involved in any way right now, they will be as a result of this legislation. For even 10% of the fathers who are out there -- I do not know what the number is -- have you got a suggestion for the committee? That is basically one of our great struggles right now.
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Ms Buist: I think the act itself provides a mechanism to deal with those particular individuals, and that is in the section that deals with consenting to opt out, clause 3d(3)(b), where it says that the "parties to the support order have agreed that they do not want support payments collected through a support deduction order," and then also a very important proviso that security be posted.
You can go to the court. You do not need a lawyer in Ontario Court (Provincial Division). It is designed to be relatively simple, and some people do represent themselves -- it is possible. You can make an agreement with your spouse that you do not want a support deduction order and, therefore, you do not have to be involved in the process. That would deal with that tiny minority who have a basis of trust in their relationship and who are responsible and pay. Yes, they have to post security, but I think that is also an important aspect of bolstering the trust between the parties.
Mrs Cunningham: But you were also suggesting that the security be a year or two years.
Ms Buist: Yes.
Mrs Cunningham: So the kind of people I deal with in my office, between them they would be lucky to be earning $25,000 a year. I am talking about men and women working together. How would that person even post a security? The three or four people I saw last Friday in my office to talk to this legislation -- because I got a group together who think it is good legislation -- could not, even if things were working better in their family, post a security; and that was their complaint about not having, after a track record of a couple of years, the opportunity just to deal with it in their own separation agreements and having no government involvement.
Ms Buist: Yes, and I would reiterate the point I made before, which is that sometimes this small minority has to pay for the irresponsibility of the majority. It may be inconvenient for them, it may be a little bit more costly for them, but I think we have to recognize that a huge number of support orders are not respected and are not followed and that many, many people are in contempt of these orders. The small minority has to pay as a result of that. I think it is very dangerous in legislation like this to provide lawyers and judges in particular with an option to opt out of the system. I can assure you that under the current system, where you have the option of withdrawing your original support order, there are many, many women who are coerced to do that.
Mrs Cunningham: I know about that. I was not suggesting lawyers and judges. I was suggesting, in this case, the director of SCOE, because it does happen with regional and area directors in the offices of the Ministry of Community and Social Services that there is a lot of director discretion based on different issues, for instance, child care, the needs of the disabled. There is a lot of director discretion in legislation. I thought this might have been an opportunity to try it again, but I do appreciate your frank answers and your excellent presentation today.
The Vice-Chair: Thank you, Mrs Cunningham. Mr Carr, in the interest of time, I will move to the NDP and if there is any time left, I will come back to you. Mr Mills.
Mr Sorbara: Why do we not just dispense with the NDP?
Mr Mills: You cannot do that. I am very pleased to be here today to listen to your presentation. I thought the whole nub of what you are trying to say is that we do need a shift in attitudes to make this whole thing work. Surely everybody agrees that is needed. I am going to be quite brief, because Mrs Cunningham said a lot of things that I had on my mind and I am grateful for her succinctness in that, because I tend to ramble on.
However, one of the things I have wrestled with and a lot of other people have wrestled with is the loopholes in this bill. I foresee some problem with the person who keeps changing jobs and changes his address. You have spoken about the reluctant employer, but this issue about people who keep jumping around still remains a problem with me. I just wonder whether with your expertise you see some positive way that we could close that loophole or do something to improve that.
Ms Buist: First of all, I think education is an important tool in this process. I started off the presentation talking about how we have to change our society's attitudes towards the economic imbalances which exist, of which this is a part. This is an important part of that economic imbalance, so I think education is vital.
Do not forget too that Bill 17 is only one of the ways to enforce support orders. There are still existing numerous ways to enforce support orders. Default hearings would still go on, for example, for those who are not employees or for those employees who constantly shift about and are not able to be caught within Bill 17.
I would reiterate that jail is an important final -- and I stress final -- threat which does carry some weight. It is certainly wielding a big stick, but for many people that is what is needed.
Mr Mills: So some sort of amendment to go in --
Ms Buist: That exists now, but judges are reluctant to do that, understandably so. I understand Mr Sorbara's point about a debtors' prison, but until those attitudes in our society begin to change, a big stick is needed.
Mr Fletcher: I just have two things. One is getting back to serving sentences and jail terms. The courts now are allowing people to serve their sentences on weekends so that there would not be a real loss of employment if that were the case.
Ms Buist: Yes, that is a good point.
Mr Fletcher: Something else -- you obviously read the amendment. If I were to want my child to have music lessons, there is nothing in the act that says I cannot just pay the music teacher. I do not have to go through the spouse, do I?
Ms Buist: You mean a debtor making additional payments on top of court-ordered spouse -- a payer, yes.
Mr Fletcher: Right. Let's say instead of going through the family, I --
Ms Buist: No, there is absolutely nothing stopping a payer from giving Christmas or birthday presents, making additional payments, buying running shoes when they are needed, and I am sure many women and children would greatly appreciate that.
Mr Fletcher: I would not have to go through the courts for that.
Ms Buist: Absolutely not. If you wanted it included in your support, if you wanted to pay more support -- and let me say there are not many people like that; we are talking about a teeny, teeny, tiny minority of men who want to pay more support than they are ordered to by the court -- if there are some of those generous souls and they want an income tax credit for that, which is really the reason you would want it written down, you would want that included as a deduction in your income tax, then by agreement with your spouse, and again in Ontario Court (Provincial Division), not necessarily with representation, you can amend the previous order. You can vary the original support order by agreement.
Mr Wessenger: I have just got three short questions. First of all, I gather you do only a family law practice. Is that true?
Ms Buist: No, that is one of my specialties.
Mr Wessenger Is that a major specialty?
Ms Buist: Yes.
Mr Wessenger: In your experience in that practice, in fact can most payers pay their support? Do they have that ability?
Ms Buist: That is a determination made by the court and/or by agreement of themselves at the time of the making of that original support order. That is done by a very strict needs and means test with full financial disclosure. So they either agree to it or a judge in his or her wisdom decides they can afford to pay.
Mr Wessenger: I know they have the ability at the time of the order, but I am just raising the question, when there is default, what is your experience in that regard?
Ms Buist: There are hundreds of reasons why men default in their support payments.
Mr Wessenger: Would you say that ability to pay is prevalent in many of the cases of default or most of the cases of default?
Ms Buist: They would say ability to pay.
Mr Wessenger: What about your experience?
Ms Buist: There are hundreds of reasons. They get involved with someone else who has children. They do not respect the system. They do not feel they have an obligation. Their spouse gets involved with someone else and they feel that person should be paying, not them. There are many, many reasons. I cannot give you one specific reason.
Mr Wessenger: Do you think this legislation will make payers take their obligations more seriously?
Ms Buist: If it is combined with a serious educational program, I think so, yes. It has that potential.
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Mr Wessenger: Should what is now SCOE and is to be the child and family support branch be given authority to vary payments? I do not mean legal authority to vary payments, but given the discretion to allow either less payments or more payments. Do you think that discretion should be given to SCOE?
Ms Buist: No.
Mr Wessenger: Would you explain why?
Ms Buist: Because SCOE is essentially designed to be a collection agency. It is not designed to be a judge.
Mr Wessenger: Fine, thank you.
Mr Carr: We have a little bit of time. I just have a quick question going back to the amounts. We talked about them yesterday with Ms Vickers from Dofasco. She was saying that 70% of the problems, and she is a payroll person, is because they cannot pay. I was wondering how we could get at those people. These are the ones that try to work out the ability to pay. They are robbing Peter to pay Paul and so on. How can we get to those people and get them to pay? Have you given any thought to that?
Ms Buist: They themselves, if they cannot pay, have an obligation to go back and vary that original support order to show that they no longer have the ability to pay the same amount. Again, a full hearing is done with full financial disclosure so that it can be seen that they truly cannot pay the same amount.
Mr Carr: So we go back to the courts then.
Ms Buist: Yes. I think that is the only way to do it. A decision has to be made as to the credibility of these people and as to their full financial circumstances, and I think the only way to do that is through a hearing with evidence. It is the obligation of the payer to start that proceeding if he is not able to pay.
You probably also are well aware that what usually happens is there is a default that goes on for about a year before SCOE catches up because of its current backlog. A default hearing is set and the payers rush off to a lawyer and commence variation proceedings and suddenly try to show they have not had an ability to pay for the last year. Again, there is not a responsible attitude towards these debts being taken by the payers.
Mr Carr: That is what the lady from Dofasco was saying, that what they will do, if it comes to crunch time, is they will not make the car payments to switch over. Basically the money is being pulled. I think you are right. I think the children have to come before car payments or MasterCard charge. What we need to do is make sure they get it, but the way the system is now is some of the people are trying to move money around.
My last question is this: I was just wondering if your group has had a chance to consult with the Attorney General on this bill.
Ms Buist: No, in fact with respect to other women's groups that I have spoken to, we have not been consulted and we would really like to be consulted.
CAMPBELL TILLIE
The Chair: We would like to now hear from Cam Tillie. Mr Tillie, you have approximately 15 minutes. Divide up that time however you wish. There may be many questions from the members of the committee as well.
Mr Tillie: Thank you. Before I get into what I wanted to say, Mr Fletcher brought up the point about jail and being able to serve time on weekends. For custodial parents who do not pay support, that is not true. You can be a robber, an attempted rapist, you can get out and serve your time on the weekends. A custodial parent cannot. I know; I speak from experience.
Non-custodial parents have no rights, so the obligation to pay support is a natural aversion. For instance, if the custodial parent decides to change the name of the child, the non-custodial parent can do nothing about it. The custodial parent can move and the only thing the noncustodial parent can do is follow at a cost to himself. In no way can the non-custodial parent be involved in the education of the child, other than if the custodial parent wants to let him.
Given that they have no rights in that regard, paying support becomes something more than just paying support. And, as you already spoke about, verification of the percentage of people not making support would probably prove that for the most part, most of them cannot afford to make the support payments.
The obligation of the court to prove that quite often is simply a judge sitting there making a decision that he has absolutely no idea about what he is talking. For instance, in London a judge gave me $150,000 I did not have, to prove I should pay support. The same judge put me in jail because I could not pay it. I did not pay it the day before, as Ms Buist suggested would happen.
The judges sit there and do not have any concept of what $25,000 to $45,000 a year income is like split between two families. It is something I guess they have never had to live with or since they became judges they get away from. I am not saying they did not live with it. A lot of judges do many, many things as lawyers and before they become lawyers where they can live on those things. Then they go beyond it and it seems that they forget what the past was like. Lawyers themselves care about only making the most or the best deal for their clients without regard to the opposing party or the child involved.
To pay support and it puts you on the basis of being on welfare gives you no reason to want to pay support.
The other thing I would like to say is that it seems to be a men versus women problem, as brought up by Ms Buist ahead of me. I try to stick to non-custodial and custodial parent. I think it can go either way, and I do not believe it is a women's lib issue.
Judges make the decisions for support based on the personality of the persons involved, their appearances and a few minutes of time regarding them in a courtroom, which can lead to misleading statements by lawyers and thinking that money makes or breaks the child's future. They rarely see or hear the child's viewpoint, which is very important. Also, it boils down to the frame of mind the judge is in at the moment of his decision.
There are obviously many people who will not pay, but there are many, many more who will not pay because the system has robbed them. The Attorney General, through SCOE, provides a lawyer to the custodial parent to collect support payments if they are not made. So there is absolutely no cost to the custodial parent to try to collect. I do not understand where the cost is to a custodial parent when SCOE provides the lawyer free of charge, under the guise that it is for the child when in fact it is for the custodial parent. The non-custodial parent, if he cannot afford a lawyer, must seek legal aid. Again, their ability to pay is reduced.
That is about all I have to say, other than if you want to ask any questions. I do not agree with your bill and I think it is more interference in the private lives of many, many people by just adding it to the system.
Mr Carr: As I said to some of the other people, I appreciate your coming in like this and dealing with your personal situation.
In your case, was it a case of your not being able to pay the judgement, the amount you were supposed to pay? The question I asked before to the person preceding you is that then you go back and show that you cannot pay. I was just wondering how you see that process. Is it that easy?
Mr Tillie: No, it is very difficult. I have a motion in front of the court in London now that I put in 17 January 1990 to vary the support payments. It has never been heard.
Mr Carr: January of last year?
Mr Tillie: Yes. It has still never been addressed because of the things they had come up with in between and they keep adjourning. Meanwhile, anything the custodial parent has asked for has been addressed.
Mr Carr: And you have paid during this time some money?
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Mr Tillie: I have not paid one penny. I have no intentions of paying until my problems are addressed. I make between $250 and $300 a week.
Mr Carr: Where do you work?
Mr Tillie: I run my own business, which is a small courier business, myself and one part-time employee. When this business started I had a staff of 30. The day the judge put me in jail was the end of my business.
Mr Mills: Thank you for coming here today. I realize it must be a great emotional stress for you to answer questions, but I really am interested in paragraph 8 of the submission you gave. You say, "There are obviously many people who simply will not pay, but there are many, many more who will not pay because the system has robbed them." How has it robbed them?
Mr Tillie: Okay, I will give you an example. My son's mother moved out of London, which now costs me money to follow her to see my son. My son is more bonded to me than his mother. I drive to the town of Ingersoll, which is 20 miles from London -- in Toronto I guess that is not a big deal, but it still costs me money -- 28 times a month. I asked the court for her to drive twice. They refused, yet she is the one that caused the problem. I wanted my son to take French and music -- not allowed. And the system backs her up. If you want fathers, or mothers for that matter, to pay support, then give them some rights, because you are only taking them away from them.
Mr Mills: It is just the use of the word "robbed" that I had difficulty with.
Mr Sorbara: I just have one question. I want to preface it with remarks arising from the previous witness, who was advocating the re-establishment of debtor prisons in Ontario. I noticed some enthusiasm for that from at least one of the NDP members, and I just think that is yet another example of the rise of right-wing politics in Canada, which is also reflected by militarism and absolute faith in the state, and I abhor it. I want to ask this witness how it was that he ended up in prison. What were the circumstances?
Mr Mills: On a point of order, Mr Chairman: I really do not think, in fairness to my colleague who is absent from the room, that he made any statement that he was in favour of debtors' prisons.
Mr Sorbara: If that is the case, I would like to hear him say that he will work as a politician to eliminate the imprisonment of debtors in this society. I would love to hear that. I will join him in that.
Mr Mills: You were out. I am just speaking on your behalf.
The Chair: Mr Sorbara is addressing you. You have the option to speak and answer the question.
Mr Sorbara: No, it is okay. He can answer that later. He does not have to do that now. I want to hear from the witness and his circumstances.
Mr Tillie: SCOE took me to court to make me pay. I told the judge I could not afford it. He looked at my financial statement and said, "You have $150,000." I did not have it and I do not know where he got it. He also said I should not have a vehicle, which I use for my business. Also, I had a $1,300 or $1,400 education fund for my son. He took it. He said I did not have the right to have it. So I went to jail.
Mr Sorbara: How long were you in prison?
Mr Tillie: Just two days.
Mr Sorbara: I think one of the things this committee needs to do is to look at alternatives to that sort of thing, and I think that could be a very common agenda. That is part of a rather unfortunate past in not only Canada but elsewhere. I do not have any other questions.
Mr Kwinter: I just want to follow this up for a minute because I am trying to figure out how the process works. They sent you to jail for two days --
Mr Tillie: He sent me to jail, to stay in for 60 days or until I paid. A friend of mine found out I was in jail and paid it for me. I still owe that man the money.
Mr Kwinter: I was trying to find out how you got out. Someone paid the money for you.
Mr Tillie: Yes.
The Chair: Mr Tillie, would you like to make any closing comments?
Mr Tillie: Only that Ms Buist said education would help. I think giving the non-custodial parents some rights would be of a lot more help. I think in today's society men are becoming far more involved in the children's lives, more than they did before. I know I am, so I think giving the man some rights rather than taking them away would make a difference.
The Chair: Thank you very much, Mr Tillie. Let me apologize, as well, for the placement of the mikes and the difficulty it offered you.
Mr Tillie: Yes, when I bend over, it is hard to breathe.
Mr Fletcher: I had a question. Have we dismissed this?
The Chair: Well, we did go through a rotation, Mr Fletcher.
Mr Fletcher: It was more or less on a clarification, as Mr Sorbara said something about me. I do not know.
The Chair: I see. Go ahead.
Mr Fletcher: As far as the debtors' prison is concerned, I am not sure what he was talking about. I was out of the room. I do not think -- you can check the records, I guess -- I said anything about the debtors' prison. It was not on my lips. It did not come out of my mouth.
Mr Kwinter: Mr Chairman, if I can clarify, what he really said when they talked about the debtors' prison, you raised that: "Well, you can serve on the weekends, so it's not a real problem. You can work during the week and go to jail on the weekends."
Mr Sorbara: Let me answer that.
The Chair: Excuse me, I think we have --
Mr Sorbara: Mr Chairman, if I might just explain --
The Chair: Mr Sorbara, I think we have explored this issue adequately. You have made your statement. Mr Fletcher has had his response. Mr Kwinter has spoken as well. I think that is sufficient.
Mr Sorbara: I would like to hear more from Mr Fletcher on this subject.
The Chair: I am sure you would, and I am sure you will have ample opportunity over the next several weeks.
Interjections.
The Chair: If we have the opportunity to, perhaps we can continue this conversation. In the meantime, we may have some witnesses waiting for us and I do not think we should tax their patience further. Terry Turner is next on the list. Is Terry Turner present? Mr, Miss, Ms Turner is not present. I would then suggest we move on to Mr Inwood, Kirby Inwood. Is Mr Inwood present? I heard earlier that he might not be able to attend. I would suggest at this point we can adjourn.
Mr Sorbara: Can I fight with Mr Fletcher now?
The Chair: You can certainly do so in the privacy of the hallway. We are recessed until 1:30 this afternoon. Thank you.
The committee recessed at 1148.
AFTERNOON SITTING
The committee resumed at 1332.
NATIONAL ASSOCIATION OF WOMEN AND THE LAW
The Chair: I would like to call us back to order and welcome Nicole Tellier from the National Association of Women and the Law. As you may know, we have approximately half an hour. We are even close to being on time. Divide that time however you wish. Typically it is half for your presentation and half for questions from the various caucuses.
Ms Tellier: By way of introduction, I am on the steering committee of the National Association of Women and the Law, but I am also a practising family law lawyer and therefore can bring to bear some personal experience with family law on this issue.
For those of you who do not know, the National Association of Women and the Law is a national non-profit feminist organization whose mandate is to promote women's equality through the law. We do that through research, public education and lobbying. We have lobbied on a variety of issues both at the federal and provincial level, including family law issues, tax reform and constitutional reform. We have a particular interest in this issue, because the overwhelming majority of recipients of support orders are women and children.
I would like to begin by addressing some general comments regarding the principles and the stated purpose of this legislation, and then I will address more specific concerns.
On a general note it is very refreshing to be in a room presenting on a bill that NAWL supports. All too frequently we are not happy with the current law, and we are very much in support of state-funded support enforcement and recognize the real need for this bill and the improvements it hopes to achieve in the current enforcement system. But I would like to make a few comments related to that issue.
I would gather that one of the other purposes is to alleviate the drain on human resources faced by the government in its current enforcement maintenance system. I would like to let the committee know that NAWL is aware that current employees are working under very difficult working conditions. It is my understanding that a number of them are part-time and in limited contractual positions, thereby making benefits unavailable to them. Their case load is horrendous and the training is somewhat limited.
Although NAWL's direct interest in this legislation is to make sure that the money is received by those who need it, we are concerned about the working conditions of the people who are in the enforcement branch, since they are predominantly women as well.
I would also like to point out it is NAWL's submission that support enforcement alone is not sufficient to eliminate the poverty of women and children. We urge this government to investigate and take positive steps through legislative reform and judicial education to address the issues of poverty. I am speaking now more specifically about the quantum of support orders. The bill before us will help us to enforce orders as they stand, but this is something that the government can deal with, under its current legislation, by strengthening preambles in the Children's Law Reform Act and the Family Law Act, through judicial education. If the stated purpose of the bill is to eliminate women's and children's poverty, then this bill must be seen as only one part of a larger program to do that.
I would also like to take this opportunity to remind the committee that the issues of support and access are not related in law. You may be hearing from other groups that will attempt to do this. The Ontario bar is completely unanimous in its position on Bill 124, was unanimous at the time that bill was tabled: NAWL opposes that bill. It is our view that the current laws, as they relate to access, are adequate to deal with the very few access problems that arise that cannot be dealt with through negotiation.
I would also like to add on that point that when the first enforcement bill came in there was an abundance of empirical data to support the need for state-funded enforcement programs. There is no such empirical data that is reliable as it relates to the issue of the need for access and access enforcement.
With respect to the bill specifically, I have in my brief a section entitled "Clause by Clause." I have not made comments on every clause because I only have concerns about a few of them and obviously I am limiting my comments to that.
I note that the definition of "income source" in subsection 1(3) does not allude to federal sources of funds. I do not know whether it might be appropriate to make it clear; I am thinking now of the Unemployment Insurance Commission. I am wondering whether it might not be prudent to amend or make an addition to the bill to make it clear how the enforcement of these funds are going to continue or if there are any changes in that area.
The much more difficult and problematic issue for me in this piece of legislation relates to subsection 3(1) and section 3d, section 3f and section 3g. These are the sections that deal with withdrawing, opting out and suspending. Now it may be that I am having difficulty in understanding the legislation, and if I as a lawyer am having difficulty understanding it, then perhaps it is in need of some clarification.
The difficulty I have is this: It would appear that you have set up two different tests. It would appear that under subsection 3(1) the ability to withdraw a support order, presumably at first instance, is permissive. It says, "A support or custody order may be filed with the director's office." In other words, the recipient spouse on filing the notice that is referred to in the next subsection can opt not to have the support order enforced. Yet later on in the legislation it is very clear that a support deduction order, which is clearly a different order from a support order, requires a suspension by court order on a motion. In other words a recipient who wishes to opt out or bring a motion to have a support deduction order suspended must do so at her expense upon motion and there must be a judicial determination.
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It is not clear to me why there are two different standards as it relates to the ability to withdraw or to opt out. The stated purpose says that there is no opting out, that it is mandatory, but it is pretty clear that when you are filing your original support order there is an ability not to have it forwarded to the support and custody orders enforcement branch.
Unless I have totally misunderstood the legislation, on the face of it there appears to be this different standard depending on when you wish to withdraw. Now this raises a serious policy concern because as I read the legislation, there are two points at which you may or may not be able to withdraw or get an order for suspension. I think it is important that the policy that informs this legislation be clear. Is this something that is mandatory or is it something that recipients may opt out of it they so wish? If you choose provisions which allow opting out, then I think they should be consistent.
I would also submit that there are important policy reasons why you might want to make it mandatory and I have set those out in the brief. From the perspective of the global objectives to be achieved by this bill, I think that a mandatory system will serve to normalize support deduction, which I believe is a clearly stated intention of this legislation. It will become normal. In time people will perceive it to be a normal course of events that support is deducted at source. If we have a completely mandatory system, then that aim will be achieved.
However, if there is to be some way of opting out, I am somewhat sceptical of the kind of judicial determination that is proposed. It will take up a considerable amount of court time and it will be at the expense of the party who wishes to withdraw.
The other important policy objective that might be achieved by making it mandatory is related to, for example, a woman being threatened. Her estranged male is someone who has been violent towards her and she feels intimidated and she is being threatened to opt out of this program. If she does not have the choice and she simply says: "Well, it's mandatory. It's out of my hands," there is some protection for her.
The other important policy objective is that I am concerned if someone chooses to be out of the system the support order later enters into arrears, and all the statistics suggest that this is quite likely to happen at some point during the time that the order is in effect. There may be a lag time, and this is a common problem with the current SCOE system, a considerable lag time in getting it back on stream.
To summarize then, I think there are important policy considerations. The committee should be clear about what they are and therefore the legislation should be consistent, and as I see it, it is not right now.
There are a couple of other areas where I would suggest amendments. There are, as a matter of course, orders that are made that are retroactive. This is going to pose a practical problem for the employer or the income source and you have not turned your minds to that issue, at least it does not appear that you have and I would suggest that you do. Otherwise, it will be very difficult for the employer since you have a formula that caps how much can be done on an ongoing order. If there is a retroactive order which effectively puts a support order into arrears as soon as it is issued, you are going to have a problem and you must address this.
The other practical problem that is not addressed that should be addressed is the cost-of-living adjustment. As I am sure you are aware, the Family Law Act provides a statutory cost-of-living adjustment and again, if the obligation is on the income source to deduct this amount and usually, the amount is not specified, it is simply a term of the order and presumably a term of the support deduction order that a cost-of-living adjustment will be made pursuant to some formula.
The employers are going to need guidance on this. They are not in the practice of phoning Statistics Canada and figuring this out. If that order is to be kept current and enforced, which is the objective of this legislation, then you are going to need clearer language in the bill as well as in the regulations.
Both those issues must be added to this bill if it is going to be administratively smooth and if you are going to avoid the complaints of the employers who are going to have to become involved in this process.
I would like to say on a positive note that I am extremely pleased with the amendments with respect to the ability to pursue other support enforcement remedies at the same time or at a later time. This was a badly needed amendment. Similarly I am extremely pleased with the ability to file a statutory declaration that effectively brings the writ of seizure and sale up to date as it relates to arrears.
Subject to any questions, that is all I have to say on the clause-by-clause analysis, but I would like to make a comment on the constitutionality of this legislation.
It may be that once this proposed legislation is enacted this government will be faced with Charter of Rights and Freedoms challenges. I would anticipate a section 7 charter challenge on the argument that section 7 includes a right to privacy of the individual and that support deduction orders are an infringement of that section 7 right which enshrines privacy. It leaves to be seen whether privacy is in fact a section 7 right. I would submit that section 7 can also be read to include a right to security of the person, and if that right is read in keeping with international human rights legislation, this would include the right to the basic necessaries of life such as food and housing.
Therefore, balancing the individual's privacy right as against the right of the collective of women and children to a basic standard of living, I believe that the rights of the collective must supersede and that it would withstand a charter challenge on that basis.
If it did not withstand a charter challenge on that basis, I am confident that it would withstand a charter challenge on the basis of section 1 of the charter. The purpose, the stated social objective of this bill is clearly important. The main attack would be on whether or not Bill 17 adopts the least intrusive means. There may be those who argue a support deduction order is not the least intrusive means, but I think the data and the problems we have seen under the previous system show that it has not worked and that more intrusive means such as these are necessary, and I believe constitutionally valid.
On closing then, I would like to recommend to the committee that you strengthen the preamble, that you adopt a consistent approach regarding the withdrawal of support orders and the opting-out and suspension provisions of the support deduction orders, that you include provisions for cost-of-living adjustments, that you include provisions for retroactive orders, and finally, I would recommend that the government take positive steps to deal with the issues of the inadequacy of the quantum of spousal and support orders, researching legislative reform and mandatory judicial education. Those are my submissions.
The Chair: We have a slight abridgement in our schedule this afternoon and we have gone over a touch. I would still like to have at least a quarter of an hour for questions for Ms Tellier. With the indulgence of the government caucus, Mr Wessenger had some responses. Mr Wessenger is the parliamentary assistant to the minister and is carrying the legislation.
Mr Wessenger: Yes, thank you for your presentation, Nicole. I would just like to make some comments on some of your points.
With respect to unemployment insurance and other federal payments, at the moment we cannot legally collect these amounts from federal government sources, but we are working on trying to get the agreement of the federal government to this, and if that agreement is obtained, then we will make the necessary changes in the legislation or regulations to cover that. But that is being worked on right now. We can presently get it by garnishment.
Ms Tellier: Yes, I realize you can get it by garnishment.
Mr Wessenger: With respect to the question of the two orders, there evidently are different rights attaching to the initial order as distinct from the support deduction order and those other rights of course are default hearings, garnishment, writs of seizure, so in fact the recipient can elect to remove that initial order and opt out of those rights being exercised by SCOE. But the intention is that they not be entitled to opt out of the support deduction except under very specific requirements. You would not of course have had the proposed amendment in front of you when you did your brief, but there is a proposed amendment to the opting out which requires the posting of four months' security, as well as the consent of both parties -- security in cash, I might add.
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Ms Tellier: I would suggest that if there is going to be a judicial determination at that point, that you leave it to the discretion of the trial judge. You have used the word "adequate" in that section and I would suggest "appropriate" as an amendment, because if someone has a perfect track record and the recipient wants to opt out, four months seems to me somewhat arbitrary. If it is going to require judicial determination to suspend anyway, then it should be fact specific. For many, four months is not going to be enough. For others, it may be too much. If it has to be before a court anyway, then I suggest you leave it to the trier of fact.
Mr Wessenger: In many cases, of course, there is often no track record with respect to this whole question because it is an initial situation.
Ms Tellier: Then you can delineate that. You can say that where there is no track record, this will be the minimum; otherwise, you will leave it to the court. That is one of the problems with this whole section. I am still not clear that your comments clarify for me the difference between the ability to withdraw your order as opposed to withdrawing your support deduction order, because if at first instance the recipient under subsection 3(1) opts out and does not file the support order with the director, then there is not going to be a support deduction order. That is all.
Mr Wessenger: No. In fact there will be a support deduction order issued right at the time of hearing. The support deduction order is issued at the time of hearing and is sent to the branch for enforcement right at the time of the initial court hearing. It is done by the court.
Ms Tellier: But the support order, as opposed to the support deduction order, is being withdrawn from the director. That does not seem to make sense to me.
Mr Wessenger: In fact, you are quite right. You could have the situation where the support deduction order would be filed initially --
Ms Tellier: But she has opted to withdraw the actual order.
Mr Wessenger: The actual order, yes, that certainly is --
Ms Tellier: That is the inconsistency from a policy perspective that I do not understand.
Mr Wessenger: I think the policy decision behind it was to make the support deduction basically universal and almost mandatory and to leave the other enforcement mechanisms optional. That is the policy basis of it.
Ms Tellier: Okay.
Mr Wessenger: One other comment about the retroactivity aspect: I do not know whether I understand your concern about this aspect, because first of all, if a retroactive order is made by the court, it can only be collected up to 50% from any pay of the payer and it would be collected over a period of time. I was wondering what your concern was with respect to that.
Ms Tellier: As it stands now, a judge will make an order and he or she will simply say, "It is retroactive to X date." Who then determines? Is this the director who determines? The order is issued and entered. The registrar makes sure that the form is filled out so you have a support deduction order. The support deduction order goes to the director, who in turn goes to the income source. Who is going to determine the mathematics if there is some leeway? Are you going to automatically go up to the maximum? Are you going to consider the retroactivity arrears? Because there are different remedies for arrears and it seems to me there is some discretion as to how you deal with arrears as opposed to ongoing support.
I also heard, by the by, that there were some amendments to your formula which I am not aware of, but I think what I am getting at is perhaps there needs to be a little bit of clarification as to how these orders are going to be administered.
Mr Wessenger: There is certainly not going to be a retroactive support deduction order. That would be obvious. The support deduction order is not going to be retroactive, even though the court order might be retroactive.
Ms Tellier: It cannot be, and you have a clause which deals with when it becomes effective, but from a practical perspective the support order awards retroactive support. So you have an employer faced with the immediate problem of an order that may back order six months. It is not technically arrears; it is --
Mr Wessenger: I think that is the way certainly the branch would consider it, as arrears. Any retroactive order would be deemed to be arrears.
Ms Tellier: So you think the legislation is very clear. The director and his lawyer are not going to have any problems with this.
Mr Wessenger: I am just saying that is the interpretation that is being given to it. Certainly, we can take a look at it again to make sure it is clear, but as far as ministry staff are concerned, they do not believe there is an ambiguity in that area.
Ms Tellier: As long as it is clear to the employer.
Mr Wessenger: One other aspect is, presently SCOE does give information to employees with respect to cost of living, so that will continue to be done so in the future.
Ms Tellier: No, I meant the employers.
Mr Wessenger: To the employers? Yes, it is presently being given to employers, the cost-of-living increases.
Ms Tellier: The employer has an order that may have a very complicated formula with respect to cost of living. It is then, it appears to me, the obligation of the employer to phone up Statistics Canada to try to make sense of that section in the family law, to determine what the COLA was for the last year, to make a record of it, then the next year when there is a new COLA. Are you saying that is all going to be done by the director?
Mr Wessenger: That is done now by the director. The director determines the amount and advises the employer.
The Chair: Are you finished, Mr Wessenger? Mr Sorbara. Again, with the indulgence of the committee, we have gone a little bit over time and probably will continue to.
Mr Sorbara: No, we have not gone over time at all, Mr Chair. We have had a very interesting discussion between the government and a witness before a parliamentary committee, a committee that is supposed to be made up of not government members -- they are here to assist us, not to question the witness. So as far as I am concerned, we have not gone over time at all. We are just beginning now for the committee members to question the witness.
The Chair: Mr Wessenger is a committee member as well, sir.
Mr Sorbara: He certainly is, but in this capacity, sitting in that chair with the assistance of policy advisers from the staff of the Ministry of the Attorney General, he is representing the government, not the committee. There is nothing wrong with that.
Ms Tellier: I am happy to hear your question, Mr Sorbara.
Mr Sorbara: Well, we are having a little battle about these things. I am sorry to have to take up your time with these little battles, but it is important to us. We only have a very limited time to ask the questions.
The Chair: Thank you. Mr Sorbara, please.
Mr Sorbara: You were among the first witnesses before this committee who both support the general thrust of these amendments and who seem to be arguing in favour of a more flexible approach to who should be caught up by the legislation and who should not be caught up. You seem to have a criticism of the four-month provision and you suggested I think that there should be more judicial discretion in determining who is in and who is out.
Ms Tellier: That is incorrect. I am afraid you missed the beginning of my submissions, where I addressed that issue, so perhaps I could clarify it.
Mr Sorbara: Good.
Ms Tellier: What I did say is that I thought, and it has been somewhat clarified, there was an inconsistency with respect to withdrawing the support order at first instance and opting out or seeking judicial determination in order to get a suspension order. I felt that the policy that was informing the legislation should be consistent and clear, and in fact on balance I would suggest that a mandatory approach be appropriate.
But vis-à-vis your comment about judicial discretion, I premised that comment with, if this section -- I believe it is 3d -- stands, and I was just advised of an amendment, I would suggest that rather than picking an arbitrary four months, yes, I would suggest that. If we are going to have that clause, then you may want to have minimum standards if there is no track record. But I believe that is something that should be left to judicial discretion, since the judge is going to have to decide whether (a) it is unconscionable -- and I did not even get into the difficulties with that one -- or (b) there is consent, and that has to be determined by a judge on the reading. The other thing the judge has to determine is, what security?, and I suggested that the word "adequate" be substituted with "appropriate."
Mr Sorbara: Okay. Let me see if I can hear your position clearly then. What is it? That you prefer an approach that brings everyone in?
Ms Tellier: Yes.
Mr Sorbara: Everyone in. So you would actually discard these avenues out, that is consent, judicial approval and security, or the other avenue out, that is unconscionability.
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Ms Tellier: No, that is not what I am saying. I am sorry if I have not made myself clear. Everybody is in, and if at some later point in time you want to get out, there is judicial determination.
Mr Sorbara: I am talking about --
Ms Tellier: Okay, that I do not have a problem. What I had a problem with was a different standard for getting the support order not in, but it has been explained to me that even if you withdraw the support order, there will automatically be a support deduction order, so that has satisfied my concerns about the mandatory approach. Have I answered --
Mr Sorbara: No, I am still not satisfied that I understand your views on this matter. That is to say, going in initially, the government's position is that virtually everyone should be drawn into the system by way of the automatic deduction system, into this net.
Ms Tellier: I support that.
Mr Sorbara: You support that. So they have two avenues out: One is unconscionability and the other is the posting of security with judicial consent and obviously the consent of the parties. How do you feel about that as an initial out?
Ms Tellier: I hope it does not clog the courts. I have some concerns from a very practical perspective, because I do practise family law and I would hate to see a lot of judges' time spent on this issue, so perhaps some guidelines as to security will make that easy. It is difficult to even get a 10-minute hearing on the quantum; if we are going to now clog the courts with whether we are in or we are out, we are not going to get fair hearings on quantum, and I am very concerned about the scarcity of judicial time as it relates to support as it is. So I have that concern, but I do think, on the security issue, that should be a matter of judicial discretion.
Mr Sorbara: So you would not favour greater discretion to allow those who need this enforcement technique to use it and those who do not need this enforcement technique to relinquish it or not be caught up by it.
My problem is this, let me be quite frank: It seems to me that this provision, although it is couched in dealing with child poverty, does two things. It alleviates the pressure on the branch to determine where to put into place a garnishment order, which in effect does the same thing -- it is an automatic deduction order by another step or a different legal avenue -- and it also allows the branch to, by way of bringing everyone in, protect itself from situations where it might be accused of not acting quickly enough to secure either a garnishment or some other enforcement technique. In other words, it is more of an administrative measure within the government to deal with moneys lost or resources ineffectively used. In fact the previous Attorney General who was working on this said, "We are doing this because our branch is not operating well with the kind of enforcement techniques that we have."
Ms Tellier: I would like to respond to that. That is an important comment. I said in the beginning that I thought there were two aims and I think they are both totally legitimate aims. One of the aims is to ensure that women and children get the money they need, and that is clearly -- you know, all the statistics that I am sure you are aware of point to a problem.
The second aim is an administrative aim, and I think it is a totally legitimate aim, that under the current system you have employees who are overworked. It is an impossible administrative burden, it is costing the taxpayer a fortune, it is not working well, and I think it is a totally legitimate aim to share that burden among employers and have the system that is being proposed here.
Mr Sorbara: I agree with you. My own personal dilemma and my political dilemma is, is it worth it to save those resources? Government could say, "We will double, triple or quadruple the budget of the branch and have a more effective administration under the present system so that we can have a garnishment in place like that, as soon as our computers say there has been a missed payment, and our computers tell us exactly where the debtor or the payer is." Is it worth it to save the money that we would have to spend on that kind of system to catch everyone in the net?
Ms Tellier: Yes, because no matter how efficient that system is, no matter how many employees, no matter how many computer terminals, you have court appearances, you have financial statements, you have all kinds of problems with the current system and this makes it nice and neat. From the minute the order is issued, that woman is going to get her money, and yes, it is worth it.
Mr Sorbara: I just want to suggest to you, from my experience in government, the idea that it is going to be that neat does not always work out in fact.
Ms Tellier: That is why I think it is important that the obligation on the income source is very clearly set out. I am sure you have heard from employers and you must get them on side and you must do everything within your powers to make sure that this is done. You know, they are complaining about now having to collect GST, and I am sure they are going to complain about this.
Mr Sorbara: Actually, the fact is that they are not complaining about this, and that is one of my concerns. If the chamber of commerce likes it, if the Canadian Federation of Independent Business likes it, if the major employer organizations like it, why do I like it? We generally do not agree on all these things.
Ms Tellier: Well, we all like it, that solves the problem.
Mr Carr: You mentioned about the clog in the court system and being a practitioner. We heard this morning that in order to get a support order changed because of circumstances, financial or whatever, it might take up to a year. Is that your understanding as well?
Ms Tellier: Are you talking about an application to vary an existing order or a material change in the circumstances?
Mr Carr: Yes, when you go before a judge to change the order, for whatever reason, circumstances change, you go on unemployment or whatever, it could take up to a year.
Ms Tellier: I practise in Toronto, but also in the districts. That may be true in Toronto, but there is a fairly summary manner by way of application to seek a variation and it does take some time, but it certainly need not take anywhere near that time.
Mr Carr: But places like Toronto and surrounding areas, the greater Toronto area.
Ms Tellier: I am in Peel, which is one of the busiest jurisdictions. No, that seems a little bit of an excessive amount of time. I think the government has done this to give us more judges. We can always use more judges.
Mr Sorbara: For the judges' sake.
Mr Carr: And the lawyers, I might add. But what would it take then, if it is not a year, to get something changed? If I went to the court, and because circumstances have changed in my financial position now and I am in the Peel area, and I want to change --
Ms Tellier: Normally what would happen, it could be issued the first appearance; you adjourn it for cross-examinations; you complete cross-examinations within a couple of weeks; you can get your transcript within a couple of weeks and you have the option to argue on the transcript, which means the whole thing can be completed within three months. If you choose to proceed by trial, then you are at the mercy of the trial list of your particular jurisdiction. But very frequently applications to various support orders are proceeded with on that summary fashion on transcript evidence alone; with the pre-trial, they settle.
Mr Carr: What percentage of the cases would that be? Half, would you say?
Ms Tellier: Drawing from my own practice, most never even get that far. All you need is to exchange the documents and see the figures and maybe have a pre-trial, and that is the end of it.
Mr Carr: But somebody could potentially be looking up to a year before it changes then, right?
Ms Tellier: Yes.
Mr Carr: Were you consulted with the Attorney General on Bill 17? The new Attorney General?
Ms Tellier: No, I was not and that is most unfortunate that I was not.
Mr Sorbara: It would have been a better bill had you been consulted.
Ms Tellier: We were consulted by the previous Attorney General on a regular basis, but I recognize that this is a new government and it may not know all the players. I am happy to be here now.
Mr Carr: I am sure the parliamentary assistant might have the phone number for you.
The Chair: I am sure note will be taken of that omission.
Mr Carr: Just to clarify again, sorry to go back on this point with the previous questioning, but your feeling was then that you would like to see as many people in this system as possible, rather than having two parties agree that, "No, we would like to opt out," for whatever reason. You would rather see more people come into the system and become mandatory.
Ms Tellier: I am saying there is a presumption it is mandatory. Everybody is in. If you want to opt out, this is how you do it.
Mr Carr: Through the judge.
Ms Tellier: Yes.
Mr Carr: Okay.
The Chair: I apologize to the government caucus. The government caucus time was already taken up. It was not clear, obviously, to all the opposition members, though. Thank you very much, Ms Tellier, very decent presentation.
Ms S. Murdock: We will take it up the next time.
ONTARIO ASSOCIATION OF INTERVAL AND TRANSITION HOUSES
The Chair: We have a presentation now from the Ontario Association of Interval and Transition Houses, commonly known as OAITH. I believe it is Ms Duggan and Ms Kotarski. Could you identify yourselves into the mike as well.
Ms Duggan: My name is Lisa Duggan and I am a front-line shelter worker in a shelter in Hamilton, and I am also a member of OAITH, which is the Ontario Association of Interval and Transition Houses.
Ms Kotarski: My name is Joan Kotarski. I am also a member of OAITH and I am a co-ordinator with Guelph-Wellington Women in Crisis in Guelph. We operate three programs: Marianne's Place, our shelter for abused women and their children, a rural women's shelter program and a sexual assault centre.
The Chair: As you were here before, you know we have half an hour. We will have to presume it is half an hour; we may be able to add a little extra time. Please divide your presentation along those lines and start when you are comfortable.
Ms Duggan: Just prior to going into our brief, I would like to introduce what OAITH is. OAITH is an 82-member provincial organization that advocates for abused women and their children, and OAITH believes that Bill 17 is necessary and much-needed legislation in the province of Ontario. We chose not to come here today and share heart-warming personal stories about women and their children, stories that are actually not heart-warming at all but tragedies, stories of tragedy and human rights offences. If we did that, we would be here more than half an hour, and we realize that. But we do feel that the statistics speak for themselves.
Single mothers and their children are the largest-increasing category of poor in this country, and we commend the NDP government for acknowledging their difficult financial circumstances by introducing this bill.
The National Council of Welfare report entitled Women in Poverty Revisited, which I hope all of you have read at some point, recommends on page 87, recommendation 19, that, "All provinces and territories should allocate the necessary resources to ensure the speedy enforcement of all spousal and child support obligations." We feel that the issue of support is very separate from the issue of access and custody, and I am concerned about the focus that has been placed on access in the presentations to this committee and by some committee members themselves, when clearly the purpose of the presentations is to address the issue of support in Bill 17.
I would like to remind you that we are talking about the best interests of children, not commodities that can be bought or sold or traded. Access is not something that can be exchanged for support. OAITH of course is prepared to discuss our position on access at some point in the future, and I would also refer you to our brief to the standing committee on social development at the Bill 124 hearings. If you are interested, a copy of that presentation can be obtained through the OAITH office, and we are prepared to be involved in any future consultations re access. However, like I said before, access is a very separate issue and that is not what we came here to discuss today.
We wish to talk about support and, as mentioned in our brief, in 1989 only 26% of Ontario support orders were being enforced, although 220 people were reported to be working in the Attorney General's support enforcement program at an annual cost of $13.9 million. Before the support enforcement program was begun by Ontario three years ago, only 15% of the orders were paid. Mr Scott, who was then the Attorney General, on 6 December 1989 said to Mr Laughren, the now Treasurer of Ontario, that, "We began in Ontario with an enormous disadvantage in the sense that 85% of the support orders that were made in the province, most of which involve young children, were not being honoured."
Clearly, the support enforcement program has helped to increase the payment in support orders; however, 90,000 children in Ontario are still affected by non-payment of court-ordered support representing $230 million in arrears payments. Now 97% of Ontario's orders are for men and 75% of those are for child support. These figures are evidence that action must be taken, and Bill 17 is a good first measure in ensuring that the non-custodial parent is accountable for maintaining financial responsibility for his children.
This legislation recognizes the importance of the need to enforce spousal and child support obligations by the non-custodial parent, yet there are some gaps that exist which do not address some of the special needs of abused women and their children. One out of four women in Canada is assaulted by her partner, and many abused women and their children try to escape and separate from their violent partners only to experience continued harassment, threats and financial control by the abuser. Once again, the statistics speak for themselves. If we are serious about confronting the problem of wife assault, then we must attempt to address the concerns of abused women and their children in our legislation.
On page 16 of Bill 17, subsection 3d(3), we feel it is necessary for the inclusion of an harassment clause. Without such a clause, abused women are left unprotected and vulnerable to the threats of their violent partner. This means that it is very probable that women could be coerced into writing a letter to the director or to a lawyer to go through the court system requesting the suspension of a support deduction order.
An harassment clause in the legislation would recognize that abusive men continue to exercise power and control over abused women and their children after separation, and this clause would offer some protection in guaranteeing the continuation of support payments on an ongoing basis. So OAITH recommends that the development of an harassment clause be done in consultation with abused women and their children and also their advocates.
Another section of Bill 17 which concerns abused women is found on page 6, subsection 3(8), and also on page 24, subsection 4(2). These clauses state that women who receive GWA or FBA have no choice but to pursue a support deduction order and women cannot request the withdrawal of any such order. OAITH believes that this lack of choice penalizes poor women but it is particularly damaging to assaulted women. The inclusion of the latter clauses do not acknowledge that abused women may have valid reasons for not pursuing a support deduction order.
It must be recognized that violent men use controlling tactics to maintain power over their partners. If an abused woman needs social assistance to escape the continued threats and abuse of her partner, the financial assistance must be provided without conditions. By forcing abused women to pursue support payments, their safety and their children's safety is jeopardized by the continued and forced connection to an abusive partner.
The fears of women of course are based on reality. In our presentation in November 1990, which was referred to yesterday, we presented to all MPPs OAITH's background lobby report, entitled Balance the Power, which you all probably have a copy of. It documents the names of many women who were murdered by their partners after separation. Most killings of assaulted women are the result of intentional life-threatening behaviour by batterers, and clearly access to abused women is an important factor in predicting lethality. If the batterer cannot find her, he cannot kill her. Therefore OAITH requests that the clause outlining mandatory pursuit of support deduction orders by women receiving GWA and FBA be removed from the legislation.
Ms Kotarski: In subsection 3c(3) it is stated that the director serves notice of a support deduction order to the income source. OAITH commends the government's recognition that it is important to involve the debtor's income source so that payments of support can be guaranteed. However, there needs to be a mechanism in the legislation that ensures that non-custodial parents who are self-employed or independently wealthy also pay the support deduction order.
In the legislation, the issue of confidentiality must also be addressed in more detail. Although we acknowledge that the legislation attempts to protect the confidentiality of the debtor, page 14, subsection 3c(17), there is no corresponding clause which protects the receiver of support. Any information that may assist the debtor in locating his partner must be kept confidential so that she and her children remain safe. This needs to be clearly outlined in Bill 17.
OAITH applauds section 12 on page 30, which holds the debtor responsible for the disposition or wasting of assets. This is often a tactic used by abusive men to control abused women. Based on the experience of abused women, OAITH would also recommend the inclusion of the vandalizing and/or destruction of assets.
OAITH also is pleased with section 12a on page 30, which incorporates the inclusion of consequences if there is any attempt to avoid support payments. We would like to see included in subsection 12a(1) that any financial fines obtained from the wilful contempt of process by the debtor and/or the destruction, disposition or wasting of assets be given to the receiver of support. The receiver of support should be compensated for loss of assets or wilful delay of process.
There are other laudable clauses included in Bill 17 that can be endorsed by OAITH. Page 12, subsections 3c(12), 3c(13) and 3c(15) acknowledge that the community plays an important role in ensuring the enforcement of support deduction orders. Subsection 3c(19) identifies that priority must be given to the payment of support. By including these clauses in the legislation, the government is recognizing that both the individual and society are responsible for the financial wellbeing of all women and their children.
In conclusion, Bill 17 is important and necessary legislation that attempts to address the feminization of poverty. Statistical evidence shows that children of single mothers are growing up poor. Among separated women, 47% with one child and 96% with three children live in poverty. Poverty encourages dependency on the incomes of violent partners and prevents women and their children from escaping abuse. Bill 17 offers abused women and their children some financial hope in breaking free from a violent partner, but the intent of the legislation will be considerably weakened without the following: inclusion of an harassment clause; mechanisms to ensure payment of support by self-employed or independently wealthy debtors; issue of confidentiality; the choice to defer a support deduction order for women receiving GWA and FBA; inclusion of "the destruction of assets" by the debtor; financial compensation for the receiver of support when assets are wasted or destroyed.
OAITH requests that the standing committee on administration of justice recommend that the NDP government include the latter suggestions in the body of Bill 17. By incorporating these concerns into the legislation, the government of Ontario is using the legislative process and is displaying the political will that is necessary to improve the daily lives of abused women and their children.
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Mr Elston: I have got a couple of questions. I was just asking some of the staff here if there was any prima facie case made for a woman and children who were in receipt of FBA, if they could just file that as initial prima facie of need for the hearing. I suppose that that would be an alternative. The real problem is having the people come face to face in the cross-examination rooms, having to go through all those paper contacts. If there was a means by which the separation of the two could be retained, would you see that as a useful way of still making sure that Community and Social Services got their repayments when there was ability to pay? Because without an order there is no payment required at the moment, right?
Ms Duggan: Are you asking specifically, for clarification?
Mr Elston: If they did not have to appear in cross-examination but merely presented evidence that they were considered eligible for FBA or GWA as part of the evidence, could that be seen to be sufficient to indicate an establishment of need, at least to the level of FBA or GWA received, so you would not be as concerned about the need to apply for support?
Ms Kotarski: I guess our concern comes primarily from our concern for the abused woman and her children and their safety.
Mr Elston: I appreciate that.
Ms Kotarski: So anything that can be done to increase her safety is what we would be for. I think we need to know what that would be --
Mr Elston: So as long as you could maintain confidentiality of location of settlement and removing the contact where there is abuse, an acceptable alternative might be found in those circumstances?
Ms Kotarski: That would be one step.
Ms Duggan: Specifically, the way that I think the legislation stands right now and the experience in terms of the GWA-FBA clause that we are referring to, the experience that abused women have right now is that support is deducted automatically from their cheque regardless of whether they received that or not.
Mr Elston: Yes, that is not helpful.
Ms Duggan: What we are asking is that women have the choice. Oftentimes what will happen is abusive men will use finances and economics as a way of controlling abused women. They say, "I will pay you X number of dollars, but this is what you are going to do for that," and what happens is that a woman has no choice but to actually go for support, for example if there was a no-access order and she wanted to leave the province and did not want support because of her physical safety.
I understand what your point is in terms of there being some way you guarantee that he cannot find her, and I think that certainly is acceptable. But I think what happens is abusive men will track abused women down. My point is that I think women have to be given the choice, and the way this legislation stands right now is that women do not have that choice to request the removal of a support deduction order.
Mr Elston: Just one other question: I note on your page 2, in the last paragraph talking about page 16, section 3d, the items really that give an opportunity to consent out of the enforcement or the deduction orders and things, is it your view that it would be better not to have those two means of not being included in the support deduction order?
Ms Duggan: No. I think it is important that women have a choice, once again. In terms of this clause, I think women should have the choice. But I do think it is necessary to look at the special needs of abused women in that they experience exceptional circumstances where partners will certainly threaten them and say, "You are going to write this letter." Many, many women have told us those experiences in terms of other situations where partners have threatened them and said, "This is what you're going to do or else this is what's going to happen." There may not ever be an incident of physical abuse, but I do think it is important to keep this in so the woman has a choice. I would like to see the inclusion of a harassment clause.
Mr Elston: Okay, but you would not feel so strongly about preventing the possibility of coercion or whatever around this extraction of the consent as to ask for it to be removed? In other words, there was a suggestion made by the previous presenter that if everybody was able to see their partner and say, "Listen, this is all mandatory. Don't come to me," then that would provide a lot more protection in some ways because it then is not the choice of the abused partner and it would not be seen that abuse would win the day, so to speak.
But as long as you have these provisions in here, I guess the point might very well be made that there is some incentive to try again to exert the force to get the desired result. I take it that you are kind of caught on the horns of a dilemma here like we are as legislators. You like to have people having the choice or the ability to choose, but you sure do not want to have the legislation ending up with some place where coercion and abuse find a home, for instance.
Ms Duggan: That is why I think a harassment clause would attempt to address that. I acknowledge your point that we are really sort of caught, do you make this mandatory or not? What I believe in is the promotion of women's choice, and what happens to women in abusive relationships is that those choices are taken away from them. In terms of this legislation, you can look at the argument if you make this mandatory, instead of putting in a harassment clause, and take the approach that you make this mandatory, I think what happens is the woman is put in a position where it is like the testify or prison argument, where if you do not testify you are going to go to jail.
The same sort of thing happens in terms of if she does not go for this, then she is not looking after the best interests of her children when she is also needing to look at the safety of herself and her children. It is a real dilemma, of course, that women are put in, but I think that that can be addressed in a way through a harassment clause, as opposed to making it mandatory and taking out women's choice altogether. But it is a dilemma.
Mr Elston: Presumably the other side of this, although you have not really done too much advertising for your organization, is to provide support forums for women in this situation so that they can in fact manage to make decisions in relative -- I should not say comfort, but at least in a more supportive area.
Ms Kotarski: Safety.
Mr Elston: Yes
Ms Duggan: We would be more than willing to do that if the government was willing to give us money.
Mr Elston: I am not here pushing that, but that also was an important aspect, I take it.
Ms Duggan: Yes.
Mr Kwinter: I want to apologize. I was not here for your total presentation. I would like, if you could, just to elaborate on exactly the same point that my colleague was making. When you say that it is very probable that women could be coerced into writing a letter to the director requesting the suspension of the support deduction order and this harassment clause would prevent that, could you tell me how you see this harassment clause working and how it is going to prevent it?
Ms Duggan: We knew you were going to ask us that question.
Ms Kotarski: I will try. I think it is something that we need to spend some more time looking at. We need to make sure that what we are after, our intent, is to provide safety for women and their children. So we need to be careful about the wording, as the legislation needs to be worded in a way that will do our intent. I am not here trying to get out of saying what I think a harassment clause should he
Mr Elston: But you are just here to advise, not to --
Ms Kotarski: Right. Thank you.
Ms Duggan: We feel it is not our job to draft legislation. Our job is to comment on legislation that is being drafted and to be involved in the consultation process around that legislation. But it is certainly your job to do that and our job to comment.
Mr Kwinter: If I could just pick up on that again for one minute, I am not asking you to draft the legislation. What I am trying to determine in my mind is you have a situation where a person who is getting support, who is being abused by a spouse, is potentially coerced into asking that that support order either be varied or dropped. You are saying that if we put some clause in, that could prevent that from happening. I just cannot, no matter how I think about it, come to grips with any kind of clause. If someone can be coerced into dropping their request for support or could be coerced into burying it, why could they not be coerced into ignoring the harassment clause? What is this harassment clause going to do?
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Ms Duggan: Nothing like a clause, or because you pick up the paper your partner does not hit you. Nothing is going to stop an abusive man from being abusive. Except I think there has to be recognition for safety of women and I think what that does is recognize the predicament that abused women are put into. It acknowledges that this is a possibility, that that may happen. Certainly an abusive man will be coercive whether there is a harassment clause in this legislation or not. But what it does do is acknowledge the special circumstances of abused women so they have some protection in the legislation. Abusive men will continue to be abusive, but what it does do is let them know it is going to be recognized, so there is an attempt to deal with that problem.
Mr Kwinter: It would seem to me that there is protection now in the common law. If you are being abused you can lay an assault charge. I am not trying to be difficult, but I just cannot see what possible benefit there is in a clause that says, "Thou shalt not harass," or "Thou shalt not abuse." If you could do that, we would have no abuse. That is not going to deter anybody, in my opinion. I was just trying to get a feel as to maybe you had some magic formula that would deal with this.
Ms Duggan: We can only tell you what abused women say. I wish I had a magic formula. Like I say to all the women in the shelter, if I had a magic formula I could give you that would take away this problem, I would do that. But if you look at, for example, the directive that was handed down by the Solicitor General saying that if an assault has occurred then charges must be laid, that certainly has helped in terms of more charges being laid and giving the message to abusive men that this abuse will not be tolerated by our society. Also, I think having a clause in the legislation offers some more protection to abused women. It lets abused women know they are being heard.
Ms Kotarski: I would also like to respond briefly. I think your questions are interesting ones.
One of the things that is problematic in our society is that we have not recognized the seriousness of abused women and children. It is a problem that truly we are starting to recognize more and more, and I think it is really important for all of you and all of society to find out more about it. It is a very difficult issue. It is not one that has easy solutions. That is part of why we hesitate to give you the magic formula, because we do not have it.
The Chair: The gentleman who was to present at 2:30 has not shown up, so we have the opportunity to have a more full questioning, as has occurred already. Mr Carr.
Mr Carr: I just wanted to say how much I am pleased with the fine work you do. I was at your event right after the election and had a chance -- in fact, I have a letter in to the minister now about a shelter in Oakville, because there is not one there, and you do such a fine job of lobbying I will maybe call on you for some guidance. We have a breakfast next Friday morning discussing it, and you may even be familiar with the people in Oakville trying to get the shelter. So I did want to say I really appreciate that.
During the divorces and separations -- you mentioned that about 25% of women are presently assaulted. Does it go up during that period? I would assume it would be higher with people separating. Do you have any statistics?
Ms Duggan: Can you repeat what statistic you are referring to?
Mr Carr: The one in four women who, I think, were assaulted. So in a divorce, do you have any idea what that goes up to?
Ms Kotarski: He is suggesting that there is more violence when separations --
Mr Carr: Is that true or would I be wrong about that?
Ms Kotarski: I think there is some truth to that. There is a study from the US, for instance, that documents the incidence of murder that occurs during that period of separation, that the danger to the women is very great at that particular time. That is just one study. We feel there is a danger to women at almost any time in the relationship, and it is very difficult to predict when it is more dangerous. It seems to me reasonable to think about a marriage breakdown, where the man is going to be losing that person he has had a lot of control over; I think that must be very devastating to him. I have no idea if that is true, but one of the things we see is that violence can escalate at that point and it can be very dangerous to women.
Ms Duggan: If you look at the statistics of women who have been murdered by their partner, many of those women have been murdered after separation. I think those statistics speak for themselves as well.
Mr Carr: There have been many reasons given for not paying. You are on the front lines and see it every day. There are quite a few reasons the spouse does not feel there is a responsibility to pay; there has been some talk that they cannot pay in some cases; and then you brought up the question of access.
I was wondering if, from your experience, you could help us with that, what you see as the major reasons. I know it is difficult, because one group comes in and says this is the reason and then somebody else, and of course the Attorney General's ministry does not keep statistics on that 75% or whatever. But being on the front line, do you see it every day? I was just wondering if you could give some guidance to this committee of what you see as the major reasons the children are not getting the money in their hands now.
Ms Kotarski: One of the reasons that often happens, particularly with abused women, and I may make a guess about other women as well, is that men do not feel they should pay, that men do not see that as their responsibility. There is some notion --
Mr Carr: Would that be a high percentage, would you say?
Ms Kotarski: I have no real way of knowing. That is just my guess at this point. One of the ways that is used is as punishment: If they do not give the women any money for the children, then somehow that may be a way of punishing her. They seem to be able to dissociate from the children, that they do not see that as punishing their children as well. I think we live in a patriarchal society and I think that is part of the difficulty, that men are given permission to make those choices that women are not given permission.
Ms Duggan: We also know our society is very connected to economics, very connected. The whole system is built on an economic system. When you look generally in our society, the more money you have the more power you have, so when abusive men hold that money, what they do is hold power and control over that woman; they could randomly make a decision to give money to women whenever they want to, and they have the power to do that and women have no mechanisms of getting that money.
Mr Carr: I guess the question I have, and I think I mentioned this earlier to the committee when you were not here -- I was astounded with the 75% we talked about, but when you get into it, it is not always that. I hope this is not the case; it is a very high percentage. I guess you would not have any statistics on that, if it is a real high percentage in total.
Ms Duggan: In terms of the number of women? Are you asking the number of women who do not get their money? Is that what you are asking?
Mr Carr: Just overall the reasons behind it; if, as you say, they do not see it as their responsibility. This, of course, is what we are wrestling with. There are so many different reasons.
Ms Kotarski: I think one of the things this legislation tries to do, which I think is laudable -- the previous speaker spoke about normalizing things so that it became a matter of course for men, primarily men who do the support orders, to take responsibility, that it is expected they will pay that money. I know it is really difficult, especially when we have serial monogamy. What I mean by that is that men will then marry other women and have children and have a family, and they have financial restraints and somehow the previous family is ignored. I think that is unfortunate. I think men need to be held accountable for that kind of action.
Mr Carr: Were you consulted by the new Attorney General on Bill 17 yet?
Ms Duggan: Specifically around this legislation, in terms of having mandatory support, we have mentioned that several times before in the past and we have again mentioned it in our Balance the Power booklet. So in terms of directly being consulted on Bill 17, we were not, but that is something we have mentioned many times in the past, how we felt this was necessary to have in place. But in terms of being consulted specifically around this, no.
Mr Carr: What about the killing of Bill 124? Were you consulted on that?
Ms Duggan: We are not here to talk about Bill 124, but if you want to talk to us about this afterwards --
Mr Carr: You brought it up in there and I just wondered if you were consulted on that as well.
Ms Duggan: We were not specifically consulted about Bill 124, no.
Mr Carr: Okay.
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Ms Duggan: Can I just add something to that? We were not consulted on Bill 124 by the previous government. However, we have on an ongoing basis, since Bill 124 passed the readings, met with several ministers and we met with the previous government telling it we were not happy with that bill and that we wanted it repealed. That is something we have been requesting on an ongoing basis, so yes, we were pleased when the NDP announced it was not going to push that through. So we were certainly there giving our opinions about that all the way along since the time that hearing happened.
Mr Carr: Thank you. I will call on your help for my Oakville situation, if I can.
The Chair: We have gone a little over time. We still have, I believe, five minutes or so left. Mrs Mathyssen.
Mrs Mathyssen: My question was answered in the course of the questions by the opposition.
Ms S. Murdock: I just wanted to make two comments, predominantly on what has been said by my colleagues, because it concerns me to put a harassment clause in when it has no effect. To me it would be a token, and I think the intent of the legislation itself is to protect women and children. Albeit I realize that the focus of your group is on abused women and children, the reality is that unless there were a penalty clause attached to the harassment clause it would be of no effect.
Ms Kotarski: It is a good idea.
Ms S. Murdock: But to finish that thought, even if you did put that in you would be repeating legislation that exists elsewhere in terms of assault or in terms of harassment, as Mr Kwinter has said. It is certainly something to think about and we will do that.
The other thing is that the case work I have done on FBA-GWA recipients, I was saying before other presenters that one of the arrangements we made with the Ministry of Community and Social Services office in Sudbury in my riding was because of the fact that Comsoc reduced the benefit cheque by the amount of the support order. Whether you had received that money or not was irrelevant, and that was putting a lot of women and children in hardship. So we made an arrangement with the local Comsoc and I recommended that it happen throughout the rest of the province, but I was only a constituency assistant at the time so I do not know if it happened. But in Sudbury what we did was that they would get an assignment after five days of not having received the payment from the support order, and after assignment was received for two consecutive months it was an automatic assignment.
So your suggestion of deferring or opting out of this piece of legislation -- the universality of it I like about Bill 17, so opting out does not please me. I am wondering if the payment order in terms of the name on the order is really being made to Comsoc; it is not being made to the spouse, if you get my meaning. The order in court would be made to the spouse, but the payment of the order, because Comsoc is paying the mother and children, could be made so that on the support deduction order it would be made payable to Comsoc. Would that satisfy your concern?
Ms Kotarski: I think it does partially, in that she would not be losing any money.
Ms S. Murdock: And he would not know where she was.
Ms Kotarski: If you could arrange for the confidentiality of that.
Ms S. Murdock: As you were speaking, the thought came to me that then it is even more enforced, that she is not doing it.
Ms Kotarski: That is true, but often men ignore that notion that it is not her. The other part we were concerned about with that legislation was that there seemed to be two different things happening, one for women who were not on GWA -- and one for women who were, and that seemed to be contradictory. We were just concerned that poor women will just be penalized one more step and not have some choices to make, and that was our concern there, that it seemed to be discriminating against poor people.
Ms Duggan: To add to this and pick up on something you were talking about, as you said, this is something that happened in Sudbury, and what we see across the province are discretionary things happening from area to area, office to office, worker to worker. I think that is the real difficulty with your suggestion. There is so much discretion and they have so much power. Then what happens if there is a problem? What mechanisms are in place to deal with that if that is the case?
Ms S. Murdock: Yes. I know Comsoc makes it mandatory for you to proceed on a support order; you do not have any option. If you want benefits from Comsoc, you proceed whether you like it or not, no matter how frightened you are. There does not seem to be much leeway there, so that is another area probably we can look at. Thank you.
The Chair: We are out of time. Thank you very much, Ms Duggan.
Ms Duggan: We would like to thank you very much for giving us the time to present.
SHIRLEY SUNDBERG
The Chair: Could Shirley Sundberg please come forward? Mrs Sundberg, typically for an individual there are some 15 minutes of time for presentation. I am sure the clerk told you about that. You have that full time, possibly a few minutes more or less, to use as you wish, to fill with your presentation or to simply make a few brief statements and allow for questions. Please proceed when you are comfortable.
Mrs Sundberg: I would like to thank the committee for this opportunity to speak on the amendment of Bill 17. First, I will give you some background that I personally have on the subject of child support.
In 1969 I was a deserted wife, left with a three-month-old baby and a month pregnant with our second child. Later there was a court hearing, and a court order for child support was awarded for $35 per week for the two children. Attempts to collect this proved to be futile even after numerous show-cause hearings were held. I was then forced to seek government assistance as my wages were not enough to support us, and arrears for child support mounted through the years to a total of $16,000 owed to the government. Seasonal work was the excuse mainly used for defaulting on these payments.
Difficulties I faced trying to collect child support were: having to locate the other parent to serve court papers; complaints of seasonal work; arrears mounting for many years; cheques sent that were late, NSF, unsigned, wrong year, and being sent from out of town they were held 10 days at the bank; lawyers' fees were paid for liens on properties and the liens were not paid when the properties were sold; fees then were paid to garnishee wages.
Today my court order is registered with the support and custody enforcement branch.
To summarize the outcome, collecting child support is very time-consuming and costly. It is called child support, but the children have no say in the outcome and often become a pawn in the court battle or battles. To deduct these payments from the paycheques would eliminate many problems.
My recommendations for this bill are: This bill will decrease arrears owed and mounting up, plus save court time. It will decrease tardiness in receiving the payment and be more consistent. It will define if a job is truly seasonal and for how long. Children of a first marriage or relationship will have priority for the first time. It will decrease persons shirking their responsibilities by moving or remarrying. This bill may decrease the number of women forced to seek government assistance. Non-payment will no longer be a tool used as another form of abuse. By taking the payment out of the paycheque this will take the control away from the abuser. Finally, children will not be denied the necessities of life or the extras they should have because the cheque is in the mail and usually does not arrive.
Mrs Cunningham: Thank you for having the courage to come before this committee and tell your story. We appreciate it. And thank you for assisting us in some of our deliberations. I am not sure, given what you have described, that you would ever have any confidence in any dads after --
Mrs Sundberg: I am remarried.
Mrs Cunningham: Are you? So you do?
Mrs Sundberg: Yes.
Mrs Cunningham: That is great.
Mrs Sundberg: I was on my own for 10 years, though, the first 10 years when my children were growing up.
Mrs Cunningham: It sounds like a fairly happy ending for you and your children, anyway.
Mrs Sundberg: Yes.
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Mrs Cunningham: That is great. We are thinking that there probably is another sector of society here that maybe made the payments. One of the deliberations and concerns of the committee, or concerns during the deliberations, has been that some of the witnesses have told us they do pay support and have paid support and do not like the idea of their wages having to be garnisheed or this having to be paid out of their paycheques. They feel it is an invasion of privacy and unnecessary bureaucracy. I wonder if you have any thoughts on that, even given what you have been through.
Mrs Sundberg: I feel with unless it is mandatory, no, there are still going to be problems with collecting support. If they realize it is mandatory when going to court and the order is established, then I think it will be straightforward from there. There are no surprises after it comes straight out of the paycheque. Then you are not having to worry about finding out where they are living, where they are working and starting all over again in trying to get that order enforced.
Mrs Cunningham: You would still have to pretty well know where they live, though, and where they are working, because you would not know if anything had changed and whether there had been voluntary information given on their part, either because of a change of job or perhaps an increase in their wages. That would be part of the order, would it not? They would have to have their name and address on it.
Mrs Sundberg: I think so.
It is difficult, though, when arrears mount up. As in my case with the arrears mounting up to $16,000, my ex-husband at that time -- he is working at the same job he worked at in 1969. He could not pay child support for 10 years, but he is able to support three new children and a wife on the same job. It was only after 10 years that mother's allowance wrote $16,000 off because of his complaints, "I cannot pay it." I think when it gets to that point, though, that is a lot of money and I think that is where you see the write-offs, and if the women are doing their part by going to court and trying to get these arrears, I think the government and the rest can do theirs too.
Mrs Cunningham: Your view basically is that you have not had a lot of experience with people who do pay up, so my question probably is not as relevant for yourself, but I do appreciate what you have told us.
Mr Mills: I would like to make just a comment about this. My thrust was the previous person who was here and I have missed that. I would just like to say how glad I am that you have come here today and to listen to you. I live myself quite near Lindsay and I realize the tremendous effort it is to drive down here to explain to this committee your feelings of this, even though now you are now out of the bind that you were in, and you are, so to speak, living happily ever after. I think it says a lot to the government and its bill that you took the time out from your life to come here and endorse what we are trying to do, and I appreciate that and thank you.
Mrs Sundberg: Thank you.
Mr Elston: A couple of short questions: You were here for the last couple of presenters, so you heard some of our discussion. In terms of the issue, you have expressed your preference in terms of the mandatory nature of the order. You obviously have gone through practically a situation where somebody might come and say: "Waive this order being mandatory. Write a letter of consent." What is your feeling of having that avenue open? Are you a supporter of it or do you have any opinion? You are free not to have an opinion. I just felt that maybe you might be able to think about a person in real life having to consider somebody coming to her and saying, "I do not want to be enrolled in this."
Mrs Sundberg: Do you mean harassed?
Mr Elston: Perhaps, yes.
Mrs Sundberg: My situation was an abusive one too. I am on a board today and we are establishing a shelter in Lindsay. I think it is just going through shortly. So I have been involved with groups in that area too. I feel if it is mandatory, then it is just like having the police lay the charges now. The wife does not have to do it or the partner, or the woman, and that responsibility is taken away from them.
Mr Elston: But with the opting-out clauses, there are two particular provisions that could be used: One is consent, where the two parties consent, and it is that issue I would like your views on because it takes two under the circumstances of the second opting out. The other one is that the judge finds it unconscionable to register the support deduction order or at least to issue it. Have you any views on the fact that a person could be asked by the other partner to consent?
Mrs Sundberg: What you mean is so it will not be taken out of their paycheque?
Mr Elston: That is right.
Mrs Sundberg: I think if it is agreeable and there is no harassment or anything like that, if the person is willing to pay, yes, but just how far are you going to let it go if it slips into arrears? I think that is another area you have to look at, and then it does take longer to enforce again.
BERT FLARITY
The Chair: Could we hear from Bert Flarity, please.
Mr Flarity: You will have to excuse me. I just came here directly from work.
The Chair: You have attended a couple of these. Basically there is 15 minutes time. Divide that time as you wish, Mr Flarity, but it is still your time, so please feel free to go ahead as soon as you are comfortable. Pour yourself a glass of water if there is a glass there.
Mr Sorbara: Or just drink it out of the jug.
The Chair: It looks to me like the clerk is going to secure a glass of water for you, sir. Go ahead when you are comfortable.
Mr Flarity: You will have to excuse me, I am not really sure of parliamentary procedures and public speaking, but I will try to do my best
Interjection.
Mr Flarity: Well, I am in the same boat then. I brought in some copies, just a few briefs. I sat here and I listened to a few people, how they made comments of abuse and went many years of going without support. I would just like to stress the fact that I did pay support for my children over a period of years when I was separated until, as you can see in point one, I got financial strain versus financial gain.
If you do not mind me using layman's terms, my ex-wife is living with the gentleman she left me for way back when. They are doing quite well for themselves, own the house I once bought, own a house that they bought together, own a condominium, rent out their basement. They are doing quite well.
I have been remarried since then and am raising more children and finding it a little tough. I kept paying my support faithfully. It was not until about three or four months ago, I guess now, that I put a stop to it because I had a phone call from the fellow saying he wants to adopt my children. Being the human that I am, I am saying no. He says the only way he will stop me from having to pay child support and take it to court so I can get off of it is for me to give them the right to adopt my children.
Of course, I just said, "Forget it." Then I find out about the fact of them owning the house and the condominium and doing quite well, which I do not knock them for, all the power to them. But I said that my child support was not going towards my children. It is going towards their capital gain, so I refused to pay it. I abruptly stopped it at that point.
Then I found that when I first separated from my wife, I was going through the fact of paying my mortgage, paying the household bills, putting groceries towards the house, putting everything in while this fellow was living there scot-free. Their choice: I cannot argue about that, whatever way they want.
But I found it put me farther in the hole, which made the courts come after me, after the rulings in the courts that I paid child support. They garnisheed my wages when I once worked for the government and I was in arrears and I had to pay. I had to live off $150 a month at that time, which I found very strenuous. I finally got it all caught up. I finally paid whatever had to be paid until, like I say, three or four months ago, and then I brought it to a stop again.
I find now, if I may say so, that if you pass the law of Bill 17, it only forces me -- you have three categories of workers. You have your white collar, you have your blue collar and you have people like myself who work in construction. If they go through and pass the law of Bill 17 and they garnishee your wages, I can be replaced in a minute and I will be out of work.
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My wife now, due to personal reasons, is unable to work, so if you put me out of work, as well you leave no choice but to put another family on welfare. Which way do you look at it, people keep getting ahead by my wages being garnisheed or other people going to the government for assistance? I am here to say I really do not know what it is all about. I would like to find out and see what kind of assistance the people who are being pressured can have, as well as the people who are doing quite well -- no disrespect to women who have been hurt over the years, with children.
I have really no more to say.
Mr Elston: The interesting problem is this, just for your benefit, you know that this will mean there will be at-source deduction. Your paycheque will be deducted, just to advise you a little bit about what this bill is about, the idea being that pursuit of other remedies has caused a lot of consumption of resources by, actually, both former members of the marriage, of the union. This is seen as a better, quicker way of dealing with support payments and in fact probably one that removes the need to be always going back to a forum where you come face to face with the difficulties.
My concern is this: Were you in a position where there could have been a consent, for instance, between you and your spouse that this not be done at source, at one time?
Mr Flarity: Are you talking about the support payment itself?
Mr Elston: Yes. You paid all the time?
Mr Flarity: Yes. I paid it right through. It has been four years actually. My lawyer versus her lawyer had an agreement outside of court as to what I should pay each month, and when that came to agreement I started paying my payments, and like I say, I was in arrears until the court settlement and I had it all paid up. We had no dispute on that until I found out that my money was not going towards raising my children; it was going to their profits on buying real estate and I said: "That's enough. I'm not going to do it any more." I only felt it was fair. If my kids were getting the money, I had no problem with paying.
Mr Elston: The consideration in your mind is that the children are not receiving the money.
Mr Flarity: My children are not suffering. My children, if you have to know my family history background, are doing quite well for themselves. They probably have more money in the bank than I have. They will never suffer, from my side as well as her side, but the money that is going in, it is not like saying the children need clothing, the children need groceries, nothing like that. It is just money that is going to profit them; that is all it is. So like I say, it is not the lack of interest in the children, by no means.
Mr Elston: Can I ask, you now have a family of three that you are supporting?
Mr Flarity: I have three children from my ex-wife and two with the new wife.
Mr Elston: So there are five altogether.
Mr Flarity: Five in total, yes.
Mr Elston: You are supporting them on a construction worker's wage?
Mr Flarity: Yes, I am. I make a good salary, but I am an apprentice right now and I have to finish my term as an apprentice due to the late start in life. I have trade school to go to. Then you go on unemployment. You are no longer being paid every week, which is another strain, but that is my benefit, to better myself in life, to get ahead. I knew all these agreements. When I started paying support, I knew I had to start going to school. I knew I was going to go on unemployment. But I paid it anyway. I struggled one way or another and made the payments, until I found out what actually was happening and then I brought it to a stop.
Mr Elston: Had you thought of actually applying to have your order varied, rather than just stopping the payments?
Mr Flarity: How do you mean?
Mr Elston: Go back to court and say, "Reduce the payments.
Mr Flarity: Yes, I spoke to a lawyer personally and I asked him about taking it to court, either to lessen the payments or stop the payments or arrange something where I could start paying later on in life, and his words, more or less, were "You don't have a chance. We will fight it gladly" -- pay him whatever he wants and if I lose, I will.
Mr Elston: That was my next question. Did he ask for a retainer?
Mr Flarity: Yes, exactly, of course. I would not be able to go under -- what do they call it?
Mr Elston: Legal aid.
Mr Flarity: I work so I would have to pay.
Mr Elston: So you really find the system totally frustrating for you at the moment.
Mr Flarity: Oh, yes.
Mr Elston: Is there any issue at stake with respect to access or any of those others?
Mr Flarity: Access in which way -- of seeing the children?
Mr Elston: Seeing the children.
Mr Flarity: I have the right to see the children one night through the week and every second weekend.
Mr Elston: So everything really, until about three months ago, was moving as well as can be expected when you go through a family breakup. I am not saying that it is easy, but you had really mutually made arrangements that were working and that you had maintained in a good manner.
Mr Flarity: I did not insist on seeing my children, nor did I follow through with their once-a-week type of thing, or every second weekend. I worked around her schedule, my ex-wife's schedule, where my children were in hockey or whatever the case may be and that was not a good night, so we did not argue over the fact, even though it was in writing, "You have this night and this weekend," type of thing.
We had a mutual agreement, although every time I went to pick the children up my ex-wife had a mouthful to say to me and the children always said: "What's the matter with Mommy? Why is she always mad when she sees you?" That is where I started feeling the pressure. Every time I picked my children up I was putting strain on them. Every time Daddy is around, there is going to be a fight at home. I could see mentally it was bothering them, so I kind of slipped away from the once every two weeks, to maybe once a month type of thing and slowed it down a bit.
Then I started thinking that was what my wife wanted. My ex-wife wanted me to do this so I started picking them up again and then it slacked off again and there was just no schedule to follow, so to speak. It was just there whenever it happened, so to speak, in seeing them, but she never really denied me the right to see my children.
Mr Elston: Do you think this bill will affect the current status of your relationship?
Mr Flarity: My livelihood, definitely, guaranteed.
Mr Sorbara: Let me just say, first of all, Mr Flarity, that you are as competent a witness as any we have had here at the committee and if you ever want to come and testify about some other bill you should feel comfortable and welcome to do so.
The one question that I had was about a comment that you made at the end of your remarks, and that is that there were three type of employees, if I recall, and you suggested that if this bill goes through you would not be working. Are you suggesting that you and other workers you know, if their salaries are going to be automatically attached in this way, will quit their jobs or it will not be worth it to work or what? What were you getting at there?
Mr Flarity: If I may, white-collar worker, I am not sure about; I have never had an office job. I have had a government job, which I considered blue-collar. I worked for the Scarborough school board for many years. When my wages were garnisheed at that time because I was in arrears with my child support, they agreed to pay it and it just automatically came off my pay. But now, what I say, there is the third breed of workers, construction workers, where companies have in my field -- I am a plumber -- so many guys who are waiting to come in and take that job, that if you phoned up my company and said, "We now have this person on record. We'd like to garnishee his wages," one way or another I will be out of a job within a week and somebody else will be in to take my place, even though it might be law.
Mr Sorbara: Even though it might be against the law?
Mr Flarity: Sure, and you know yourself, if you try to fight the system, saying, "Hey, I think they just laid me off or fired me because they garnisheed my wages," you would have no way of proving it.
Mr Sorbara: That is exactly the argument that the incumbent Minister of Labour used in respect of the provision that is in this bill, when he said those sorts of provisions are not worth the powder to blow them to hell. The minister has just put that same sort of provision in this bill. I would encourage his governmental and parliamentary colleagues to talk to him about that, because at least in the view of the current Minister of Labour, Mr Flarity is absolutely right. The automatic deduction order comes in and suddenly an employee finds he has fewer hours or he has bad hours or he has no hours at all. That is the result the Minister of Labour said would result with this sort of provision in Bill 124 and now he has put it in Bill 17. I think we have something to worry about there and I think testimony --
Mr Flarity: Pardon me. Excuse my saying so, but there also is the fact that if due to whatever reason my health does not hold out and I come down with the flu or pneumonia or whatever and I am off for any period of time, a day, a week, two weeks, I am automatically not paid. In construction they do not have sick days like government jobs and stuff like that. Now what happens if my wages are garnisheed and I am not at work due to health? They cannot take it out of my company if it is not there.
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Mr Sorbara: I think, as I understand it, and the officials will correct me if I am wrong, that you are in arrears, but if and when you start being paid again the same deductions are made as were made before.
Mr Flarity: But there were no deductions, only the fact of being in arrears.
Mr Sorbara: The regular deductions: Under this new bill, so long as you are being paid, an amount must be deducted in respect of the support payment. If you are not being paid, if you are laid off or if there is no work on a particular week or if you are sick, you just fall into arrears.
Mr Flarity: You keep going into arrears.
Mr Sorbara: Yes, you keep going into arrears.
Mr Flarity: Which is kind of sad, is it not?
Mr Sorbara: Yes, I guess it is.
Mrs Cunningham: Good point. It is kind of sad. People who have been here before, both employers who are responsible for administering payrolls and human resource people who advise -- in fact a full-time human resource person from Dofasco was here and when we asked her why people were not paying what they should be paying, she said because they did not basically have the money. When we asked what the record was on what would happen, she did agree that many would not work, they would just quit.
Maybe it is what I get in my constituency office and some of my colleagues, but those are the stories that we hear a lot about, unfortunately. What we really had hoped to do was to talk about how we can make things better. I have before me a letter describing the SCOE office in one of our municipalities in southwest Ontario, which will not be named, but the Chairman has the letter as well.
Mr Sorbara: Is it London?
Mrs Cunningham: Actually, it is not. You would not get that from my office.
Mr Sorbara: Windsor?
Mr Elston: Sarnia.
Mrs Cunningham: It is in your package as well.
Mr Elston: Why are you so secretive?
Mrs Cunningham: It is from Thamesville.
Mr Elston: Oh, from Thamesville.
Mrs Cunningham: You know, there are little tests in here to see if some people are awake, so it works. Did you have to deal with the SCOE office at all?
Mr Flarity: Yes.
Mrs Cunningham: Were you fairly happy with how it worked? This is not a leading question, but I am wondering if this is more the norm, the complaints that we have here.
Mr Flarity: I would say, yes, I was very happy at the time, due to the fact that I agreed on everything that should be done until it came to the fact -- I keep repeating myself -- of their gain. Then I disagreed with everything. But, yes, I agreed with SCOE at the time.
Mrs Cunningham: So the SCOE office was helpful in collecting from you -- not from your employer but from you -- the amount of money that was necessary to send on to your family?
Mr Flarity: When I worked the government job, I had my wages garnisheed, as I said, and it continued that way until I quit the school board. Then I went out in the construction to finish my apprenticeship, to get my trade. When I did that, automatically it stopped the garnishee on my wages with the school board.
But because I was out in construction, they said to us, "If you send us 12 post-dated cheques and guarantee the money is there every month, it'll be all right." So that is the way I did it. I sent them 12 post-dated cheques, made sure the money was in the bank every month, until something like three or four months ago, and then I just stopped it.
So we had all agreement to everything. I spoke to some lady on the phone -- I could not remember her name -- she was quite helpful and kept telling me what I should do and how to arrange it and all that. I had no problem with it.
Mrs Cunningham: You happen to be one of the people who would not necessarily have to have your wages garnisheed or a deduction from your wages, because you had the arrangement with the office and it worked. You are also somebody who has seasonal employment, or you could be somebody, I suppose, who was self-employed --
Mr Flarity: Very much so, yes.
Mrs Cunningham: -- so finding the jobs to earn the money on your own. The last statement you made before the questioning began, the same one that Mr Sorbara was talking about, is that you could in fact find yourself unemployed.
Mr Flarity: Instantly. No question in my mind.
Mrs Cunningham: It is interesting to hear you say that. I happen to share your views. Mr Elston then pursued it -- I think he did -- it might have been Sorbara.
Mr Elston: We all look alike.
Mr Sorbara: We are all the same.
Mrs Cunningham: Did you hear that, Mr Chairman?
You are actually one of the more articulate members in this room today, so never be ashamed of coming and speaking.
Mr Flarity: No, I have no shame.
Mrs Cunningham: So many people are being nervous about it. So many people like yourself would love to have your courage.
Mr Flarity: Who should be nervous? It is fact. It is life.
Mrs Cunningham: It is great to see you here, because you are talking about the real world, and in my work in politics I only get it at my constituency office. I often do not get it in this building, I must tell you that. So I will say that we are very concerned and I am glad to hear you say that this 39L, which is the part that says, "No employer or person acting on behalf of an employer shall" -- and this is to somebody who is required because of a court order or garnishment to pay to a third party any amount owing, so this is the garnishee. They cannot dismiss or threaten to dismiss an employee -- this is the business. This is this law that we are looking at now.
Mr Flarity: It does not mean anything.
Mrs Cunningham: They cannot discipline or suspend an employee, they cannot impose any penalty on an employee and they cannot intimidate or coerce an employee.
Mr Flarity: This is true, but when the building is finished, they can lay him off and not rehire him. The job I am on right now is just up the street. I am building an 18-storey building, to be completed in July. Now if this bill gets passed and my wages get garnisheed, come July I am laid off. Who else is going to look at it? "This guy is going to come to us and we have to put a garnishee on his wages."
Mrs Cunningham: One more thing for them to do, right?
Mr Flarity: Exactly.
The Vice-Chair: With the committee's indulgence, I did not notice any members from the government side with their hands up to ask a question, but there is somebody. Mrs Mathyssen, please.
Mrs Mathyssen: I would like to thank you for coming, sir. I wonder, have you returned to the court to have the financial situation of your ex-spouse and you reviewed? The support that you are paying is onerous. Have you taken steps to have it reviewed?
Mr Flarity: Let me see if I can clarify myself. The amount I was paying I had no disagreement with and I would gladly keep paying it. What I did not like was the fact is they were using my money for their gain. It was not my money to raise my children.
Mrs Mathyssen: But what I mean is, if they are in a better financial situation than you, could you have it reviewed? You also indicated that you had some difficulties in your current situation. I wondered if you had taken steps to have it reviewed so that you did not have to suffer unduly.
Mr Flarity: Like I made a point of, when I had to go to trade school -- and it is coming up again, I will have to go again -- I struggled and I did what I had to do to make the payments because I was afraid of getting called into court and because I was in arrears, I was going to end up getting bumped up and she would fight me for more money and every horror story you can possibly hear, and I am sure you have heard them all in here. So I just kept doing what I had to do until the anger hit. So, to answer your question, no, I did not go to see about changing it at all. I just did what I had to do to pay it.
Mr Mills: I appreciate your being here and putting a new perspective on this issue, which I must honestly say I had not really thought of or examined. However, having said that, I would imagine that Statistics Canada or somebody comes out with a figure that would designate child support for a child.
Mr Flarity: Yes.
Mr Mills: Now, your perception I understand is, "They've got a lot of money and they don't need mine," but I feel, nevertheless, that the children are yours. You have had the opportunity and you do not want them adopted, thereby relieving you of the financial obligation, notwithstanding the fact that if they were adopted, you could get a court injunction to still permit you visitation. Just because they are adopted does not mean you never see them again. I do not know if you know that.
So I have difficulty in you saying, "Well, they've got a condominium, they've got this, they've got that," when the bottom line is that the support is for the children and their lifestyle, although you may disagree with it and think that they are doing great. Does the compensation for the children meet their needs or do you think it is excessive? I say to you, sir, if you think it is excessive, then you should go back to the courts and get it changed. But just because they are doing good, I do not see --
Mr Flarity: Again, like I say, I have no disrespect to them doing quite well in life, all power to them, and I am glad to see it because my children live under that roof. So go for it, buy Canada if you can do it. What I am actually saying is that the money I was giving to them each month did not go to my children for clothing or for bicycles or for whatever you buy for kids out of support money, it did not go to any of that, it just went to their capital gain.
Mr Mills: How do you know that?
Mr Flarity: They admitted it to me openly. They asked for the adoption of my children and they were explaining to me why they wanted to adopt my children and take my name right off the paper. They got me to the point financially I was hurting so bad that I almost said yes, until I said, "Forget it." It is not the fact of the money any more, it is not the fact of my children versus his wanting to be the new daddy or anything. It was the fact they wanted to put me down and they were doing a good job of doing it, and I just said: "Forget it. I've had it."
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Mr Mills: Just one final question, to help me adjust and come to grips with all the things that we have got to think of when we come to this bill and finalizing it: Are the payments that you are making for your children commensurate with the upkeep of the children, notwithstanding the fact they have got all the rest?
Mr Flarity: Well, let me ask you if -- I do not know if I am running out of time. I am starting to feel like the time is coming near.
Mr Mills: No, no. We have got a lenient Chairman.
Mr Flarity: Well, let me ask you a question. Let me kind of throw something back, and I will be open. I was paying $600 a month for three children. Everybody tells me: "That is fantastic. You got off easy." You tell me where three little children spend $600 a month. That I do not know.
I also understand there was a law passed -- who knows when? I do not follow it all -- that if another man is living with your wife and has all kinds of money and whatever, that is not to be taken into consideration; it is still your wife and your children. So somebody should be able to live off of somebody's financial strain or burden or whatever you want to call it. I do not see it. I do not know, but I would argue it right to the end.
Mr Mills: I guess it is one's perception. Thank you for coming.
The Vice-Chair: Mr Carr, if you can make really brief, I would appreciate it.
Mr Carr: I will try. Thank you, Mr Chair, for including me in. I want to thank you as well. It is sad; it seems there are threats on both sides and we see both sides of it here each day. I thank you for coming in.
The question I had relates to going back, and I think you mentioned that you went to see a lawyer about going back and he was going to charge you a lot of money. We heard earlier from a gentleman who said it might take up to a year to do that anyway, and I was just wondering if the lawyer advised you because you would not win or it was going to be a long time or it would cost you a lot, what his reasoning was to say: "Forget it. Don't even bother with it."
Mr Flarity: The lawyer's exact words were: "This could take anywhere from a year to two years. We have to get her back in court. She has the right to have a lawyer, and it is going to cost X dollars, but your chances of winning are next to none." But he said, "That chance could be there that you could win."
Mr Carr: So he said a year to two years.
Mr Flarity: Yes.
Mr Carr: Because we had a lady representative from one of the groups who said it might take up to that but it would be a lot less. But your lawyer said one to two years.
Mr Flarity: Exactly. He said, with the courts being so full now, he would not even manage to be able to get in within the next six months, anywhere from a year to two years.
Mr Carr: Plus you probably would have lost and the only one who would have gained would have been the lawyer.
Mr Flarity: Exactly, and he did to begin with.
The Vice-Chair: Thank you very much, Mr Flarity, for coming. Never be afraid to come before these hearings. You are what this is all about.
Mr Flarity: Thank you for hearing me.
Mr Elston: Mr Chair, could I ask just a point of clarification either from the staff or from the PA?
The Vice-Chair: Sure.
Mr Elston: It has to do with the sick days or at least the loss of work through sickness for a person like Mr Flarity, or indeed in construction rain days, which means if you have five or six days in a row when it is too inclement to operate, is there an obligation for the employer to advise of an interruption? So every time there is a rain day or an extended sick time, they would have to, in Mr Flarity's situation, within 10 days advise SCOE. Is that not pretty onerous, particularly for construction people?
Mr Wessenger: I will ask staff to answer that.
Ms Pilcow: Chances are that people in construction are not going to be considered to be income sources, people who are not paid a regular wage, so not all of them are going to be caught.
Mr Elston: Mr Flarity gets a wage every two weeks or whenever he is paid.
Mr Flarity: Every week.
Mr Elston: Every week he gets paid, so it would be an income source. He will be employed by an employer. I suspect he is a member of a pool or of a union list or whatever and gets called, so if he is off for two weeks because of illness, his employer would have to advise SCOE that he was ill or else his employer would be in breach and subject --
Ms Pilcow: They would have to advise that there was an interruption. If there was no payment coming, they would have to advise that there was no payment and why there was no payment coming. What they could do is, with the last payment they get sent in -- and what we propose to do is to give them a form that they could fill out to say, "We're not going to pay this payment because there is none coming.
Mr Elston: What about the situation where there may be a partial -- for instance, if Mr Flarity worked for two days or was ill three or there were three days of rain on the construction site and they were closed down, would they still have to advise of an interruption or is that an interruption for the two days?
Ms Pilcow: That is not an interruption.
Mr Elston: So there would be something coming.
Mr Wessenger: Yes. I think it is only if there is an interruption of pay, not an interruption of work.
Mr Elston: Okay. So it is just if there is a nil file by the employer.
Ms Pilcow: No payment. An interruption of payments, meaning no payment.
Mr Elston: Okay. Thanks.
The Vice-Chair: Mrs Cunningham, one brief question, please.
Mrs Cunningham: If you do not mind, Mr Chairman, I think one of the problems in sitting in committee sometimes is that we are listening to things that could be clarified for witnesses and yet there is never any opportunity to do that.
The Vice-Chair: You are correct.
Mrs Cunningham: I think that is something that we should be thinking about in committees, because people leave here with misinformation and it makes us all look bad, I think. We should take the time, even if it comes from the Chair, interject and say, "Look, I would like to clarify that," or give somebody an opportunity because it is really not good for us. It is just a good thing that we are not being televised right now, that is all I can say, and it is not because I do not like the way the committee is going. I do.
But on the same point, Mr Chairman, in this case of Mr Flarity, when he was paying himself and sending his cheques in to the SCOE office, even when he was not employed, he still somehow found a way to pay his family. One of the problems with this legislation really truly is that the person who is willing to pay up under all kinds of circumstances will not be allowed to. That is a real downside.
My question is this: In that same letter that I was quoting from which was sent to the Chair and members of this committee, the Windsor office does not allow this postdating of cheques. I think we have got an administrative problem here. Why would one office allow it and another office not allow it?
The Vice-Chair: I will let the PA answer that.
Mr Wessenger: I think we have got a misconception here. When I listened to the evidence of the witness, the evidence was that, first of all, he made his payments through garnishment. He was garnished, which means he was in arrears, which he was not paying voluntarily. Second, he did make 12 payments when SCOE first came in but then he stopped them, so he stopped making his payments voluntarily. In my opinion, this witness showed the very reason why we need this legislation.
The Vice-Chair: Okay. Can we move on?
Mrs Cunningham: No.
Mr Elston: Mr Chair, just in fairness to the witness, I know that sometimes people talk about garnishments -- he maybe did have them take the money from his cheque. I am not sure exactly whether it was a garnishment. I know he used the term "garnishment," but in fairness to him, he had paid up his arrears when the order first came down, and I am not sure you are being quite fair. It may be that you are absolutely right with respect to his last three or four months --
Mr Wessenger: The last payment, he clearly --
Mr Elston: -- but I think that is unfair to say that he was only paying through the school board because of a garnishment because I am not sure that is exactly --
Mr Wessenger: It is taken from his own words.
Mr Elston: Yes, but that is not quite fair.
The Vice-Chair: Mrs Cunningham, go ahead. I am sorry. You had the floor.
Mrs Cunningham: Just to give the other side of the story, even when he could not work he was paying, so the statement is unfair. We have got problems on both sides, and I think our position here is to take a look at how we can best come up with some meaningful legislation. I think you have to give credit where credit is due, and credit is due there, so that part of the system is working.
My question was: Why was it allowed in one office that you could send in your post-dated cheques -- and as a representative of the public, I do not think we should be charging them any money when we have got a system that works well. Why can they do it in one office and not another? Is this an administrative problem that has been drawn to the attention of the government?
Mr Wessenger: I might just clarify this. There is no question the witness had paid up at the time he paid in the post-dated cheques, so I think that is the practice.
The Vice-Chair: Ms Murdock, please.
Mrs Cunningham: But I did not get my question answered. Why one office and not the other?
Interjections.
The Vice-Chair: Ms Murdock.
Ms S. Murdock: There are two points because Mr Flarity said that he was garnished during the period he was working for the board and that, when he left the board to continue his apprenticeship, he made an arrangement with SCOE to pay by post-dated cheques and they were the ones who suggested that. I know that procedure is used in Sudbury as well.
Mrs Cunningham: He is going to be happy with this, and if he is not, I think he should be called back to the mike.
Ms S. Murdock: Yes. That procedure, by the way, is used for post-dated cheques in Sudbury as well. It is interesting to note too that SCOE, a horrendous example, as far I am concerned -- one of the many, I mean there are so many -- but the one that really killed me was say the court had ordered the 15th of the month as the date for payment and the post-dated cheques that were sent in -- in one instance in a case that I had, the cheque was dated the 16th and SCOE actually had the audacity to send that cheque back as unacceptable and yet never processed it till the 21st. Just incomprehensible administration. I agree with Dianne that in many instances the administration aspects of the SCOE system are very, very bad, and hopefully Bill 17 will administratively correct some of that. It is the same thing with the Comsoc deductions; we made arrangements with the Comsoc office locally, yet it was not being done in other areas. There has to be a lot more co-ordination and information.
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The Vice-Chair: Thank you, Ms Murdock. Mr Sorbara, if you can really make it brief --
Mr Sorbara: I will make it brief, but I do note that we are right on time and we are going to be hearing from Mrs Lusher and the Heritage of Children of Canada almost right on time.
I wanted to take some slight exception to the remarks of the parliamentary assistant, who referred to the testimony of the last witness, Mr Flarity, and said, if I can paraphrase your remarks, "It's his testimony that confirms me in the view that we need this bill."
I think that is an unfortunate comment. The fact is, we are going to get this bill. All members of the House voted in favour of it on second reading. Our job here is to listen carefully to the witnesses to see how we might fine-tune this bill. If the Ministry of the Attorney General can get over its rhetoric about child poverty and its rhetoric about justice and acknowledge that this is a bill to make SCOE work more effectively and save tax dollars and save social assistance dollars, and if we can listen to a man like Mr Flarity, who says, "The prohibition against employers firing as a result of an automatic deduction order is not worth the powder to blow it to hell" -- when he says that, he is quoting the now Minister of Labour -- then we could learn something from these committee hearings and maybe fine-tune the bill and discharge our responsibility.
Mr Flarity's testimony did not confirm me in the fact that we need the bill -- we are going to have the bill -- but that we need to do some fine-tuning of it. And I would recommend some greater flexibility to keep people out who do not need to be in.
HERITAGE OF CHILDREN OF CANADA
The Vice-Chair: Our next presenter is the Heritage of Children of Canada. Welcome. You have a half-hour. You can use that any way you want.
Mrs Lusher: I am not new to this. I have made plenty of presentations which the other government knows about. After five years I think I have some experience. I have been sitting in at the Legislature for the past five years; some of the members are not even here that long.
Mr Sorbara: I think there is a standing order which says we cannot sit unless you are here.
Mrs Lusher: I do not get paid for my time. I get nothing for it. As a matter of fact, it costs me to come here.
Mr Sorbara: We are delighted to have you.
Mrs Lusher: I will let you know what is really happening. It has to do with Bill 17 as far as support goes; we know that. But it also has to do with custody. It is a very, very big issue and we all need it.
I am the founder of the organization the Heritage of Children of Canada. We are very concerned about what is happening in this wonderful country. Ontario is looked upon by all other provinces as a role model. Bill 17 deals with support and custody; the main issue in the bill is the support for children. This is important, but what about custody or even access to the children?
The families that are divorced or separated put a demand on fathers' obligation for support. Many of these fathers pay the support and are denied access to their children. Many are labelled abusers and molesters by the mothers or the girlfriends. The courts and the lawyers go along with these allegations. The children's aid and the official guardian's office who are assigned to many of these cases also go along with these allegations against the fathers. No court or lawyer should have the right to label anyone without absolute proof or investigation. If a slight doubt of abuse exists, access should be allowed, supervised access with a third party.
Why are the children deprived of their heritage? Why, when there are family problems, are the victims the children? Why is there not family counselling enforced to ensure the rights of children and their heritage? Mediation should be enforced by law. Many mothers will make excuses not to let the fathers see their kids, denying their rights even if they are making payments. Do you think this is a fair system? Fathers of these children have parents, grandparents of these children. They too are denied access to the children; the extended family, aunts, uncles, cousins and so on. The children get to know only one side of the family, the mother's side.
I would like to know: Were you people brought up this way? I know I was not. Are you doing this to your children? Children must know their heritage. There are couples with children, not divorced or separated, and the husband is manipulated by the wife, who is the daughter-in-law, not to have anything to do with his extended family, so the children are denied their heritage as well. There are 95% of men in this category and 55% of women who are manipulated by their husbands doing the same thing to them.
Why are children the pawns? We need a law to protect the heritage of children. We all know that children need to be supported financially, but what about the human side? Do you not think children have rights? Why do you not take into account that many children are manipulated by their mother to believe their father does not care for them and does not love them? Children are born innocent and are very trusting, and if they do not see their father they will believe they are not loved by him and that he does not care for them. This has a psychological effect on the child. Why do you not think this can cause a problem for a child's future? What can Bill 17 do? Remedy the future of the children.
There are many mothers on welfare or family allowance. We understand the need for support payments, but what do you intend to do when the father pays and is denied access to his children? Many of the mothers have boyfriends and the children accept them as fathers and their real fathers cannot even see them. But the money is taken by the mothers. What happens when the mother and children move and this move makes it impossible for the father to see his kids, yet he must pay? What solution can you suggest to this situation? Children need both parents, grandparents and extended family members.
The Heritage of Children of Canada wants something done on this issue. Children have a need for love, emotional support, and a need to know their families on both sides, whether good, bad or indifferent. Many of these children wind up on Yonge Street and do not trust their elders because of what happened in their young lives. They become drug addicts, criminals and prostitutes. We know there are 15,000 of these kids on the streets in Toronto. Many of these children are dropouts from school, and no one cares. Some of these kids wind up in foster homes. They do not know their grandparents, who care for them, and have no knowledge of where they are. Also, the extended family is important to our children.
If fathers are denied access to their children, then why not give custody to the father and access to the mother? Everyone talks about these problems but no one does anything to remedy the problem.
Grandparents would like to play a part in their grandchildren's lives. Why is there no law for grandparents? We are fighting for the past five years, sitting in on the Legislature to get some recognition for grandparents' rights, to have the same right as the parent. Many of the Legislature members know us and know what we want done. We will not stop pursuing this right for grandparents and the heritage of our children.
There were standing committees in the last government, and many fathers, mothers and grandparents made submissions, yet it was a waste of time and money and effort. Nothing was done to remedy the problem.
On 26 January 1991, a Saturday night, there was a TV show; the program was Isabel Bassett on channel 9 concerning drugs in the neighbourhood. It concerned mostly single parents and children. Is this the way we are going, a province where our children do not have a future? We must wake up now. We must care. Bring back the family value. The courts, the judges, the lawyers, all should be responsible for labelling and crucifying the public. There should be no immunity for them. Maybe things would change by using the truth.
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You know I have been there. I have been on many committees with Ian Scott, with John Sweeney, the human rights committee. I have made all these submissions. No one, not with a twinkle of an eye, puts any effort into helping the children, the grandparents who want them. They are put into foster homes.
We have a grandmother here, and, God bless her, she has a mother who is a great-grandmother. Her son is married like my son is married. They are not divorced but they are manipulated by their wives. They cannot see the children. Neither can I. I have been in the court for a long time. I only saw my grandson for half an hour when I was supposed to see him for an hour.
The court system stinks, I will tell you that now. Because you were told you have a psychologist, a psychiatrist, a social worker, and you are going to see the family singly, together and with the child, and it does not happen. Yet the social worker takes on all of that work. No psychiatrist, no psychologist, just the social worker who is just out of school and using me as a guinea pig to get her practice. She is the one telling me I cannot see him more than a half-hour. There was no communication with any of the family. If I were in a foreign country, I could understand it but, my God, I am living in Canada.
Mr Carr: I appreciate your emotion and passion in this. I was thinking we do not use the resources of grandparents enough in other areas, even when we do have them. One of the questions I have goes back to one of the questions I had before with the court situation. You tried to get it through the courts. Maybe you could explain what happened.
Mrs Lusher: I have a judgement on my back for $4,350. The judge who was there did not even let my lawyer speak. He was with the other lawyer, the opposition lawyer, like this. Every time my lawyer wanted to say something -- as a matter of fact, my lawyer was here on Bill 124, John Weingust, and he knows, and I can prove it with him, that the other lawyer was in cahoots with the judge -- I reported him to Osgoode Hall; I am waiting to see if something is done -- because after the trial, he asked the other lawyer, Paul Pellman, if there was anything else he wanted to put in the judgement and he would put it in against me. The judge put in the judgement that I had no right to make an application to come into court for access to see my grandchild. I was labelled in the court by this lawyer that I do fortune-telling, I do witchcraft -- you people know me over five years; I would not be here if I do that kind of stuff -- and refused me to see my grandson.
I am only one. I have a lot of grandparents that have gone through the same thing. I have been in court with a lot of grandparents. I have been in court with another grandparent who lives up in Orillia. She is very sick; she would have been here. Her daughter-in-law took advantage of her son. They separated, they got divorced -- had a little girl. This grandmother used to raise this little girl. She used to come in with all kinds of marks on her body. She did not know what it was. Her son was labelled an abuser and a molester. This young man had a very good job with CN, he was an engineer. He went so far down the tubes he had three nervous breakdowns. On the third breakdown he lost his life. He was one week short of 36 years. The little girl became a ward of the court. They would not let the grandmother have her while he was alive, because if the grandmother had her he would come to see his child, and he was labelled an abuser. He had no rights.
Mr Carr: Would this particular --
Mrs Lusher: Listen what happened to this thing. Just a second. We went back to court with her and the judge there did not want to take the responsibility, so he opened the case again, because the child was made a ward of the court and was put in a foster home. She was so mixed up she had to go on pills for psychiatry. They had to take her to a psychiatrist.
This grandmother is torn apart. She is very, very sick. The little girl is now 15 years old. When her father passed away she went to the funeral, and all she was thinking about is how much money and where she is going to go for a good time. I think that is a terrible thing to do, to tear up families.
And who did this? The children's aid society and the guardian's office. This is what work they are doing. We have to get them out. We have to redo the children's aid. We have to close up the guardians, because they are putting in children from school. They come out of school with their briefcase and they are going to be your social worker in the court, not even knowing what hurt it is and what these people are going through. I have had three of them, and the minute they see you, immediately it is no access.
Mr Carr: Would Bill 17, in your estimation, having -- I am gathering now -- spent a great deal of time on this and also Bill 124, make the access question more difficult or easier or what?
Mrs Lusher: This will make it more difficult. Even though fathers have to pay, they are not seeing their kids. Where is the access to this? You are just looking for money; money is the cure-all. You have human beings to contend with. You have people who are going to be the future of this country. You have 15,000 kids just on Yonge Street, not even the whole province. The whole province has over 100,000 kids roaming the streets.
I had a call the other day. I was on the Shirley show. I told the Attorney General he is going to get a tape to see that show. I had a call from Newfoundland the other day, which is not this province, and she has problems there. So I told her: "Everyone is looking for Ontario. If we can do something in Ontario it is going to go all over the country."
Mr Carr: One last quick question: With the overall question of access, do you see access as being one of the major reasons that payments are not being made?
Mrs Lusher: That is right. That is one of the major reasons a lot of fathers are not paying. If I do not see my child, why should I pay? That is the answer. We had fathers on Bill 124, if you go back; Dianne, you remember. One father was crying here. He called his little girl -- he has not seen her but he has been making payments -- and he asked for her by name and she said, "That's me." He says to her, "I'm your real daddy." She says, "Which one?" That man was crying here. "Which one?" How many men has she got who this little girl knows as daddy?
We have another grandmother. Her son is a policeman in Metro Toronto. She is not here today. He has two children. He is divorced. He is a policeman and he pays $1,100 a month and has not seen his two kids for almost four years. And if you think that is right, I do not know what kind of system you have here. But he is paying $1,100 a month and she is always making excuses. This woman is living with another man. That other man has become daddy. This one is a bad daddy. They stay away from him.
Mr Mills: I would just like to speak. Support and access, as far as I am concerned, are not related issues, but I have a lot of empathy for what you are saying.
I like to think that this bill is being introduced for a number of reasons. One of the reasons, perhaps, is that a lot of grandparents have become supporters of their grandchildren. The husband takes off, leaves the daughter at home, she ends up coming back to the home, and the grandparents in fact pay child support. Then down the road when something happens, the grandparents become sort of separated from that grandchild even though they have supported it.
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I have a lot of empathy with what you are saying, as a grandfather. I have five grandchildren, three of them teenagers, and I find that they use grandparents as some safety valve and a support system. When things get hot at home, they come over and they talk about the problems and we are able to sort of counsel them. We go back and it helps smooth the transition and everyone is happy ever after, sort of thing.
I would like to see in the legislation some provision whereby grandparents do have access to their grandchildren, without necessarily undergoing some psychiatric testing to see, like you apparently were, if they are capable or the proper person to see those children. I think that is dreadful and I would like to see some sort of legislation introduced whereby if the parents fall out and they cannot be reconciled ever again -- notwithstanding that, I really think the grandchildren have a right and the grandparents have a right to some communication, whatever the problems between the parents are.
Mrs Lusher: Yes, but you are talking about separated and divorced people. Also, like we say, we are in a situation -- there are thousands of us -- where the daughters-in-law are manipulating the sons, or the son-in-law is manipulating the daughter, and using the children as weapons: "If you're going to call your mother or father or you're going to go to see them, don't come back. You won't see your kids." Now, they are concerned about their own children. They are not going to come, they are not even going to call you.
Mr Mills: With all respect, Sylvia, with all respect to that, I think that is another issue. You know, here we are talking about support payments and custody.
Mrs Lusher: Right.
Mr Mills: I am trying to say to you that in the custody realm of things that may be, I would be interested in ensuring some sort of access by grandparents to grandchildren who are the subject of the bill that we are looking at. Okay?
Mrs Lusher: Right. I understand it is for the support.
Mr Mills: Yes.
Mrs Lusher: But I want to point out one more thing. We have a father here, was married for 17 years, has adopted a little boy. For some reason or other there was a split-up; I do not want to go into that. He had custody of his child. They came at 2 o'clock in the morning to take this child out of the grandmother's -- he was sleeping by his grandmother -- and took him out and the mother of the child is now in California with him. It is costing him a fortune in lawyers to try to bring that child back. He is a Canadian citizen; he was born here. They did not sign any papers that they can take him. They just took him at 2 o'clock in the morning when the kid was sleeping, and he is paying, he is paying support.
Mr Mills: I realize it is a very emotional issue for you and I thank you for your comments.
Ms S. Murdock: You notice he has given up. In any case, I just want a clarification here. I am hearing you say, "Why should you pay support if you do not have access?"
Mrs Lusher: That is right.
Ms S. Murdock Okay. At the same time you are asking for grandparents to have access.
Mrs Lusher: That is right.
Ms S. Murdock: So are you also, in the same breath then, saying that grandparents would pay support?
Mrs Lusher: Some of them would, yes. If they do not get support from the fathers or the mothers, some grandparents will pay for the children. But they have to see them, they have to know where they are, they have got to be involved with their lives. They want them to grow up good citizens, they want them to go to school, where you have thousands of them that do not have that. They do have extended families but they do not even know where they are.
Ms S. Murdock: I want to give members of the opposition an opportunity to ask questions, so I do not want to take up too much time before Mr Sorbara gets his hand in there. However, the other thing I wanted just to emphasize, I think -- and I certainly sympathize with your plight and the plight of the other examples you have given -- but Bill 17 of course, as has been stated, is the enforcement. I know we are dealing with the support.
Mrs Lusher: It is the enforcement for money, but where is the custody coming in?
Ms S. Murdock: Child support and custody order enforcement, and I know that this act specifically is on the enforcement section of the SCOE.
Mrs Lusher: For the money problem, right.
Ms S. Murdock: And it is not the custody.
Mrs Lusher: The bill does say "custody," but there is nothing in the bill that says custody.
Ms S. Murdock: No. That is right, because as I was explaining, this is for the enforcement section of the order and not the custody section of a support and custody order enforcement.
Mrs Lusher: Then they should not have named it. They should not put the word "custody" in. They should have said just for money, that is all.
Ms S. Murdock: No, no. This Bill 17 is an amendment to the section regarding enforcement and has nothing to do with the section regarding custody. So the whole act is called Support and Custody Orders Enforcement Act, and then within that act, this is an amendment to it.
Mrs Lusher: Then it is putting people on the wrong line, because they do not think that way.
Ms S. Murdock: I think that is probably a good suggestion that was made by a group. I know you have been here all week and --
Mrs Lusher: I have been here for five years, my friend.
Ms S. Murdock: But I have not been, but I have noticed.
Mrs Lusher: They ought to give me a special honour just to be here.
Ms S. Murdock: Anyway, thank you very much. I will not finish what I was going to say.
Mr Sorbara: The only reason why I would not want there to be a solution to Mrs Lusher's problem is that she would then leave us in the Ontario Legislature and I am not sure how we would get along without her.
Mrs Lusher: The only way you can keep me here is to make me one of your members.
Mr Sorbara: You could do that. It is easy enough to do that.
But the good news today is I have no questions, because I have had lengthy discussions with Mrs Lusher about her problem, including I have read the judgement that she referred to. I do want to congratulate her on the way she portrays lawyers in her submission. I find this is the most creative use of computer technology that I have ever seen and the only thing that disappoints me is that I did not think of it.
Mrs Lusher: But, Greg, you know something? Some of these lawyers --
Mr Sorbara: My name is here, but it is so small that I would need a magnifying glass.
Mrs Lusher: Do something good and we will give you a better name.
Mr Sorbara: But there is good news --
Interjections.
Mr Sorbara: Mr Chairman, you are losing control of this meeting and you always do that when I have the floor.
Interjection.
Mr Sorbara: Yes, it does say something. But there is good news. I heard, and it is on the record, that my friend Mr Mills, the member for -- where is it Gord?
Mr Mills: Durham East.
Mr Sorbara: Durham East, has undertaken to introduce a bill in the Legislature to deal with the access rights of grandparents, and I think that would be a first good step if you could get a private member's bill, and I am sure Mr Mills would be anxious to sponsor that and work with you on it.
Mrs Lusher: But if you will remember, as a private member's bill --
Mrs Cunningham: You should speak to Don Cousens.
Mrs Lusher: Yes, Don Cousens.
Mrs Cunningham: Mr Cousens from Markham.
Mrs Lusher: Don Cousens had Bill 45.
Mr Sorbara: But the fact is that Cousens is sort of a has-been.
The Chair: Perhaps we could get back to the framework of Mr Sorbara's question, if he has one.
Mr Sorbara: Cousens is sort of a has-been and Mills is on his way up, so I would choose him. Besides he belongs to the government party.
Mrs Lusher: That is right.
Mr Sorbara: He might be able to get his party to recant on what it did on Bill 124 and proclaim it -- that would deal with one part of access -- and to make it a government bill, his bill on grandparents' rights. The only downside is that you would not be with us every day in the Legislature, but I think we will have to bear up with that.
Mrs Lusher: If you want me to be there, then call on me. I will be there.
Mr Sorbara: Okay, I will.
The Chair: Thank you very much Mrs Lusher.
JOAN GATES
The Chair: Our next presentation is from Joan Gates. The time allotted in your agenda is I believe inaccurate. Ms Gates will only be with us for 15 minutes. Joan, please get comfortable, make your presentation and divide up that time however you wish. I am sure there will be many questions after your presentation. Go ahead.
Ms Gates: Thank you, Drummond.
I appear today basically representing myself as somebody that has accessed the system. To give you some background, my son was born in 1974. I am actually what they would term a former welfare mom. I was fortunate to beat the statistics, and in 1978 I graduated from Durham College school of nursing. I became a registered nurse and instead of being a dependant of the government of Ontario, I actually sort of changed cheques there. I went on payroll.
Now my presentation: Basically, if you want to follow along, I appear today before you as a disheartened, angry mom, a mom whose spouse said he would never willingly make one support payment and he never did. He only paid when you chased him and when you chased him through the system and insisted. He paid once and then promptly stopped. One gets tired of having to chase someone for what has been awarded to you, especially within the very complex interprovincial system, not to mention the expense and the consumption of time that it takes, basically on a weekly basis. You have to go back over and over again. When you are living in Vancouver or Nanaimo or wherever, you are dealing with a huge maze, I will tell you.
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I feel that the ineffective system presently in place is insufferable and outdated and improvement is long overdue.
I believe that the major challenge to our society is a large task and that task is to change people's attitudes towards child support. It has to be an accepted practice to be accountable for one's children. Society must change its thinking towards the paying of child support. We have been successful in other campaigns. We have been successful in the drinking and driving campaign and the smoking campaign and I put it to you that this is an attitude that needs to be changed possibly through a campaign. Surely there is much more we can do for a commodity as precious as our children.
The damage, both physically and mentally, done to our children abandoned by one of their parents is insurmountable, unforgivable and basically a national disgrace here in Canada today.
The non-payment of child support is extremely damaging in the long term to your family relationship. A child grows up realizing that he or she has received no financial or emotional support, which is essential to his wellbeing, from one parent. One parent basically is left stressed out and struggling to provide the essentials of life without the financial or emotional support of a two-family situation. A child grows up aware that he or she is deprived of things that most of his peers seem to take for granted in a two-family situation.
A mountain of support payments, accumulated over a number of years, becomes a huge obstacle to ever establishing some form of family relationship, if you think later on that you are not as wise as you were when you were young. You have second thoughts about this and all these support payments make it extremely difficult to go back.
I would also like to comment, actually separate from this, that I believe child support is a shared responsibility between parents. I have not written it in here but it occurred to me on the Don Valley Parkway on the way down that there also should be some provision for ensuring that benefits are provided to children as well on a shared basis. Benefits, to some people, are major, especially if you have a child that is ill. Benefits should continue basically from both spouses, I believe.
I do not believe that the social service system that we have developed was intended to provide support for people who are totally capable of paying the support for their own children.
Recommendations: I recommend that the law relating to actually the support provisions -- in my case, I am commenting on support -- be changed. Parents do not need to battle for the rights of their children and I believe it is a child's right to be supported by both parents.
I think it is essential that we embark possibly on a massive campaign to improve society's attitudes towards responsibility and accountability for providing for one's children. There still is a belief out there that women take their child support cheques and go out and buy mink stoles. I do not understand why people do not realize that kids have to eat and basically that is what it is.
There possibly should be some provision for education dealing with stress and the stress encountered by parents in this situation as well.
I believe, and it is sort of unfortunate, that one of the only ways to do that is through mandatory attachment of wages for child support. I think it is an idea that has come. Unfortunately in an ideal world and under ideal situations we would not have to use it, but I think that in most cases it is the only way to go today.
Mr Morrow: First, I would like to really thank you for coming, Joan. I just want to ask you to expand on your last point about stress education because I can understand how this whole situation can be very stressful. I would just be really interested if you would expand on that a bit.
Ms Gates: Actually, I am a nurse. I worked in psychiatry, and of course I believe that most of our society needs stress education. The people I have talked to who have dealt with SCOE and dealt with any type of ongoing battle to get child support are extremely worn down, stressed out, and I believe that there should be some provision in some way to educate people around this. I am not 100% sure how we can access that family.
Actually, the South Oshawa Community Development Project in Oshawa is providing some degree of that type of thing, but there should be ways to tap into it. You know, even going to the offices -- I went to register for SCOE and they gave me a packet of papers that I could not begin to ever fill out because I have not seen this person in 15 years, you know.
Mr Sorbara: I have a question dealing with your personal circumstances, if you do not mind, Ms Gates. You said that your former husband vowed that he would never willingly make a support payment.
Ms Gates: That is true.
Mr Sorbara: And then he made one, I guess under compulsion or something.
Ms Gates: Actually, he never even made the first payment. At that time I was on mothers' allowance, and of course they were not supported through that. When I graduated from nursing, I decided that I was going to pursue it on my own. When the court threatened to throw him in jail, he made a few payments, and other than that there was never consistent payment.
Mr Sorbara: Was this before the creation of the support and custody orders enforcement branch?
Ms Gates: Yes, it was. My son was born in 1974. He is 16 now.
Mr Sorbara: We are going back plenty of time.
Ms Gates: Yes.
Mr Sorbara: And then you said that you went to the branch to register. They gave you a pile of documents. Did you ever register with that branch?
Ms Gates: Actually, I never did. They gave me a huge pile of documents that basically -- you know, descriptions of social insurance numbers, "What's your last job?," all that stuff that if you have not seen somebody in years, you have no access to. At that point basically I thought, "I can't do this." At that point it was taking letters every other week or something, that type of thing.
Mr Sorbara: I am sorry, I do not understand what that means.
Ms Gates: Actually, he was registered in the court system in Nanaimo, and it was taking letters on a consistent basis to get them to process. You want to go on with your own life and so you basically say, "Oh well," throw up your hands and give up.
Mr Sorbara: So at the time that you went to register with SCOE, your husband was not employed in the province of Ontario.
Ms Gates: No.
Mr Sorbara: He was in British Columbia.
Ms Gates: He was in Nanaimo.
Mr Sorbara: Was he working at a job as a salaried employee, or did you know that?
Ms Gates: Yes, he was.
Mr Sorbara: What is he doing now?
Ms Gates: I do not know. I gave up that chase and I thought I had better get on with my life, Mr Sorbara.
Mr Sorbara: So you got on with your life and you have not had the support payments, and you do not ever expect to collect arrears.
Ms Gates: I think that this probably is too late for me. Hopefully it will not be too late for others.
Mr Sorbara: Could I ask, just in that regard, the members of the policy branch of the ministry whether the automatic deduction order is enforceable outside of the province of Ontario.
Mr Wessenger: No, it will not be enforceable outside the province of Ontario.
Mr Sorbara: So there is no reciprocal arrangement under the act, or being contemplated, such that this would be enforceable in another province.
Mr Wessenger: Although we do have reciprocal arrangements with respect to garnishment in other provinces, including British Columbia -- I might say that if your former husband is regularly employed in Nanaimo, I do not see why the collection of the arrears could not be enforced through SCOE.
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Mr Sorbara: Do I take it then that any defaulting spouse, any payer who is not paying who leaves the province of Ontario, will not come within the net of this legislation?
Mr Wessenger: Will not come under the support deduction order unless, of course, in future other provinces adopt similar legislation and then we can arrange reciprocal --
Mr Sorbara: Or we cede jurisdiction and lodge this jurisdiction with the federal government, assuming there is one.
Mr Wessenger: Yes, assuming there is one.
Mrs Cunningham: I wanted to say thank you for being here today. I am assuming you are here because you think the legislation is a good idea.
Ms Gates: Yes.
Mrs Cunningham: You have also enlightened us around some of your concerns about the administration of SCOE and being handed a whole package, perhaps with or without assistance in filling it in. The futility of trying to find somebody you have never heard of for so long is probably a very realistic scenario for a lot of women whose former husbands choose to leave the province and the country.
I wonder, just from a point of view, you have obviously had an interesting life since you have been a student and graduated, and you are now working and you know a lot, I feel, about people because of your profession. One of the aspects of this bill is the automatic deduction from pay. We have had a number of witnesses, both men and women, come before the committee and say that where people are paying regularly, this would be an infringement; in fact even challenge their ability to retain a job. We just had a gentleman earlier this afternoon tell us he was very concerned about it. I wondered if you had any personal points of view on that.
Ms Gates: Again, I think that in an ideal world in ideal situations, you would not have to go to this, but a lot of the people I work with, even though their spouses are consistently employed or employed on a regular basis, do not receive money unfortunately without having to go through the hassle on a regular basis, almost weekly. One of the co-workers I work with said to give you a message: She is tired of having to pay her lawyer on a consistent basis to get something that belongs to her and her kids.
I think that unfortunately it is a system that we are going to have to use because all the best intentions in the world do not get the money there at times, and once they get behind, you are in big trouble.
Mrs Cunningham: If I may ask another question, given the experience of your co-worker and yourself, did your husband leave the province of Ontario, do you feel, because of the fact that he may have to pay, or did he go away because of his work or his life or whatever?
Ms Gates: There is a belief that if you leave the jurisdiction or if you jump, you do not have to pay. I think there is an element in that, yes.
Mrs Cunningham: Of course, we have been warned that that may happen more frequently with this legislation by people who do pay regularly, which is a great concern. People who are regular supporters of their families who do not want to subject themselves to payroll deductions could in fact go elsewhere. What is your experience with Comsoc in regard to trying to retrieve the money from your former husband? Did you have to make a very valiant effort to find out where he was in the beginning or you never would have been eligible for support payments?
Ms Gates: Believe it or not, it was fairly simple. You just had to write the motor vehicles department in the province and they told you whether or not he was registered. They gave me his address actually. But I found that when he went into court, it was cry me a river in Technicolor -- all of a sudden, "I have absolutely no money" -- and I have seen it over and over again. They erased the arrears, I think on two occasions, so I never did get it.
Mrs Cunningham: Part of the reason for this legislation is so that the government itself can find more people to pay us back for the support that we have been giving to families who deserve to have that money. I mean, there is no doubt in the taxpayers' mind, in my view, that they want to be able to support women and families.
It is interesting to note how frequently people escape from the province, and I am not sure whether this will be giving them another reason to escape. In my view, it will, but unfortunately this time we will have people who are willing to pay looking at that opportunity not to live in Ontario. I believe that strongly. They are already paying up. But this committee is going to look at that. We will see what we can do about it. I really appreciate your being here today.
Ms Gates: Again, in an ideal world and an ideal situation, maybe we would not have to use this, but unfortunately we are far from ideal and, once you start getting mountains of arrears accumulating, it is really hard to get any of that back. Maybe this system would allow for that not to happen. I really believe that our social service system was not built to support families that are basically capable of supporting themselves. Again, there is the idea of changing society's attitude. Thank you.
The Chair: Thank you, Ms Gates.
I would like to draw the committee's attention to something which was circulated during the noon hour, that is, exhibits 78 through whatever, in a packet that the clerk circulated. Please feel free to refer to them later on.
LAW UNION OF ONTARIO
The Chair: Now we have the Law Union of Ontario, and representing that group is Ellen Murray. Please ask your colleagues to identify themselves into the mikes for the purposes of the recording.
Ms Cohen: My name is Marion Cohen.
Ms Curtis: I am Carole Curtis.
The Chair: Thank you. We have approximately half an hour, give or take. Usually the time is divided up half for your presentation, half for questions from committee members. However, the time is yours to use as you wish. Please feel free to commence when you are comfortable.
Ms Murray: Thank you. We will try to leave plenty of time for questions.
My name is Ellen Murray. I am a family law lawyer practising in Toronto. I have been practising for 14 years. I am here for the law union with Ms Cohen and Ms Curtis. The law union is a group of lawyers and paralegal workers in Ontario that has approximately 200 members, and among our membership is included a number of people like me, people who have been practising family law for 10 to 15 years.
We have represented men, women, mothers and fathers, debtors and creditors for a long time in the courts in Ontario, and we are here to tell you today that we are delighted to see Bill 17, because the problem of non-enforcement of support orders has been one that we have had to deal with, pretty much unsuccessfully, for years. We have seen our clients, both the debtors and the creditors, suffer from a system that is inconsistent and is not speedy. Bill 17, we believe, promises to rectify a large part of the problem that exists.
The brief that we have given to you talks in part about what we see as the problem and some of the changes that we think can be made to Bill 17 to improve it. But what I wanted to talk to you about briefly today was what we see the problem as in more detail and why, in terms of our experience in the actual court system, it is a problem and why we think Bill 17 will help solve it.
Let me first start with how support gets ordered, because I think one thing that it is very important to keep in mind when you are looking at this bill is that what we are talking about is enforcement of support that has already been ordered. We are talking about enforcement of orders where a judge has had an opportunity to see financial statements, to hear from the parties and to decide what is fair for a parent to pay for his or her children's support. So we are not dealing with situations where an unfair order has been made in any sense of the word that we would recognize.
The next thing I think it is important to recognize is that, by and large, the amounts that are ordered for support in the court in Ontario are not generous amounts. They are not large amounts of money. I do not want to try to give any benchmark for support, but I think it would be fair to say, and I think we would all agree, that it is very unusual to see a child support order for more than $500 a month. Yet, even the cost of day care for a child in the city of Toronto is usually much more than $500 a month and much more than that goes into supporting a child. So we are not talking about extremely large amounts of money usually that are being enforced.
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The results of a family law system that does not adequately enforce its support orders are tragic, and we have been seeing that for a long time. At the most basic level, you get many, many situations where children are not enabled to enjoy any extras because the support is not coming in. They are not able to have lessons, they are not able to have adequate clothing, that sort of thing.
I think the more serious and frankly the more common result of a poor enforcement system is a system that throws many, many more people on to the welfare system. We refer to this in our brief. There are many people in our economy today, and they are usually mothers, who are getting what I would call a marginal income. They are earning $15,000, $18,000 a year. Let's say they have two children. If the father is ordered to pay $500 monthly in support and he pays it on time, they can hang on and they can have an adequate lifestyle for themselves and the children.
But if that support does not come on time, if it is late, even if it is paid in late clumps every three months, maybe every year -- you do not know when it is coming -- that mother is not going to be able to survive adequately in the system as it exists now. What she is going to end up doing is resorting to mother's allowance or to general welfare assistance because her costs will be less, she will not have to pay day care, she will not have to worry about when that money is coming every month and she will leave it up to mother's allowance to collect the money.
This is a problem that we have seen over the years that is very widespread. The Support and Custody Orders Enforcement Act that was brought in previously was supposed to solve that. Unfortunately, as I am sure you have heard all too often already, it has not made a big dent in that problem.
We are all familiar with cases in which an order has been registered for enforcement with SCOE for a year to a year and a half where the payer is employed or has substantial property and where no enforcement action has been taken during that whole time because the system is so bogged down. Just one case that I can give you, which I do not think is atypical, came across my desk a week and a half ago, I think, and illustrates the real depth of the problem in the system.
About a week ago, I was acting for a second wife -- I will call her the second Mrs Smith -- and the Smiths were breaking up. The Smiths were not a poor family. They had four rental properties in the city of Toronto plus their house. When it came time to divide up this property, we discovered that Mr Smith owed his first wife child support for three years. There had been a SCOE registration made on one of the properties just a couple of days before we were supposed to transfer, but nothing had been done to collect this child support for three years and Mr Smith certainly could afford to pay. He just had other priorities and did not want to pay, and the first Mrs Smith and her child were on family benefits. That is the kind of situation we are dealing with in many, many cases.
The major advantage, the best point we see in the new legislation is that it brings in an enforcement system that really is an automatic enforcement system, that truly is universal and, because it is universal, is non-stigmatizing. I think in some of the material that explained the bill from the Attorney General's office, they compared it to an income tax deduction. We think that that is a very good comparison, and if it is understood properly, the fact that it should be non-stigmatizing will also be understood.
I am sure if you look back in Hansard in the early part of this century when our income tax system was brought in, you will see a lot of questions and complaints about how this system was an invasion of privacy and could people not be trusted to pay their income taxes and -- pardon?
Mr Elston: I was going to pay them.
Mrs Cunningham: That is not my attitude on that at all.
Mr Elston: But she is a Tory.
Ms Murray: I will keep that in mind. But we have had this system for many years. It works, at least in the sense that it collects most of the tax it is supposed to, and just think of where we would be if we counted on the honour system to pay your income tax.
Mr Sorbara: We do. It is voluntary assessment.
The Chair: Reserve your comments until later.
Ms Murray: It is voluntary assessment, but it is deducted from your paycheque. In any event, we saw the universality of this system as a real key to it and an aspect that would free up SCOE from what has been the impossible task of trying to enforce on an individual case-by-case basis every support order that is made in the province of Ontario and concentrate on the really hard cases that no act can possibly cover: the guy who quits his job all the time and goes from employer to employer to employer or the person who is self-employed. That is what we see as being the major benefit to the system.
Let me just highlight a couple of the changes that we would suggest in the act as it exists now. One, a real simple area is the language and the drafting in the act. We all found it very hard to understand. We think judges are going to find it very hard to understand. It needs to be simplified if we are to prevent more litigation than is necessary over it.
The second area that was of concern to us was the provisions that allowed opting out by agreement. We appreciate that people have to go to court and say, "We want to opt out," and that is supposed to be a protection, but we do not think it is enough protection. It is inevitable, if you allow people to opt out of this system, that whether you are in or out of the system, whether there is efficient enforcement or not is going to be a bargaining chip. We do not think it is appropriate that it be a bargaining chip.
In the example of the first Mrs Smith that I gave you just a little while ago, one of the results of the whole negotiation that I saw taking place between Mr Smith and his first wife was that he talked her into opting out of the current SCOE and talked her into cutting the measly arrears in half, even though he was well able to pay.
We feel that it is not appropriate to allow that opting out under any circumstances. The only legitimate reason that the creditor would have now for wanting to opt out is if the system is so slow that she is not getting her payments very quickly. Then she may say, "Well, I'll agree to opt out and at least I hope he'd pay me more quickly directly." If this new system solved that speed problem, then there should be no legitimate reason to opt out.
The second area that gave us concern was the provisions of the act that allowed a suspension of a support deduction order on the ground of unconscionability. We found it very difficult to imagine any widespread circumstance under which it could be said that it would be unconscionable to be in the system if it truly was non-stigmatizing, as it should be perceived if it goes into effect. Our fear is that the discretion given the court under the act to take a suspend a support deduction order if unconscionability is found will be too wide and will detract from the universality of the system.
We can all imagine cases where a judge would say, "Gee, I don't think it is so fair that this fellow should be in the system because he has had an interim support order for six months and he has paid it to date," or "He says he is afraid his employer will fire him, even though the act says he shouldn't be fired." Those should not be reasons to be taken out of the system if we want to preserve the universality of the system, and I think preserving the universality of it is key. If you leave judges the option to do this, it is our experience, based on the way judges in family court handle current enforcement proceedings, that there will be a number who will take that opportunity.
Just one last comment before I ask you if you have any questions you want to ask us. You may have been told by other presenters to your committee, or you may have received complaints on the order of, "I'm not getting access to my kids," or: "I have trouble getting access to my kids. Why should I be paying if I'm not even seeing them?"
We want to make one comment to you about that. Part of the history of family law and of family courts in this country for the last 20 years, and one of the progressive parts, has been that the concept that support payments and access rights are connected has been broken. Judges have tried to make it very clear, and judges have made this law, that children are not property that you pay to see.
The two things should not be connected and there are cases we have all seen where a parent legitimately cannot afford to pay support and still gets access rights, and vice versa where it is detrimental for the children in very serious cases to see a parent, but where the parent still has the ability and is ordered to pay support. It would be a regressive step to start linking those two issues again, in our opinion.
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The Chair: Thank you, Ms Murray. Mr Sorbara, feel free to ask a question now.
Mr Sorbara: That is the first time I have heard you say that, Mr Chairman, as I recall. Ms Murray, I am interested in a number of your comments on conscionability or on the linkage between access and support, and on the problem of the second Mrs Smith. I think I am going to take them in sort of random order. Can we begin with the relationship between access and support. I think I would agree with you that some presenters before this committee have made that submission; that is, a statement which amounts to, "I don't feel I should have to pay if I'm not getting access." I do not think this committee, nor do I suspect the new government in the province is ready to relink what the courts have delinked, I think appropriately.
But I think what they have said as well, or others have said, is, "We see the government taking yet another step to make support more effective or to make the enforcement of the support order more effective, more automatic," and the government says, "We will therefore deal with child poverty, etc," but some of the people who are being denied access say, "Well, okay, but there is also an access order and the government not only is not taking any steps to help us to enforce that access order when the order is violated, but the previous government had a law passed after a lot of consultation and the new government just said: `Forget it. We're not doing it.'"
I think that is their concern, or at least that is the concern I have heard from some members of the committee "While we are talking about support and access and we want to continue to pay support, we are being denied access and the government doesn't seem to be very interested really, because probably we are not important politically, in helping us enforce those rights."
Ms Murray: I understand what you are saying and I think maybe I will let Ms Curtis answer your question.
Ms Curtis: I practise family law in Toronto as well. We also did a brief on the access enforcement bill, some of the same people, and it was very clear and it was very interesting to me that this was the first time in my practice that the bar was so universally opposed to a piece of legislation as it was to that access enforcement bill.
There are tremendous statistics available about the serious problem of support enforcement. Even now, after the provincial government has invested $11 million to $14 million on that program, they have only made a 10% dent in the compliance rate. In three and a half years the compliance rate has increased by only 10%. On the other hand the previous government put forward a bill based on absolutely no empirical data that I am aware of. I have never seen any empirical data about access as a problem or access enforcement as a problem.
It is interesting too that the real problem with access is not denied access, quite frankly; the real problem is conflicted access. Most conflicted access now is resolved by telephone calls between lawyers, or sometimes if people are really grown up, by the parties themselves. The issue of denied access in some families is such a complicated, difficult, unhappy issue that frankly I am not certain the legal system can ever fix it in some small percentage of the families, and if there is a way to fix it in the legal system that bill was not the way.
Now I do not want to take the focus away from support enforcement, but I would urge you that if you are concerned about this area, to revisit the submissions that were made to the justice committee that looked at that bill; the lawyers' groups that came to the committee were universally opposed to that legislation.
Mr Sorbara: I just want to say that I understand how political lobbying works. I happened to be the minister responsible for women's issues at the time and did a good part of the negotiating of the terms of that bill, and I simply want to differ with you.
I agree with your assessment that the nature, that the problems relating to access are very difficult and cause great concern between the parties and sometimes can be very harshly disputed, and I would not ever want to submit to you that Bill 124 solved all of those. But it did put in a few important valves and a few opportunities to have those matters perhaps reconsidered, and it had provision in it, by the way, for the access order to simply be denied; that is to say, to be wiped from the books. In any event, I agree with you, I do not think we should discuss it. I just wanted to make the point in response to the support and access issue.
I hear you saying the very same thing that this government is saying about making it universal and therefore something that is generally accepted; that is, the automatic deduction order. I see the issues surrounding support to be not quite as difficult as the ones surrounding access, but difficult as well, with a lot of emotion and a lot of sentiment built into it and not as simple as being solved by an automatic deduction order.
Let's take your example of the second Mrs Smith. There was an order outstanding against Mr Smith that had been rarely complied with. What was it about the current system that prevented a garnishment order against his salary to be put into place and those payments regularly collected from his employer and paid to the first Mrs Smith, if I have got my characters in this play right?
The Chair: Before we go on to that, which is of course the subject of Bill 17, I am wondering if Ms Curtis could define for us, because we have had some question, what the distinction is between conflicted access and denied access?
Mr Sorbara: We could have that when you are questioning the witness.
The Chair: If you would not mind.
Ms S. Murdock: Just on that point, Mr Sorbara, when someone is speaking and is responding to the question, if you do not know, and I am claiming ignorance or whatever, but it is a little tough to understand and I think a clarification question is not out of order.
Ms Curtis: There is a lot of hostility and animosity in some separating families. Some of that will abate with the passage of time and some of it will never go away entirely. It is an unusual family for which even, say, three years after the separation, access is smooth and easy all the time and there are never any disputes over access.
Sometimes those disputes take place at the transfer point, when the people have to have contact with each other. Sometimes they take place on the telephone because the child has hockey this weekend and does not want to go away for the weekend. Really, all I am saying is that conflicted access is pretty normal for separated families. It is not ideal and we all wish it did not happen, but it is very unusual for a family to say to you, "We've been separated five years and access has been easy and smooth always."
The fathers who say that they are denied access may in fact be being denied access, or they may be in families where there is so much hostility and conflict between the adults that the children no longer want to pursue a relationship with the father because it is just so unpleasant if they do. The children are sick of being in the battle zone, if you like.
The Chair: Thank you and I apologize for the interruption.
Ms Murray: Can I just add one thing to that? I think, and I do not want to make this into a discussion of Bill 124, but the Canadian Bar Association -- Ontario's and our problem with it was that we, in our experience, saw most of the access difficulties as really problems that required a social worker and not a judge. What Bill 124 did was give open access to the courts, much more access than people in a lot of other situations had, and we thought that would exacerbate the problem and not solve it. I know there are differences of opinion on that, but that is why.
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The Chair: Could we return to Bill 17.
Ms Murray: To Mrs Smith? Okay. You are right that in a system that was not overloaded, Mr Smith could have been garnisheed. A writ of seizure and sale could have been placed against his house and have proceeded more aggressively, and there are lots of Mr Smiths who I see. I think that is part of my point. I suppose the other way to handle the problem is to pour more and more and more money into SCOE so that we can handle every single one of these cases on an individual basis. But if you have a system where you know from the beginning where the source of income is so you get it set up in an automatic way for, let's say, even 50% of the people, including maybe Mr Smith, then the people who are real problems can be dealt with.
Mr Sorbara: I guess it surprises me to hear that from you and the reason is this: There is general agreement that the system is overloaded. In fact the development of this proposal, initiated by a previous Attorney General under a previous government, was seen as a systemic change, an administrative change to deal with an overloaded system, a pretty strong measure to deal with a system that was not able to cope. It was not an answer to child poverty or an answer to family poverty and to mother and child poverty, but just a systemic, an administrative change to a system pretty draconian, because you are, with a broad brush, bringing a whole universe of payers in where many of them, perhaps 20% or 30%, would pay in any event.
My problem is that in these committee hearings and within the ministry there is not an acknowledgement that this is really what we are doing. We are trying to save money at SCOE. We do have an alternative. We could spend more money at SCOE and enforce these things more effectively. I am worried about that and your support of what they are saying, because the administration of the branch, at least initially is going to become far more severe as it deals with a far larger paper burden. It is going to be dealing with every single support order now. There are going to be no opportunities to opt out, and we will discuss that in a second.
With your own experience of this branch, do you honestly believe that, absent additional resources, the ability to handle all this new paper and all these new problems associated therewith -- remember, by the way, that just because you have an automatic order does not mean it automatically happens. It means there are more disputes. It means there are employers who baulk, there are employers who do not understand, there are employers who make mistakes, there are employers who, for example, make a deduction that is too high and pay the money and the debtor or payer does not get the size of his paycheque, and then who has a right and all that has to be worked out.
It is easy to say ask the income tax department and it is easy to say there is automatic deduction at source, but the truth is that the Department of National Revenue now is a huge department which makes lots of mistakes and takes thousands and thousands of bureaucrats to administer. My problem is that --
Ms Murray: I am losing track of your question.
Mr Sorbara: My question is this: Do you honestly believe that with the added ability, added right, added obligation to collect all this money and disperse it, we are really going to change attitudes of people, and second, that we are going to have a system that helps the people who are not being helped right now?
Ms Murray: Yes.
Mr Sorbara: That is the question.
Ms Murray: I am not going to comment about the costs. Obviously I have not sat down and analysed the relative costs of this, but, yes, I believe that if it becomes universal, it will become less stigmatized.
Mr Sorbara: Do you believe there should be no provision for payers and receivers who have established a working record to ever be freed from the system?
Ms Curtis: That should not be the test. A good payment record should not be the test. Are you aware, Mr Sorbara, that 75% of support orders are in default, that the people with the good payment records are totally in the minority?
Mr Sorbara: Hold on a second. I am aware that in about every account that I keep with every one of my creditors, I am periodically in default -- income tax department -- and I believe that 75% to 80% or 90% of the people are in my situation.
The Chair: Mr Sorbara, your financial concerns are not open to examination here, sir.
Mr Sorbara: Hold on. I am going to be coming --
Ms Murray: This is talking about giving dependent children and wives a bit of a priority over Avco.
Mr Sorbara: No, I hear you.
Ms Murray: I think we should do that.
Mr Sorbara: I am going to tell you that --
The Chair: Excuse me. Mr Elston, you had a question, I believe.
Mr Elston: Yes, a couple.
The Chair: Perhaps you could limit it to one, without too much preamble.
Mr Elston: Oh, God.
Mr Carr: I will give up some of my time.
The Chair: Go ahead. Thank you, Mr Carr.
Mr Elston: The second Mrs Smith issue brings an interesting problem to the fore which we really have not examined very much. The first Mrs Smith ought to have had her order enforced; it ought to have been. You are now acting for the second Mrs Smith and, I presume, the children of that marriage. We have always assumed that it is a simple case of one separation, one family, and sort of making provision for the children of that first union. We seem to have dismissed the fact that when we talk about having children out of poverty, we do not just talk about the children of the first marriage, the split marriage or union, but we also talk about the children of the second and ensuing.
For you as a solicitor, a barrister, it becomes a difficult test as to how you make proper arrangements now for the children of the second union with Mrs Smith. How do we ensure that this bill reacts fairly to cover both the first separated spouse and children, and the second, if you can? Because there is no question as between the equity of the rights of those children of the two now broken marriages, and the possibility that there could be children of a third union.
Ms Murray: Sure, and these are problems that family court judges have to deal with all the time and so do we. This act does not have to deal with it in any particular way. I do not think it affects this act. I will tell you that what Mr Smith should have done when he went ahead and had other kids, if he thought he could not afford to pay for the first children, was go back to court and say, "I want a variation on my first support order."
Mr Elston: That is a tough argument to make, though. I have been in a situation where I have seen that done and people do not usually give him too much of a break. They say, "If you had the commitment to your first family, then you shouldn't be back here, having chosen to have a second union."
Ms Cohen: That is where the issue is. The issue has to do with how much support he should be paying, and this bill is not about how much support he should pay family 1 or family 2.
Mr Elston: But it is about this, because if you have an order under SCOE and it is already existing and you are now, Ms Murray, approaching the bench for another order where SCOE is already taking up to 50% of the cheque, where do you find the flexibility to issue another order on this person's paycheque, if he is already paying or deducting for one group of dependants and now you apply for a second group and already the 50% thing is reached? How do we make sure this thing can work? Do you know what I mean?
Ms Murray: I think Ms Cohen is answering your questions. I think the problem you have is how much money he should be paying and with respect --
Mr Elston: No, I am asking how SCOE enforces. If the first order has already reached the 50% level of his wages and you are representing the second, where do you get SCOE taking any money on the second one?
Ms Cohen: The bill is dealing with that issue and we have actually commented on it in our submission. The bill is dealing with variation issues. You are talking about varying support orders. The bill deals with variation of support orders.
Mr Elston: But is that not a difficult argument to make to a judge, that in the first case children of the first union are entitled to $100 a week, okay, and now that the second union has broken, those children likewise should be getting $100 a week, we will say, just to keep it simple? The total now is $400 a week and that represents 85% of the take home. Who do you reduce?
Ms Curtis: This is a very serious problem in family law.
Mr Elston: It is.
Ms Curtis: It is a very different problem from this bill, but judges every day have to deal with families where there is not enough money to go around for the three sets of children, and three sets is not unusual. What happens where there is not enough money to go around is that everybody suffers equally. That is probably the only fair way to do it. Where there is enough money to go around, we hope everybody benefits equally.
But this is something that is being addressed in variation applications all the time. It is worth you knowing this, though, that a huge percentage of variation applications are triggered by enforcement, that a lot of debtors who have not been paying and are somehow attached by SCOE in one way or another suddenly decide it is appropriate to seek a variation of the order.
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Mr Elston: For a couple of reasons: One, they probably did not want to spend the money in the first place, if they did not have to pay it. The other is that if I happen to represent the first Mrs Smith, in Ms Murray's example, you representing the second, I presume that somehow I would want to be at the trial of the issue about support. Am I given that opportunity on behalf of the first Mrs Smith?
Ms Murray: That can happen.
Mr Elston: It can happen? But it also could equally happen that Mrs Smith 1 might be advised that she has received a variation or that a variation of her payment of support for her child could have taken place in her absence?
Ms Curtis: No, no, no.
Mr Elston: Okay. So that will not take place.
Ms Murray: I think Ms Curtis's point is that judges do this balancing act --
The Chair: Are you aware --
Mr Elston: I just have one other question, with respect to --
The Chair: Excuse me.
Mr Elston: This is an important issue.
The Chair: They are all important.
Mr Elston: Language. You have come here and said it is difficult to understand, and I happen to agree with you, but in fairness to the people who draft, how do you prevent litigation when you change the whole style and presentation of legislation? It is generally viewed by judges, they become comfortable in seeing it, and when somebody brings a new term into the courtroom, if somebody wished to be litigious in nature or wished just to hold things up, you would take a look at clause whatever and you would start litigating it. Do you have some specific places where you think we could help the drafters, rather than just saying it is complex?
Ms Cohen: We did address it, actually, in our brief. Basically what we are looking for is consistency in wording and reorganization so that similar issues are dealt with in single sections or close to each other rather than at different places, and so on.
Mr Elston: So it is really correlating some of the provisions much better, bringing them together, shortening it, as opposed to the actual language?
Ms Cohen: And when you bring them together and you look at them, you start to see the inconsistencies that are there, and that is why I think another look has to be taken at the draft.
Mr Elston: And it is in here someplace?
Ms Murray: Yes.
Mr Carr: I had two questions, but I will cut it down to one. I will do the one that I think has the shortest answer. We had the National Association of Women and the Law here earlier today and they said some of the variations could take a year. Another chap was in and he said it could be two years; it depends on the jurisdiction, and I guess most are in Toronto. For any type of variation to take place, what would the average time be, just based on your experiences?
Ms Murray: It can be up to a year. It would be unusual for it to be two years. If we are talking about a support variation, it can take place in three months.
One thing that is important for all of you to understand is that in the current system it is not always in the interest of the debtor to advance his variation application. A very typical scenario is that a payer is not paying or is not paying the full amount. SCOE finally catches up with him. He goes to family court on, let's say, a default hearing, because they do not know where he is working so they have not garnisheed him, and says: "I moved in with a woman who has two children and I have to support those children now. My debts have gone up, so please don't enforce this order against me completely. I'm going to bring a variation application in Supreme Court" -- because these usually take place in two different courts -- "right away." And he may get a family court judge who says: "All right. I'll only enforce half of the order against you, and I'll adjourn this for three months, so you can go to legal aid and you can start this variation application."
Mr Carr: But if it goes to Supreme Court, would that not be a long period of time?
Ms Murray: No, it is not necessarily a long period of time. It sounds fancy, but there is a summary proceeding in Supreme Court.
Mr Elston: It helps for billings.
Ms Murray: The three months rolls around and the guy comes back and you find he will have a lot of excuses why he has not proceeded, and he may not even have started the variation application or he may have just started it the week before. So as long as he has that partial stay or suspension on the enforcement order, often he does not have an incentive to proceed with the variation application.
One of the recommendations we make in our brief is that when you are looking at putting some sort of -- there is a variety of names it is called in Bill 17 -- partial suspension, stay, variation on a support deduction order, it should be made a condition if somebody is going to get that partial stay that he has commenced his variation application already, so that you make sure the real problem is getting dealt with quickly.
Mr Carr: But in Toronto you could be looking at a year, maybe even a little over, for something like that.
Ms Murray: You could be.
Ms Curtis: I think it is inappropriate to try and put an average time on it, because 95% of cases do not go to trial. Just because you start a variation, the path to a final answer for you is not strictly: When is the trial? Ninety-five per cent of cases are settled.
Mr Carr: But do they not go up to just the trial date -- forgive me not being a lawyer -- and then miraculously settle just before trial date?
Ms Curtis: No. There is a good system in place for pre-trial conferences, where a judicial officer looks at the merits of both sides, talks to the lawyers, sometimes talks to the clients and says, "I would reduce this" or "I wouldn't reduce it." Consistent with Mr Elston's comments, it is interesting how often at the pre-trial conference the judge will say: "It was not wise for you, sir, to go and have a second or third family. You have the right to do that, it's not my business, but financially it was a risky thing for you to do."
Mr Carr: That could be costly, though, I would think, any process using lawyers.
Ms Murray: It can be, but I think it is incorrect to think of trials in this system and I think that is what Ms Curtis is trying to put across.
Mr Carr: I understand about the trials. All I know is that the billings still keep going up with the lawyers, right? Even though we are talking and we are making phone calls, the billings are adding up.
Ms Curtis: It is really legal aid that is carrying a lot of the load here, because if the debtor has a real inability to pay a meritorious variation application, that debtor is going to be on legal aid.
The Chair: Mr Carr, I appreciate your short question. Do you have many more of them?
Ms Murray: Let me just add one thing, though. In the general court system --
The Chair: Mrs Mathyssen.
Mrs Mathyssen: I would like to tap into your experience in family practice. It has been said to this committee by the Canadian Payroll Association, and it has been echoed a number of times since, that parents who default do so because they cannot afford to make payments. Is that your experience?
Ms Curtis: The statistics are really overwhelming. I am sure the people at SCOE could provide you with the statistics.
Mr Carr: They cannot. They said they could not.
Ms Curtis: Ability to pay is not the issue for support defaulters. The issue is a conscious decision to prefer other obligations, a conscious choice. There is a small percentage of debtors who genuinely have no ability to pay, either by changed circumstances or other reasons, but the vast majority of debtors who are not paying have made a choice not to pay. Frankly, I am interested that the payroll association came to make submissions but they are hardly experts on support debtors.
Ms Cohen: Could I just add a follow-up? Mr Sorbara said that every month some of his creditors do not get paid, and I would bet that every month his children do get supported. When people separate, those priorities reverse: people stop paying their children and continue to pay their Visa and their MasterCard and their other creditors. That is very common.
Ms Curtis: Lenore Weitzman's statistics on this are quite shocking. In the first year after separation the standard of living of women and children declines by 76%; in the first year after separation the standard of living of men increases by 43%.
Mrs Mathyssen: It has also been said here that Bill 17 will encourage willing payers to quit their jobs, leave the jurisdiction, in order to avoid making those payments. What is your reaction to that?
Ms Murray: I find it improbable. Somebody who is actually willing to pay -- I cannot see why they would leave a secure and well-paid job in the civilized province of Ontario just because they resent having a payroll deduction made. I think there is one other thing that it is important for you to know. Most payers, especially payers who are financially squeezed, will in fact already be notifying their payroll offices that they are making support payments, because if they do that they are entitled to ask the Department of Revenue for a reduction of their income tax payments at source. What they are really doing is getting a pre-payment on the big income tax return they would get at the end of the year. So for thousands of employees already, who feel they need that extra financial relief, they are telling their payroll offices this already.
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Ms Cohen: The other thing is that we hear this threat all the time in individual cases, because we are always hearing from the wives, if they are the ones we are dealing with, that the husband has said he is going to quit his job and he is going to leave and he will never pay a cent. In fact, that is not what happens; it is a very, very rare circumstance.
Ms Murray: Those are not the people who would be paying voluntarily.
Mr Fletcher: I am just happy that you separated access and support payments. We on this side of the table know that Bill 124 was poorly negotiated and poorly written. I know you have a lot of problems with Bill 17. Does Bill 17 in your opinion mean there are going to be more and more cases going into the courts? Is it going to block the courts up?
Ms Murray: I do not know about more. Hopefully there will be less, but the cases will be about different things, like what an income source is.
Mr Fletcher: Do you see that as being detrimental to a person getting payment, just going through the definitions and ironing out little bumps that are there?
Ms Curtis: There is always a shakedown time with new legislation. We are still feeling shakedown effects from the Family Law Act that was passed in 1986, five years ago. So there would certainly be a time following the immediate passage where people would be testing the language by litigating it. That is one of the problems with using "unconscionability," for example, as the test for not making a support deduction order. We are nervous about there being judicial discretion on that point. This is in our brief, but that is a step backwards, allowing judicial discretion on enforcement, because the Support and Custody Orders Enforcement Act, when it was passed, removed judicial discretion from enforcement. Enforcement became an administrative act. Only at the wish of the creditor was the branch not involved.
The Chair: Thank you very much.
Interjection.
The Chair: If the committee agrees to continue going --
Mr Sorbara: I thought we were sitting until 5. It is after 5 o'clock.
The Chair: We are scheduled to sit until 5 o'clock, but this group has already been with us for three quarters of an hour.
Ms Murray: We can stay if you want to stay for a bit.
The Chair: Mr Morrow, you have one question? One question.
Mr Morrow: First, I would like to thank you for coming and spending your time. Most of my questions have been answered. The one I would like to ask is that you talk about how when this will go to court there will be different things fought. Would a layman's term pamphlet on Bill 17 help that situation?
Ms Curtis: Yes, it would, but it is important for the committee to know that the group of lawyers who worked on this brief have over 70 years of experience in family law, and we found this bill really hard to understand.
The Chair: Is it with the committee's indulgence that we continue? The witnesses have agreed to stay longer. Mr Mills?
Mr Mills: Mr Chairman, I think I and you and some others have an appointment at TVOntario at 5:30. I do not want to keep them late. We are going to man the telephone lines to encourage people to subscribe. It is MPP night to raise funds for TVOntario. Everybody, I think, of all parties was invited.
Mr Sorbara: I could have asked my questions in the time --
Mr. Elston: If we undertook not to bring the government down in the absence of a couple of members of the government caucus, would that help? All we are trying to do is get some information from people, that is all.
The Chair: We are addressing the witnesses at the moment, but we have the report of the subcommittee to hear as well.
Mr Sorbara: That should go pretty quickly.
The Chair: I should hope so. If the other members wish to remain, I know a couple of us have to leave. With the indulgence of the witnesses, we could go over the report of the subcommittee quickly, which I think could be done. If they are willing to remain, I think there are a number of people who are interested. Is that the consensus?
Mr Morrow: If you would move to the sub report now, I am sure the other side is quite agreeable to that, and then we can let Mr Sorbara ask his questions after that. Is that fine?
Mr Sorbara: No, I am certainly not willing and not going to ask these witnesses to stay during our subcommittee report.
The Chair: If we can do that quickly; otherwise we are in a procedural problem. We obviously would have to adjourn.
Mr Sorbara: I will write their law union and get their opinion on these questions, Mr Chairman.
The Chair: We have had some very interesting opinions. I would like to very much thank the witnesses, particularly for staying for such a lengthy period of time and giving us such informed advice. Thank you very much.
Ms Murray: Thanks for listening to us.
SUBCOMMITTEE REPORT
The Chair: We are reading the subcommittee report from last evening for the acceptance of the full committee, the report of the subcommittee meeting on 12 February.
"The subcommittee met Tuesday 12 February to discuss committee scheduling. It was agreed that the conflict-of-interest schedule for the week of 18 February 1991 be as follows."
Mr Sorbara: Dispense.
The Chair: Dispense, thank you.
"It was further agreed that professors Desmond Morton and Ian Green" --
Mr Morrow: Dispense.
The Chair: Dispense, thank you. "It is also agreed that clause-by-clause consideration of Bill 17 commence on 19 February." Dispense?
Mr Morrow: Dispense.
Mr Sorbara: Dispense with the reading; I want to discuss that last clause.
The Chair: Okay. Ms Murdock?
Ms S. Murdock: Did I hear you say 19 February for clause-by-clause?
The Chair: That is right. Tuesday 19 February.
Ms S. Murdock: I did not know anything about this. Just one second here.
Mr Elston: Neither did I and I am not available. I have other things on.
Mr Sorbara: Could you not do it at a date to be worked out by the subcommittee, like you recommended last night?
The Chair Was this not agreed to by the subcommittee?
Mr Elston: Not in consultation with the members.
Mrs Mathyssen: This is the report that was prepared by the clerk on our advice after the meeting last night.
The Chair: So the clerk prepared that with the advice of the whips of the three caucuses.
Mrs Mathyssen: At the meeting last night, yes, of the subcommittee.
The Chair: And the times that were left available for consideration of Bill 17, there is still a problem with those times?
Mr Elston: There is for me. I am not available. I have already a commitment in the riding. Understanding that I was not going to be in committee next week, I have had an engagement which is now long-standing in my constituency and I understood we were going to make the arrangements to have -- well, Ms Murdock is another person, and Mr Kwinter is another, who is not generally on the committee -- I thought that we were going to be allowed to tell you about our availability.
The Chair: The prime reason for moving it was because of Mr Sorbara's difficulty with Friday.
Mrs Cunningham: In the beginning it was.
Mrs Mathyssen: I have something worked out here. Should we hear it? All right. Now, we want to be reasonable and certainly it is very important for us to take the time to consider the presentations of the various witnesses, and of course we do not want to miss Mr Sorbara's colourful presence from committee on Friday 15 February, and the third party does have some amendments which are important to it. In other words, we want to be fair to all parties. However, the members opposite must surely be aware that finishing the clause-by-clause of Bill 17 is imperative by the end of next week. Therefore, we move that we accept the report of the subcommittee, adjourn on Thursday evening 14 February and reconvene our clause-by-clause review of Bill 17 on 19 February at 10 o'clock.
Mr Elston: Will we have an opportunity to discuss this?
The Chair: That is essentially the time we have here, is it not?
Mrs Mathyssen: Yes.
The Chair: Okay, thank you. Mr Sorbara.
Mr Sorbara: Mr Chairman, with all due respect, l think that rather than a nice speech in rhetoric, we could work this out. We could agree on a time. If it is the view of the government whip on the committee that this bill has to be done clause by clause, I would like to know more about that. I would really like to know the urgency. What is going on? I mean, I can cancel my stuff for the 20th or you can do it without me.
I have the feeling that nothing we propose or nothing we recommend is going to be considered anyway, so it maybe does not really matter. If you would just even tell us that; if you would just say to us, "Look, none of your amendments is going to be considered, so don't bother."
Mrs Mathyssen: That is not what I said at all.
The Chair: Excuse me.
Mrs Mathyssen: I said we want to hear from you, and because you cannot be here on Friday, we are going to dispense Friday and we want --
Mr Sorbara: But Mr Elston could not be here --
Mrs Mathyssen: -- the third party to have time for its recommendations.
Mr Sorbara: Irene, just let me finish. Okay?
The Chair: Sharon? Ms Murdock?
Mr Sorbara: Mr Chairman, might I just finish? Rather than just having a piece of paper with a date given to us based on the government priorities, if we could sit down, you and me and the Chair and the whip for the Tories, and work out a reasonable date, I think that would be great. I do not know why we have not done that. That was the heart and soul of my recommendations; that is, that we would not do it Friday but we would do it on a date that we worked out. Now, you went to your whip, I guess, or your government House leader and said it had to be done next week. This is news to us.
The Chair: Excuse me. If I might interject, there are two considerations here. One is that we are meeting for three weeks. Next Tuesday, whether we are meeting to consider conflict-of-interest guidelines or this legislation, we are scheduled to meet on that day. Now, the clerk suggests that one of the things we could do would be to hear from the Premier on Monday next -- that is, Monday the 18th -- who would be introducing his guidelines and would be spending some time before the committee, and that the other scheduled witnesses would be deleted so that we could consider this legislation. We can pick up the conflict-of-interest issues at a later time, possibly after the House has resumed.
Mr Sorbara: Why is it that we cannot sit down and discuss that on a reasonable basis? My preference is to not do clause-by-clause during this week, or at least not decide on this week until I have had an opportunity to sit down with my colleagues Mr Elston and Mr Kwinter, who have been here through these hearings, and figure out a day when they are available. That is all. You have not even asked Sharon when she is going to be available on the 19th. Is everyone available on the 19th?
The Chair: What I suggest, as we have had difficulty with this timing and with the timing of the Premier's guidelines, is that the subcommittee deal with this issue and attempt to achieve a resolution and the subcommittee, in turn, report back to us. I would suggest, seeing that there are some major difficulties -- you want to confer with Mr Kwinter as well as Mr Elston -- that you give the opportunity to do so at a later time. Yes, Mr Morrow?
Mr Morrow: Can I ask that the government caucus for two minutes on this, please?
The Chair: Yes, certainly, we can. We are out of session. We will resume in two minutes.
The committee recessed at 1714.
1721
The Chair: I would like to suggest we have not reached a resolution. We have adjourned briefly and it appears to me, without hearing from any caucus, that there is no resolution of this issue. I would suggest that the subcommittee find a time to discuss that and conference with the other members of their caucuses and attempt to secure a time next week, next year, next month, preferably as soon as possible.
Mrs Cunningham: We will make a call to Charles Harnick, which is our great concern. There has to be two of the three, that is my problem right now. I do not know what his schedule is.
The Chair: Could you endeavour to pick a date as soon as possible so that we can have that by end of day tomorrow?
Mrs Cunningham: Yes.
Mrs Mathyssen: Friday is off for sure? Friday is cancelled?
The Chair: No.
Mrs Mathyssen: Trust me.
The Chair: Mr Sorbara is the one who did not want Fridays.
Ms S. Murdock: Can we agree that Friday is gone?
Mrs Mathyssen: We agree that Friday is gone.
The Chair: Okay, we have at least agreed that Friday is gone. We have not agreed to anything else.
Ms S. Murdock: We agreed on that but now it is to find another day.
The Chair: I would like to adjourn until 10 o'clock tomorrow.
The committee adjourned at 1722.