CONTENTS
Tuesday 26 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
Afternoon sitting
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
Kwinter, Monte (Wilson Heights L) for Mr Chiarelli
Murdock, Sharon (Sudbury NDP) for Mr F. Wilson
Sutherland, Kimble (Oxford NDP) for Mr Fletcher
Wessenger, Paul (Simcoe Centre NDP) for Mr Winninger
Also taking part: Elston, Murray J. (Bruce L)
Clerk: Freedman, Lisa
Staff:
Revell, Donald, Legislative Counsel
Roux, Denis, Legal Advisor, Legislative Counsel
The committee met at 1006 in committee room 2.
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.
Section 1:
The Chair: We are dealing with clause-by-clause on Bill 17. Where we left off last evening was on the government amendment which is on page 3 of the copy which the clerk provided you.
Motion agreed to.
The Chair: Mr Wessenger moves that subsection 1(3) of the bill as printed be amended by adding the following as a definition in subsection 1(1) of the act:
"`Provisional order' means an order that has no effect until it is confirmed by another court and includes orders made under subsection 18(2) of the Divorce Act, 1985 (Canada), sections 3 and 7 of the Reciprocal Enforcement of Maintenance Orders Act, 1982 and section 44 of the Family Law Act, 1986."
Mr Carr: I just wanted to, if I could, get some of the rationale behind the particular amendment from the parliamentary assistant.
The Chair: Mr Carr, do you have the annotated --
Mr Carr: Yes, I have got it on the right-hand side and maybe he could just go through it with us.
Mr Wessenger: Okay, basically a provisional order, as I understand it, is not in effect until it is confirmed by another court, so this is to clarify that we are not enforcing orders that do not have legal effect. As we require either an interim order or a final order, we also need a provisional order that is confirmed. So in effect that agrees with the present situation that our courts do not enforce a provisional order until it is confirmed.
Mr Carr: And in the actual bill, what page is that on so I can just get the wording?
Mr Wessenger: It is subsection 1(3) and this is an additional definition, the definition of "provisional order."
Mr Elston: May I just have a bit of a clarification? I know you want to clarify the provisional order issue, but I do not quite understand why you are taking the pains to deal with this when you told us during the hearings that you would accept an agreement between the two parties that an order of the court should be amended without those people having that amendment to the court order being approved by the courts. Can I understand what the practical effect of this decision is, particularly when, in some cases when provisional orders are made, it is often with the consent of the parties? It does not have to be, but it is often.
Mr Wessenger: No, a provisional order, for instance, in the most usual case would be one that is an order from another court, another jurisdiction, and it is provisional until it is confirmed by the Ontario court. So it is important. Under the present situation we would not enforce an order of, for instance, British Columbia, until it has been confirmed in Ontario. At that stage, once we have confirmed it, then the whole procedure will kick in. So it is to clarify the fact that we would not start enforcing an order from another court until it had actually been confirmed in Ontario.
Mr Elston: Okay, so it would have nothing to do with any kind of a voluntary situation necessarily.
Mr Wessenger: No, it is nothing to do with a voluntary situation. It has to do with an order made by another court. There could be, for instance, a dispute by Ontario residents with respect to the amount of arrears owing by the foreign -- well, the out-of-province court order. So we want to protect --
Mr Elston: "Foreign" may have more correct application later on.
Mr Wessenger: It may have some more correct application later on, but we want to ensure that Ontario residents are protected. In other words, this is really for the protection of the payor, basically. This is to ensure that the payor is protected against --
Mr Elston: Not necessarily. It also has protections for whoever is situated in Ontario. The payee might very well be protected if the provisional order made some kind of an outrageous claim about the ability of another person to pay, for instance, on lack of evidence-
Mr Wessenger: That is right.
Mr Elston: -- from the Ontario resident, for instance. Okay.
Motion agreed to.
The Chair: Mr Wessenger moves that section 1 of the bill as printed be amended by adding the following subsection:
"(4) Section 1 of the act is amended by adding the following subsection:
"(la) An individual, a corporation or other entity does not cease to be an income source solely because of a temporary interruption in the periodic payments owed to a payor."
Mr Elston: When, then, is an income source going to cease to exist? When does the interruption become more than an interruption?
Mr Wessenger: When it is not a temporary interruption in the sense --
Mr Elston: What is temporary? If I am a construction worker, for instance, I may be on the site for two months and then I will fall out of the employ of that person and be assigned to another organization but I might very well be back in another month to work for the same organization. Is that temporary? When I go on assignment, when I go on a work list, I rotate among the employers and I might work for the same general contractor several times during the course of the year.
Mr Wessenger: Temporary. That would be temporary as --
Mr Elston: Then you end up having a whole series of employers having to make nil returns for an extended period of time. I do not understand that, because that is a whole series of different problems. If I happen to be a large construction contractor and I go through a work list of individuals on a union list, for instance, you are going to ask me to keep reporting on a guy who has fallen out of my work schedule --
Mr Wessenger: I think there would be a practical way it would be dealt with, like --
Mr Elston: Okay, what is it?
Mr Wessenger: -- the employer would fill out normally a form for unemployment insurance. If he specified "layoff" on that then he would still cease in my opinion to be an income source. But if it is termination, then of course it would --
Mr Elston: That is not practical. When people go on construction lists they fall in and out of the work for a particular employer on a regular basis as the workforce is required. I may stop working for Monte but I may very well be assigned to another employer. I may end up with Mr Carr. And you are telling me that means, as an employer, Monte has got to keep reporting on me even though I am working with Mr Carr's organization? That could be a wild series of reports, and it does not sound very practical to me. It really does not. That is the way organizations work, practically work. And you could end up having four different employers perhaps reporting on my whereabouts and making nil returns.
Mr Wessenger: I think the intention is to catch more the situation where it is a temporary interruption of --
Mr Elston: Listen, that is what the intention is, but I am telling you about an example that is not practical. I know what your intention is. But how can you ask people in that type of activity to keep reporting on a person who circulates through a list like that? I may work in several different locations for the same employer or a branch of his operation or whatever, but I may end up back at the same employer. I am not under contract solely to that employer.
The Chair: I believe Mr Wessenger is getting consultation on that very point, Mr Elston.
Mr Elston: Sure, that is fine.
Mr Wessenger: The obligation of the income source is to notify of an interruption. That is correct. That is the first obligation.
Mr Elston: I have no quarrel with that. That is right.
Mr Wessenger: And then the income source has an obligation to advise of resumption.
Mr Elston: That is true, but in this case --
Mr Wessenger: And during the period where there are no payments made there is no reporting requirement. It is only on the resumption of employment that there is the obligation again.
Mr Elston: How do you know when I resume? As soon as I come back into his employ? But you are going to make the employer carry the onus, the responsibility, for reporting when this person's name comes back around on the work list. Once I am in there I am the obligation of that employer. He never ceases to be an income source then and his obligation will carry on for ever, even if I only come back perhaps in six months.
Mr Wessenger: This would obviously be a question of interpretation. I am not being the judge --
Mr Elston: I understand that --
Mr Wessenger: -- but you are asking me to be a judge --
Mr Elston: You are the person who is responsible for laying down how this is going to work. I am asking practically, if once I am on Monte's work list and he knows I am going to come back because I appear in his workforce regularly but not solely --
Mr Wessenger: But it would be obvious where you have a construction company that uses the same --
Mr Elston: It is not going to be obvious --
Mr Wessenger: No, let's say that uses the same pool of labour, the same people basically, and calls them back, that is obviously a temporary interruption.
Mr Elston: But that is not how it always works, Paul. You have to understand that I go on a work list. If I am terminated at one site, I will go back on a list to be assigned to the next available position. I might be with Mr Carr, I might be with Mr Mills or I might come back to Mr Kwinter's workforce. But it sounds like when you talk about an interruption that Mr Kwinter would be obligated to report me whenever I come back. The fact is that I might be back in two months; I might be back in a year. But for all he knows I could be back in two weeks if he had to do another recall of labour. In my view there have got to be better guidelines as to when you can say "Mr Kwinter can write Elston off as an obligation to report" on whether or not I come back. You just cannot keep him on as an income source for a couple of years. Maybe the amendment should have a time line on it. If I do not work again in Mr Kwinter's operation for, what? -- three months, or maybe six months, he could then cease having an obligation to report on my whereabouts or my status. Otherwise, you end up with a tremendous amount of paperwork that has to follow my activity. He has got to keep me on active file. He in fact does the paperwork that is also being done in your office, in the office of SCOE.
Mr Wessenger: I think maybe I will ask for a five-minute adjournment so that we can discuss it with the legislative staff.
Mr Elston: Sure, that is fine.
The Chair: Recess, five minutes.
The committee recessed at 1021.
1029
The Chair: Mr Wessenger.
Mr Wessenger: Yes, I am going to suggest that this amendment be stood down with unanimous consent to be reconsidered after staff have had a chance to review --
Interjection: Agreed.
Mr Wessenger: Thank you.
The Chair: Does that have agreement? Yes? Thank you.
Agreed to.
Section 2:
The Chair: So we move on then to section 2 of the bill.
Mr Sorbara: Mr Chairman, there is a Liberal amendment, if I might just read it into the record. I move that section 2 of the bill be amended by adding the following subsection:
"Section 2 of the act is amended by adding the following subsection:
"(3a) In discharging his or her duties, the director shall provide information and service, as the circumstances may require, equally to payors and to persons entitled to receive payment under support orders, custody orders and support deduction orders."
The Chair: The clerk would like a clarification.
Clerk of the Committee: In the last line you read "and support deduction orders." You left "or support deduction orders."
Mr Sorbara: I am sorry, "or support deduction orders." My contacts are dirty this morning.
The Chair: Any discussion on this amendment, questions?
Mr Wessenger: I have some problems with this amendment because I think what we are trying to do is put in legislation, operating principles, and I do not think we should have operating principles in legislation because I think it would create all sorts of potential for future litigation. I am advised by the director of the branch that the policy now is to provide neutral information to both parties.
There are certain restrictions, of course, on what the director can provide because of confidentiality, and I feel that if we put this type of amendment in, you are raising the spectre of all sorts of litigation and attack in the courts against the agency and making the program less effective.
Mr Sorbara: Before the parliamentary assistant to the Attorney General comes to a final conclusion on what he thinks about this motion, I would just ask him to go back to some of the concerns that we heard during the public hearings.
I am trying to increase a little score. I want him to be able to record that we listened to what we heard during the public hearings about the way in which this branch, soon to be called something other than SCOE, deals with people; and this is one of the things that we heard. I am sorry that my colleague Mr Elston had to leave. By the way, he is just doing voluntary service here. As you know, he does not sit on the committee, but he is very interested in this bill and as a result of what he knows, after years and years of trying to deal with these matters in his constituency office and after what we heard here during the public discussion, he has asked that this amendment be included.
What does it say? It says simply that you just treat people fairly and equally. I do not think that makes this act operational. I thought the New Democrats were the party of fairness and equality. That is what they billed themselves as during the campaign -- Agenda for People, no longer operative, by the way, but that is okay. Even if you listened to the throne speech; all sorts of nice words about fairness and equality. Here is a section that just says, "Will you please, Madam Director or Mr Director, depending on who it is, just treat people fairly?" Do I get the sense that the New Democratic Party members on this committee are going to vote against equality of treatment and fairness of treatment in this matter? I should hope not. This, by the way, Gord, is one of those situations where government committee members are allowed to disagree with the parliamentary assistant and respond to what they heard from witnesses who testified to us during the public hearings.
Let's go over it again. "In discharging his or her duties, the director" -- now remember that the director is the individual responsible for the administration -- "shall provide information and service," that is what the director does, information and service, "as the circumstances may require, equally" -- the operative word is equally -- "to payors and to persons entitled to receive payment under support orders...."
I think this is a provision that would be operative in any event under the freedom of information act. If there is information about you personally, an individual payor -- it should be debtor, but I will use payor -- or a person entitled to receive payment, that information and that service should be available equally. To vote against this or to turn this down, I think would be a rather inappropriate response from the New Democratic Party and the government members to what they say they would like to do.
This is not just operational, as the parliamentary assistant suggested. This puts a duty upon the director to ensure that there is fairness between the parties. You cannot write nasty letters because you think it might be politically appropriate to do that. You have got to treat people fairly in this system. My goodness, if government is not about trying to establish fairness in arbitrating even among competing interests, what is it about? Equality. Just treat them equally, be fair to them. Listen to their case. If you are a debtor or a payor, you do not get the second-class treatment.
Now, unfortunately, many of the people entitled to support have been getting not only second- but third-class treatment. That is because of how desperately under-resourced the branch is. But if there is a duty to treat people equally and fairly, that means you have got to give the debtor or payor the same opportunity to make his or her case before the director and the director's employees, obviously, as you do the person entitled to support. So is it so terribly difficult? Is equality such an unfamiliar principle that you are going to vote against it? No, I hope not. The parliamentary assistant said, "Oh my goodness, we can't have this, we'll be in court." So what? If someone wants to go before a judge and say, "I was treated unfairly," if that person loses the case, he has to pay the court costs. So it is not as if everyone who gets a nasty letter is going to go before the court and say, "I've been treated unfairly." It is just, treat them equally. It is not a bad idea. If you were the director and you were giving instructions to your administration and your employees, would you not want to say, "We want to treat all people fairly and equally here"? I think if you said anything else your ability to actually carry out your responsibilities would be suspect. What is wrong with putting it in the law? Mr Elston, when he suggests that we do this, is not speaking through his hat. He sat on these committees as an opposition member for a long time. He has been responsible for many years in the delivery of government programs. I do not think he is creating undue litigation. If there is undue litigation, maybe it is because SCOE is not treating people equally and maybe that is yet another good reason to put it in the law.
So I call upon the members of this committee to think about this again, and not just take your marching orders from the guys who operate behind the scenes. If you really want to let fresh air into this place, if you really want to be different from the 37 parliaments that preceded you, take a step now, vote for equality, for God's sake, and tell the parliamentary assistant that you are going to make up your own mind on this.
Mr Carr: I am going to disagree a little bit with the parliamentary assistant. I think part of the function of the government is to give direction, and notwithstanding the fact that we have a director who is sitting here who probably would do a great job, I think there needs to be some direction sent down from the government on certain issues, and I think this is one of them, where sometimes it is important to set direction and to talk about equality. So I think it is a very good amendment and I will be voting in favour of it.
1040
Mrs Cunningham: Just a question: What is the main objection to this?
Mr Wessenger: My main objection, personally, is that we have a situation now that people do not sue the government because of dissatisfaction with its service in any area. We have a mechanism for dealing with dissatisfaction with government service. We have the political process to deal with dissatisfaction with the bureaucracy. We also have the Ombudsman as a method of dealing with it.
What you are doing in this instance by putting in this type of provision is that you are creating a legal right, and a legal right with respect to only one government department, not all government departments.
The criticism about the enforcement branch could apply to any department across government from time to time. When you listen in your constituency office, there are all sorts of government ministries that you get complaints about, sometimes justified, sometimes not justified.
To create the whole concept of a legal right against government, I think, is wrong. I think we have a political process to deal with government. I think we have the Ombudsman to deal with government. I also have a strong feeling, and this is a personal feeling, that we have a lot of problems created in our courts in our administration of justice, as it is now with the Charter of Rights and the additional costs imposed on us, taking money away from health services and social services. This is a further expansion of the whole question of individual rights, and that has a cost to the community.
I think we have gone as far as we should go in this whole question of individual rights, but perhaps with specific exceptions, but I do not want to see this whole right created to sue government because of failure of service. I think that belongs in the political realm and it belongs in the Ombudsman realm, which we have a way of investigating. I think maybe the director might also want to say something on this matter herself. So I will turn it over to her now.
Mrs E. Mills: I think it will be on a slightly different theme, but I would like to point out that the way the amendment is worded may create an expectation around the provision of information equally to two parties. What we are finding in the branch and in the program is that the rules under the freedom of information act put a great deal of restriction on what information can be given, say, to the recipient about the payor's affairs or to the payor about the recipient's affairs. We get into the realm of third-party interests. So I would only be concerned about the expectation that would be created by this wording around "equal" and talking about information.
Last, I would like to say, I go back to Mr Wessenger's very first comment, that I think this is a principle that directs how we do our business. It is an operating principle that I personally do not think should be in legislation. I think it is one that obviously I support and is in operation now.
Mr Carr: That is you as one director; another director might not.
Mrs E. Mills: I do not think another director would be recruited and pass the test if he or she did not agree to the principle of equality and fairness. So I do not think you are going to get another director in there. I think it exists at the moment. We can disagree about how well it is being implemented but I think it is there and I do not think it has to be said in legislation. I think it may need to be said in more public documents, whether it be our brochures or whatever, so that the perception is more upfront that we serve two clients, both payors and recipients. I personally do not think it needs to be in legislation.
Mr Sorbara: I cannot believe what the parliamentary assistant to the Attorney General said about "We have now had it up to here with additional rights for people in our society."
Mr Wessenger: I think it is a whole question of approach, Mr Sorbara. I happen to believe in the political approach.
Mr Sorbara: What he said is, "We've got the Charter of Rights and for God's sake, let's stop all this business of rights."
Mr Wessenger: I believe the political approach --
The Chair: Mr Sorbara has the floor.
Mr Wessenger: I believe the political process is preferable in this instance dealing with individual rights rather than the legal process.
Mr Sorbara: I cannot believe it. I hope that is not the policy of his government because it means they have turned from progressive reformists to reactionaries overnight in one election. I think, probably, when he reviews Hansard and when he discusses it with his Premier and with his minister, he is going to want to retract that and I will await that.
What is more troubling is that the parliamentary assistant to the Attorney General wanted to have it both ways. On the one hand he said, "This is an operating principle." In other words, it is administrative. It has to do with how we run the show. We should not put that in law. On the other hand, in the next paragraph he said, "This is a legal right, and my God, I've had it up to here with legal rights, the charter and all that stuff." It is either one or the other. It is not both.
I believe it establishes legal rights, and it will have an impact on the operation of the branch and that is a good thing. That is what we are elected to do.
The director suggested that we could do that in some other way. We can do that in some other way. We can just rely on the goodwill of the director. In the case of this director, it is apparent that we have that goodwill, but it is not a matter of saying, "Therefore, we ought not to put it in legislation."
The parliamentary assistant to the Attorney General says that we need not create any more legal rights for people, but the fact is, this bill does that very thing. It creates a legal right to have an automatic deduction order in favour of a person who is to receive support. If that is not a new legal right, I do not know what is. It is a massive incursion into the otherwise private relationship between employer and employee.
So to add to it this delicate little touch of saying, "Please treat people equally, in terms of provision of information, in terms of provision of service," you have a statutory obligation to treat them equally, is that so outrageous a new legal right as compared to what the substance of this bill is? Why, of course not. They do not want to do it because they are afraid that one or two people are going to call them to account. But as politicians, that is what we are here for. We are here to vest rights in our citizens so that they can call the administration of government to account.
Gord, you understand this, I think. This is not a big deal. You are not going to offend anyone.
Mr Mills: I understand it very well.
Mr Sorbara: Your friend Sutherland understands this. He is the up-and-comer. He is going to be in cabinet soon. He will want to be able to say, as a result of his time in cabinet, "I brought new legal rights to the people of my riding and to the people of this province and I'm proud of it."
Bill 208 was about new legal rights in workplace health and safety. That is what we are all about. That is what we do. We vest people with new legal rights. It is only the Treasurer who does the opposite. Today the Minister of Finance is going to have some new taxes or something. Treasurers do not usually do that, but all other ministers, particularly, my friends the attorney general of a province, the minister of justice -- all we are asking for here is a little bit of justice.
A final point: The director erroneously referred to the Freedom of Information and Protection of Privacy Act. I think legislative counsel will confirm that the Freedom of Information and Protection of Privacy Act is superior legislation. That is, it applies in the absence of any specific clause that would oust it from legislation. So this provision of information is subject always, of course, to the Freedom of Information and Protection of Privacy Act. I hope legislative counsel is nodding affirmatively.
Mr Revell: Legislative counsel believes that position is correct but, without the Freedom of Information and Protection of Privacy Act in front of him, cannot confirm it.
Mr Sorbara: That was, I think, my understanding from the very beginning on the creation of that act. If someone from the New Democrats or any party wanted to move an amendment, saying specifically, "Subject to the Freedom of Information and Protection of Privacy Act, this amendment applies, this equality of service of information," we would not find that offensive.
But there you go. This is a new little legal right just to ensure that, as we create the powerful right to intervene in a workplace, in the private relationship between employer and employee, we just say that we want people to be treated fairly and equally. I do not think that is so offensive. I do not think the director is going to have seven sleepless nights a week because he or she is under this new statutory obligation to treat people fairly and equally.
I think you should support it.
Mr Wessenger: One aspect I think is a very high concern specifically, and that is the whole question of information and whether the director can refuse to provide the information under the privacy provisions of the other act. There is going to be the perception by payors that when they ask for information about addresses and so forth and they are refused they are not being treated equally. So certainly it is going to create that perception. Certainly it is very important that the branch preserve the confidentiality of the information it has about the recipient of the support in order to keep the integrity of the program.
The Chair: Shall we vote on the amendment?
Mrs Mathyssen: Mr Chairman, I would like a 20-minute vote, please.
The Chair: You are asking for a 20-minute --
Mrs Mathyssen: Twenty minutes for a vote, a recess for --
The Chair: A 20-minute recess.
Mrs Mathyssen: Yes.
The Chair: Recessed until 11:10.
Mrs Cunningham: Wait a minute. I have got another committee that I want to get on to tomorrow and I would like to proceed. If you want to stand something down and get working on something else, as we did before, that is fine by me, but I have got work to do and I would like to move on. If you do not want to vote on this, then let's get on to the next one. Why do you need a recess?
Mr Sorbara: My friend asked for a 20-minute bell, not a recess. I think really what she is asking for is a 20-minute division bell. Is that what you are asking for?
The Chair: Yes, that is what she is asking for.
Mrs Cunningham: Okay, explain this to me. Is there a reason for this?
Mr Carr: They do not have the votes.
Mrs Cunningham: Oh come on. Let's vote. What is the problem? One, two, three, four, five, six; one, two, three, four, five. What is the problem?
Mr Sorbara: If you want to defeat equality, you can do it.
The Chair: One, two, three, four, five; one, two, three, four, five.
Mr Sorbara: Yes, and then the Chairman --
Mrs Cunningham: Why? You cannot vote?
An hon member: He will break the tie, this time. He does not want to do that.
Mr Sorbara: Oh, just run out and get yourselves some members, for God's sake. You have got a majority of 76 and 36, for God's sake.
The Chair: I understand that your request really is not debatable; however --
Mrs Cunningham: I object. I have to be here and you should make sure you are covered too. You have got a lot more people than we have.
The Chair: Would you like to withdraw the request, before --
Mrs Cunningham: I mean, let's face it.
The Chair: Your request is not debatable, Mrs Mathyssen.
Mrs Cunningham: I understand. I just wanted to know why. Now I know why. I object.
The Chair: We will recess until 11:10.
The committee recessed at 1052.
1110
The Chair: All in favour of the amendment?
Mr Sorbara: Can we just wait a second?
The Chair: We are obligated to resume at 11:10. The clerk reminds me we do not have time for further discussion.
Mr Sorbara: Just on a point of order then, Mr Chair.
The Chair: We cannot have further discussion.
Clerk of the Committee: Except for a point of order.
Mr Sorbara: Yes, that is right. You can on a point of order, Mr Chairman.
The Chair: Go ahead, sir.
Mr Sorbara: My understanding was that there was a recess.
The Chair: There was, until 11:10. It is now completed.
Mr Sorbara: Just on that point of order, my understanding on a recess is that we actually recess and then we take up the issue of whether or not we are going to have a recorded vote or a 20-minute bell.
The Chair: There was clarification on that. It was a 20-minute bell.
Mr Sorbara: You called a recess, not a vote to take place in 20 minutes. The clerk will clear that up for us, because she understands these points.
The Chair: The clerk can address that issue. I believe it was a standing order 126 request.
Clerk of the Committee: What was requested was a standing order 126 request for up to 20 minutes to bring in the members for a vote, which means that the vote would then proceed at the end of the 20 minutes.
The Chair: Thank you. All in favour of the amendment --
Mr Sorbara: I am still on my point of order. You can rule on my point of order, Mr Chairman, at the appropriate time, but let me finish. My understanding was that notwithstanding that what was requested was what we refer to around here as a 20-minute bell, you took gavel in hand and banged it and ordered a 20-minute recess. So are we about to have a 20-minute bell now, or what?
The Chair: No, I believe we are about to vote. I apologize, as Chair, for having referred to it as a recess rather than a 20-minute bell, but certainly that was what was requested.
Mr Sorbara: Okay.
Motion negatived.
Section 2 agreed to.
Section 3:
The Chair: Is there any discussion, questions or amendments to section 3 of the bill? Mr Sorbara.
Mr Sorbara: Yes, there is, Mr Chairman. I am wondering if I could just call upon my colleague Mr Kwinter to read this amendment into the record while I go out and visit a political friend outside.
Mr Carr: David Peterson is back?
Interjections.
Mr Kwinter: Mr Sorbara moves that section 3 of the act, as set out in section 3 of the bill, as printed, be amended by adding the following subsections:
"(8a) If the Minister of Community and Social Services files a support order together with an assignment to the minister of the right to receive payment under the order, the director shall only make payments to the minister to the extent permitted under subsection (8b);
"(8b) The director must have reasonable grounds to believe that, if a payment is made to the minister, the remaining income of the person who would otherwise be entitled to receive support under the order is sufficient to maintain the person and his or her dependants above the poverty line as determined by Statistics Canada for a family of comparable size in the community in which the person resides;
"(8c) Despite the assignment to the minister of the right to receive payment under a support order, the director shall make payments under the order to the person who would otherwise be entitled to receive support under it to the extent necessary to maintain the person and his or her dependants at the poverty line."
The Chair: Thank you, Mr Kwinter. Mr Kwinter moves --
Mr Morrow: Dispense.
The Chair: Thank you. Any discussion, question? Mr Mills -- Mr Wessenger.
Mr Wessenger: I would like to speak against the amendment. First of all, l think it would --
Mr Kwinter: Mr Chairman, on a point of order: I think it would be reasonable to have the mover at least explain the intent of his amendment before you speak against it.
Mr Wessenger: I am quite agreeable to that.
The Chair: You certainly have the opportunity to do so now. Mr Kwinter, go ahead.
Mr Kwinter: No, I said the mover.
The Chair: You moved the --
Mr Sorbara: No, he moved it, but I will speak to it on behalf of my party --
Mr Kwinter: I moved it on his behalf.
The Chair: On behalf of the mover, you would like to express the mover's intentions, Mr Sorbara?
Mr Kwinter: No, Mr Chairman. Again, on a point of order: when I read it I said that "Mr Sorbara moves." I was really reading it for him. He is the mover.
The Chair: We have a minor point because as I read it -- it will show in the minutes as your having moved it. You spoke and I repeated "Mr Kwinter moves." Mr Sorbara, if you would like to speak to the intent of the mover.
Mr Sorbara: I want to thank Mr Kwinter, my colleague, who is the only one who is being reasonable at this point in this committee. Mr Chairman, the government members had a very difficult time accepting, and in fact defeated a little amendment dealing with equality -- very disappointing. They could have just stood up. They have forgotten already that they are here because just --
The Chair: Mr Sorbara, may I remind you we are not speaking to that amendment which was just defeated, we are speaking to the amendment which your colleague just made, and comments about an amendment which has been defeated are no longer in order.
Mr Sorbara: I simply bear with the interruptions from the Chairman and when he is done I will continue. The New Democratic Party members defeated an amendment which was a simple one. I just want to remind them that they are here not because they have the blessing of Howard Hampton or Howard Hampton's parliamentary assistant or Bob Rae, for that matter; they are here because more people voted for them in their ridings than voted for the candidate with the second largest number of votes. So they are going to have a terribly difficult time with this amendment because this amendment really is substantive. This amendment deals with child poverty.
Remember Howard Hampton's announcement in the House when he introduced this bill? Do you remember our response? Do you remember the response of the Progressive Conservative Party? Howard Hampton, in his statement to the House when he introduced this bill, said something like, "Mr Speaker, later today I will be introducing amendments to blah, blah, blah, blah, blah." Then he starts talking about child poverty. This is the government's effort -- first effort, only effort -- to deal with child poverty: "We want debtors to pay. Now we are going to call them payors, so we want payors to pay so that children will not have to go hungry; so that primarily wives will not have to be chasing after their defaulting husbands, either through SCOE or in spite of SCOE or with the assistance of SCOE."
If I learned anything during the hearings on this bill I learned once again that this issue of child poverty, and the very difficult circumstances that some women find themselves in after a separation, are very severe and I do not know how many of you -- Kimble, you were not here for the hearings so you were not able to experience first-hand some of the submissions that were made. Some of them were very legalistic and could have been made directly to the ministry, but some of them really did tell a story and some of the submissions that we got by mail, by letter, written submissions, really told the story. Some women said: "Please pass this bill, we need it." Others said, "How dare you interfere with my relationship?" But the debate was joined and that is what we are here to do as elected officials, to arbitrate between these competing interests.
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The Attorney General said, "We want to deal with child poverty." My colleague, Mr Elston, said: "I have an amendment that will deal with child poverty. Here is an amendment and it has been read into the record by Mr Kwinter. We worked together; Murray drafted it, this is his idea; I am the whip. I am supposed to read it into the record, but I could not be here so Mr Kwinter did it. "There is nothing wrong with that, Mr Chairman. It all worked out. We are on the right subject.
Mr Elston says: "Let's deal with child poverty. Let's not let the government attach the money that is collected by SCOE if the woman who is to receive it, or the individual who is to receive it, is on social assistance, until such time as that woman is living above the poverty line." Read the amendment. It was read to you. Look at it again. It says, in effect, let's keep money flowing to the woman and her children until such time as she is living above the poverty line. Then the Ministry of Community and Social Services can come in and take by assignment the funds that are coming into SCOE. Yes, she will be getting more than she deserves under the law. She will be getting not only the family benefits that are provided under the law, but she will be getting more, something good will be happening. She will emerge out of a life of poverty into what we describe as a minimum level of respectable life in this province. Surely the government members believe in that.
SCOE does not want this and now the Treasurer does not want it and Community and Social Services does not want it, but that is not the question here. The question is whether you want it, whether we want it. Mr Elston wants it. He told me that this is for him the sine qua non of his participation. The government said it wanted to deal with child poverty. He said: "I understand how government works and I have got a way to do that. Let's not let Community and Social Services take these funds coming in from the payor, the debtor, until such time as we are satisfied that the women and her children are living above the poverty line." Great amendment. Pretty good, Murray. Good thinking. Let's see whether the Attorney General really believes that his bill has to do with child poverty or whether he is just saying that. Does he really believe that this amendment should be defeated and can he still say that this bill deals with child poverty? Give me a break.
There is an opportunity here to say, "Government, keep your hands off that money until that person entitled to support and his or her children are living above the poverty line." That is what the amendment does. Legislative counsel has put it in legal language. It refers to and puts an obligation on the Minister of Community and Social Services, on the director, but the fact is that it benefits the individual entitled to support and her children.
We have an opportunity to strike out here, abandon the discipline of our caucuses and say, "We're just going to do this for these women and their children." That would be a great idea and we support it. I support it. I am going to vote in favour of it. I think it is very creative of Mr Elston to put at least one little provision in this bill that will substantively and in dollars-and-cents terms change the lives of some individuals in this province. We are here to make a difference. Elston says, "I want to make a difference." That is why he has put this amendment forward and that is why you have an opportunity to really make a difference, vote on it, support it and make this bill a living, breathing memorial to your time on this committee and the witnesses that you heard speaking so passionately about the troubled circumstances in which they live.
Mr Wessenger: I would speak against this amendment. Just to make a few comments on Mr Sorbara's comments. He says our existing bill does not deal in any way with poverty. I would beg to differ with him. I think if we have a more efficient collection process and we collect a higher percentage of support payments, that will have a positive impact. I agree that this will not solve the child poverty issue; it is not meant to solve the child poverty issue, it is really --
Mr Sorbara: Tell the minister that.
Mr Wessenger: It is really meant to deal with the problem of support payment, to make more efficient and workable support payment provisions.
With respect to the amendment, first of all from an administrative point of view, it would be difficult to deal with; but that is not my main objection to it, the administrative aspect. My main objection to it is that I happen to think that the whole matter of poverty should be dealt with through the whole SARC provisions and the implementation of those provisions. That is where we should be looking if we are going to deal with the whole question of poverty. We should deal with the question of poverty for all people and particularly all single parents and not deal with one particular group. What this amendment does is to create inequality between different recipients.
Mr Sorbara: That is right. You supported inequality last time, in the last amendment, so at least be consistent.
Mr Wessenger: This creates inequality between certain recipients. The person who receives support would get a higher income than the person who is not paid support or the person who is paid limited support. So we have different classes and levels of payments to people in economic need, and I think that would be only creating dissatisfaction throughout all society. We should look at the whole question of poverty and attack poverty directly, which I fully support, rather than to just pick out a small class of people and give them an additional benefit ahead of other people. In a sense of need, probably the person is worse off who receives no support through the court, or receives a small support payment through the court, than the person who receives a reasonable support payment through the court. So, on the whole basis that this creates great inequality and it deals with only a small aspect of poverty, rather than dealing with the whole thing in the way it should, l would have to speak against this amendment.
Mr Elston: Although I did not really buy the line by the Attorney General when he was here, and by his assistants, and by yourself and some of the other people who came in to say that this bill was a shot against child poverty, I put my mind to trying to create some provision in this bill that spoke to the issue of child poverty. This is the only way that we can turn this bill, which is really only a bureaucratic aid, into something that speaks to being an effective tool to fight child poverty.
Your reasoning about the creation of inequality among classes is specious. It is absolutely felonious. I just do not understand how you can sit there and say that, because we are allowing people to be paid to the poverty line, that creates a different class of citizen. What you are doing now is allowing people who are paid below the poverty line to have money deducted from their paycheque that they would have received from their spouses; you are allowing that money to be deducted and paid directly to the wealthiest organization in Ontario, the consolidated revenue fund, at the expense of men, women and children who live in need of food and shelter allowances. How you can advocate that when this is a practical way to at least help those people -- this does not take necessarily every individual who has an assignment to the poverty level. All it says is that, if they are receiving money below the poverty level, you do not pay the Treasurer of Ontario, you take the money and give it to those people to bring them closer to the poverty level. If they are getting social assistance, it does not mean that they are above the poverty level; it means that they are approaching it and this extra money from a private source, not even from a tax source but from a private source, can be collected by the Attorney General's department and paid to the men and women and children who need it to pay for food and shelter.
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This is a provision that actually goes to the issue that you people have been trying to manufacture for sale to the public on this bill. This does fight child poverty. This guarantees that the Treasurer, the consolidated revenue fund, takes only after a person is at least paid to the poverty line. I do not know how you can sit there and say, "We'll deal with it through SARC," after you have dealt with the hearings in committee and also in the Legislative Assembly on the introduction of this bill as though this were a piece of your war against child poverty, as though this were an essential part of the armament which you are using to destroy one of the greatest villains in our society, a wealthy society.
Yet what you people are doing through other amendments which have been presented is making sure that you have to deal only with the easy collectables through SCOE, that you only have to deal with paying the Treasurer of Ontario when you should be making that money payable to people who are below the poverty line. You persist in making the argument that this is a tool in the fight against poverty. This is a tool to collect money for the government. You people are reaping the benefits of a bureaucratic piece of legislation designed to help yourselves.
Why can you not just take a look at this as government members? I know Paul has his orders from the Attorney General and the department, but the other members do not. Why do you not see this as a way of supplementing the individuals who actually need some money to pay their rent and to pay for food? Would this not help those people that now go to food banks?
Mr Sorbara: Hear, hear.
Mr Elston: We have social assistance payments and people are entitled to those payments, to a certain level. But surely this is a private source of funding. It is not going to cost anything for the consolidated revenue fund. Just let them keep the money, let them keep the money up to the poverty level, then pay the Treasurer.
Mr Poirier: Well said.
Mr Elston: Then pay the Treasurer, but do not tell me that you have got to pay the Treasurer first just because there is an assignment out there and then come in here and berate former governments, both Tory and Liberal, for not taking steps to eliminate child poverty. You are on the horns of a dilemma, do you do what the Treasurer wants, ie "Pay me as much money as you can from those scoundrels and do not give it to the people in need," or are you going to go with what would make this a better and more socially responsible bill, that is, let the director make the payment up to the poverty line? Give the director some real presence in this legislation. That would be of some help, and this amendment will give you a reason for claiming that it is a shot against child poverty. If you do not do something like this, you have not got a leg to stand on.
Mr Carr: I have a perfect example of something that this speaks to, and I want to thank first of all Mr Harrison, wherever he is, for helping me out with the problem. I had a gentleman that came into my office and he was under a garnishment order from unemployment, and he came into my office because he had no money. By bureaucratic error they took all his money and we had to rush him over and help process him through the social assistance program to get money. In other words, they were taking from somebody that had virtually no money to pay the rent and to actually pay for food. This is what this amendment gets into in subsections 8a and 8b, the fact that we are taking some money from some individuals on the one hand that cannot afford it. And this is a perfect example.
Actually, what happened is he came into my office and I came out to see what all the commotion was about on Friday there. He was so upset because he had this garnishment order, and through a mistake he had virtually no money to meet the rent that was coming due over the period. I guess it was coming due on Friday and we had got an emergency meeting with social assistance again on Monday to try to get him some money.
So we are in a situation now where we are taking money from the ones that can least afford it, and if this government -- and I guess I was one of the naive politicians who believed the Attorney General when he stood up and talked about child poverty -- when you talk about helping alleviate some of the problems for some of the more disadvantaged in our society, if he truly believes in what he said, then I think the government should be supporting this amendment. Mr Elston has taken a lot of time to put this together, to draft it very clearly.
I guess you are right in the long term, you know; provisions like the SARC provisions and so on are what we are going to do in the long term, and if we are really going to talk long term, how are we going to give the people of this province the skill levels to be able to compete with the rest of the world so we can move people out of this terrible dilemma that we are in? But the Attorney General said himself that it is a first step and this amendment will be an even bigger step if it is passed by this committee, and I am hoping that some of the members on the government side will look at it and say, "It might be a small step in the overall scheme of things and it might only help one portion of the society that is not getting enough out there, but it will take a step towards helping those people." I am going to find it very difficult for any member who can talk about trying to eliminate child poverty that could actually vote against this amendment.
Mr Sorbara: I say to my friend, Mr Carr, that it is very well said and I think he makes a very good point. I hope some of the government members are going to speak to this. If they are going to vote against it, I think they have an obligation to tell their constituents through Hansard why they are going to vote against it.
Just let me say a couple of things, Mr Chairman, apropos the remarks of Mr Elston and the parliamentary assistant to the Attorney General.
The government members should realize that this is a right-wing piece of legislation. The bill, all in, is a terribly right-wing, draconian bill based on American models which were designed to save the government of the United States of America and state governments money.
I am not kidding about this. Look at the history of the development of this sort of legislation. You know who it first applies against? They started off only with welfare recipients. It did not apply, and in many cases, still will not apply to people who are earning their own income, just welfare recipients. If it is a welfare case, by God, we are going to go in and attach the salaries and automatically deduct and reduce our welfare costs. Read the history of the bill. Ms Swift, who is the counsel to this committee, prepared some research for us and she makes the point right in there that it started off as a right-wing initiative by right-wing governments in the US to attach salaries to reduce the costs of welfare on both the national government in the US and the state government. It is right there in black and white. If you want to look at the history, if you want to take an adjournment and read Ms Swift's research, I invite you to do so because if you have read it, you will know that that is the case.
And why? Because they thought it was horrendous that individuals were getting both family benefits -- or the American equivalent -- and also that the support money was dribbling through. Welfare mothers were getting too much money; they were getting over the poverty line. My God, this is horrendous, that money should be ours, we are paying out family benefits. That is exactly what is happening here. The big beneficiary of this bill, you better believe this, is the Treasurer of the province of Ontario, who can attach the wages now, automatically deducting money, from those people who are receiving a salary and are not paying money and their ex-spouses are on family benefits. That is what is happening. And you know what, a lot of those guys say: "She's on family benefits, why the hell should I pay? Let the government pay." But the person who is really suffering is the woman and her children.
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So Elston says: "I have got a solution. If you want to deal with child poverty, let her keep the family benefits and deduct the money automatically and let her keep that, too. Not for ever, just until she gets above the poverty line, then the Treasurer can have his money. Let's prefer the individual living in poverty to the Treasurer? Why not?"
Elston got a little stroke of genius here. Let us turn it from a right-wing bill to a progressive left-wing, NDP bill, not a bureaucratic bill. Why not? Let us have some fun here. Let us make a difference in the lives of a fewpeople.
If you do not do this, you are basically saying, "We do not care about child poverty. We want to believe the rhetoric of the Attorney General." And get this, the rhetoric of the Attorney General was drafted by the same bureaucrats who served Ian Scott and Roy McMurtry before him. Who do you think wrote Howard Hampton's speech? Howie did not write it. Paul did not write it. Bob Rae did not write it. David Agnew did not write it. No way. I know who wrote it. I had those things written for me for five and a half years, and now and again, I must admit, only now and again, I had the courage to say, "This is garbage and this is junk."
It is not always junk. We have got a good bureaucracy here. After all, they want more tools and the Treasurer says: "This is outrageous. We cannot do anything on social assistance because we have got all this leakage in the system." They call it, "leakage in the system." It is like, "The liberation of Kuwait has begun." You use that kind of language; not, "We are going to bomb the bejesus out of Iraq," "The liberation of Kuwait has begun."
You talk about child poverty, but one member of a committee offers you an opportunity to do something about it and you hang your head because, my God, we cannot really do this. The government will not allow us to do it.
Mr Wessenger said this would create unequal benefits. Of course; we have got a society based on unequal benefits. Some people earn $150,000 a year and some people live on family benefits. That is not equality, but that is the kind of society we have. He says he wants to solve child poverty and poverty with SARC. As soon as you do that, by the way, Mr Elston's provisions would not apply any more. You are above the poverty line, so the Treasurer gets his money. It is okay. This only works while the woman and her children are living in poverty. It is the only thing that you have the ability to do that will really, substantively, change the dynamic of poverty, preferring one entity over another entity. We can play with whether or not a debtor should be called a payor or we should give new rights to individuals that buy the director a little bit, but this is substantive and it is courageous and it is gutsy, and if you have any guts, you are going to vote for it.
The Chair: Further discussion?
Mr Sorbara: Go ahead, Sharon, argue against it.
Ms S. Murdock: If I may, I would like some clarification rather than to make a comment, because I am having -- and no reflection on whoever wrote this -- but I do not feel that I am a stupid person, so I am assuming then that anyone else reading this would have some difficulty --
Mr Elston: This is clear legislative draftsmanship.
Ms S. Murdock: No, I do not think it is clear because I have taken at least four times -- and I think what it is saying to me after the fourth time is that in cases where members who are recipients of family benefits and also have a support deduction order against their spouse, depending on what the allowed amount under FBA would be, would get a supplement of the support deduction amount up to the poverty line.
Mr Elston: No, it is not a supplement. The support payment is their entitlement except for the intervention of an assignment order so that they can get FBA. It is not a supplement. It is their money.
Ms S. Murdock: I am trying to look at this as if it were in place already and Comsoc would then be giving a recipient of FBA the FBA-allowable amount of money plus the amount under the support deduction up to the poverty line for an indefinite period of time. And that any amount over the supplement --
Mr Elston: Over the poverty line.
Ms S. Murdock: -- yes, over the poverty line would then revert to the consolidated --
Mr Elston: That is right. Under the assignment.
Ms S. Murdock: Yes. Okay.
Mr Elston: That is correct.
Ms S. Murdock: That is why I am having problems with this, because I think you have to read it about four times before you get --
Mr Elston: Listen. This legislation will be around for a long time and lots of people will understand how to process it. If you want to make it clearer, that is one thing. If you are going to vote against it because of that, that is totally another issue. I am prepared to let people clarify this thing if you want, but I am not prepared to go down without a big struggle if you guys are going to vote against this.
Ms S. Murdock: I guess my problem with it is in terms of Comsoc and inequality. I have listened to Mr Sorbara's argument and I guess I do not know exactly what I am thinking here except that I would like to think about it.
Mr Elston: You are trying to rationalize your way out of voting for it.
Ms S. Murdock: Yes -- no, I am not. I am trying to see why it does not sit right with me.
The Chair: Ms Murdock, are you asking that the vote be stood down or considered at a latter time?
Ms S. Murdock: If we could, may we?
Mr Sorbara: With all due respect, Mr Chair, there is a discussion going on consistent with the way in which discussions go on in this committee, and I do not think you need to put words in her mouth.
The Chair: With great respect, I have asked Ms Murdock a question. She is a member and quite incapable of being led.
Mr Elston: Mr Chair, I am prepared to agree. I think it would merit some further consideration. I am not against it being stepped down for some chatting over the lunchtime with the government caucus, whatever is worth while. I am not sure about adjourning but I am prepared to let it step down because this is an important part of this bill, for my purposes, and if that is what it takes, that is quite agreeable.
Ms S. Murdock: Mr Chairman --
The Chair: Mr Mills. I am sorry, were you finished?
Ms S. Murdock: No. Given how I often decide things, I would feel more comfortable having some discussion on this.
The Chair: Okay. So that is a request to set it aside. Yes?
Ms S. Murdock: Yes, to stand it down.
Mr Morrow: I will be supporting standing it down.
The Chair: Is there unanimous consent? Okay, so that amendment is stood down.
Mr Sorbara: Mr Chairman, just on a point of order, should we perhaps adjourn for lunch now? We have got 10 more minutes, we could just take up this matter after lunch. Were you thinking of calling it back? When you are standing it down, you are talking about over the lunch hour? You want to continue the discussion? Because we are getting into government motions now and you know these are imprimatur and they will go pretty quickly, so if you could just --
The Chair: The clerk reminds me that we have set until 2 o'clock for lunch break --
Mr Sorbara: No, no.
The Chair: The clerk reminds me that if we wish to resume earlier than that, we would need unanimous consent.
Mr Sorbara: A quarter to two, I would be happy with. I have a luncheon engagement which is going to take me right up until 1:30. I could be here by quarter to 2.
The Chair: So we require unanimous consent to return earlier than that time. What time is agreed upon?
Mr Mills: 1:45.
The Chair: Is 1:45 agreed upon unanimously? Agreed. We are adjourned until 1:45 in the afternoon.
The committee recessed at 1149.
AFTERNOON SITTING
The committee resumed at 1355 in committee room 2.
The Chair: I would like to call the meeting to order again. We left off with page 7. In this morning's proceedings we stood down a particular Liberal motion by Mr Kwinter, which is on page 7. Do we have any further discussion on that particular motion? I think we were about to call a vote on that.
Ms S. Murdock: I do not think we were ready to call a vote because I had some uncertainties. I have looked at it and thought about it all through lunch, and I think I can articulate why I am going to oppose this.
First of all, I think the principle is an absolutely and positively good one; no one could disagree with it. The problem that I am seeing -- and I guess that is why it was not sitting so well with me -- is that the Minister of Community and Social Services is the one who is going to have to make the determination to do this, not the Ministry of the Attorney General.
The other thing I have with that is that, yes, there will be inequities, but I see the role of Community and Social Services as not being one whereby it is picking up the defaulter's payments, which is what would in effect happen.
Mr Elston: That is what they are doing now.
Ms S. Murdock: But this legislation, I do not believe its purpose is that. No legislation 100% is going to catch everyone, and as much as we would like it to, as much as we would like everyone to be paying the support of their children, in reality there is no way any legislation is going to do that. I think this is probably a whole instrument itself in terms of a first step to a guaranteed annual income. That is what I see this as, and I do not think that this legislation is the place for it. On that basis I am going to vote against it.
Mr Mills: I know my colleague Gregory over there has a great delight in making me in particular feel dreadful about --
Mr Sorbara: Make my day.
Ms S. Murdock: Yes, it is true.
Mr Mills: I like to think of my position here, as well as a politician, as a humanitarian, and I listened to all what you are saying. You are supposed to enjoy your lunch but all the time, like Sharon here, it is going over in your mind. I must say that I have come to grips with my decision, and I know that you are going to say it is a copout, but I do not think it is.
I think that the manner of the support payments is not a matter for this bill or this Attorney General. I think that it is a Community and Social Services problem, and that is where it should be addressed, in my opinion. I would also like to say that I have a gut feeling that is not the way we should be levelling payments. Some are going to benefit, some are not, and I think that perhaps what we should be looking at down the road is a broader war on poverty, and that is really where we should all be coming, through raising the benefits, to grips with that. Further, the whole mechanism of this bill, in my opinion, is a little suspect, and we cannot --
Mr Sorbara: I agree with you there; the mechanism of the bill is suspect.
Mr Mills: Yes, the mechanism. We cannot look at poverty as a statistic, and I think that is how we are trying to look at it: as a statistic. I do not think we can do that because you have got some folks who live in subsidized housing, and how can you ration their payments as against someone who lives where I do in a private apartment where 50% of the income does not relate to those living costs?
I appreciate all that you have said. As I said yesterday, it is a learning experience for me, and it continues to be one, and I am very, very much pleased to hear the empathy that everyone has here for poverty and in particular children in poverty. Greg, you have made me feel terribly guilty, but I am going to support the government's position. I hope you understand why.
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Mr Elston: I remember meeting a member early on in this sitting who said, once the way around this building was familiar to the member, that decisions would be made on the basis of not whether it was in support of the government but whether or not it was in support of principles worth supporting. I am concerned that at least a couple of members have had the courage, and I underscore the members who have spoken from the NDP caucus, to tell us that they are not going to support this, for reasons which I believe are not very substantial.
To say that this committee of 12 people has no duty to take a shot at providing more money to people who are in need of money for payment for rent and for food and the very basics of clothing for children, that in fact it is the duty of Community and Social Services to pay more money at a certain time in the future when the Treasurer's budget will be full of extra pennies -- and we have heard him sing songs; in fact Mr Mills and I sat on a committee that did some pre-budget stuff; I subbed in but Mr Mills was there as a full member. It is quite clear to me that the day when Community and Social Services will be substantially increasing the amounts of money due from the taxpayers to these people in need of money for shelter and food, is a long way off.
We listened through those hearings to the Treasurer describing his plight and the plight of the government with expectations built on a paper called the Agenda for People, and how the expectations were going to have to be lined up one against the other in competition for scarce resources as a result of the recession, even though we noted that there was substantial money coming in. Today that may be again restricted by the federal Minister of Finance as he delivers his budget.
But I cannot say how strongly I disagree with the members when they say they should not take this opportunity to merely direct the director, or provide a provision in which the director under this legislation can say, "We have not reached the poverty line for these individuals and there are men and women and children in need of finances." So, as a result, they will vote against this one really concrete item that we can put in this bill that would put money in the pockets of people in need.
I cannot believe that the people here would have signed on board with the Attorney General and his department, and even some of the presenters who came and said, "This is the first tool in the fight against child poverty," when there is not one single dollar added to those people except if we catch the odd problem contributor. These people in the bureaucracy will only attack -- and we saw that in the previous amendments -- the easy collectibles. Otherwise you will have to go through the court like before.
This is a very easy section to put actual dollars in, not taxpayer's dollars, actual dollars that are destined to go to the recipients in need. We are not talking about somebody who has an award for $2,500 a month. These are not women and children who are receiving massive amounts of money. These are women and children -- in some cases men and children, but generally women and children -- receiving welfare benefits, family benefits, general welfare assistance, who are not getting enough money to go beyond the poverty level, who are not getting enough money to pay for rent. These are people who are having to resort, if not weekly at least monthly and as often as possible, to going to the food banks to get enough for their children to live on so they can get some nourishment. And you are telling me that while we have the opportunity of making a real difference in this committee to those people's lives, you would say, "Let's give it to Comsoc." All we are doing here is letting the director make a decision that those people actually need money which was supposed to go to them in the first place but for the intervention of Community and Social Services with an assignment. They are asking any payments made to the court or the bureaucracy to be paid to Community and Social Services instead of the people in need, and why? So that you can reduce the load on the Treasury of Ontario; so that you can replenish the coffers that had been dwindling as a result of the increased welfare case load.
It is nice to think in those terms that you want to help the Treasurer out, that you want to have the consolidated revenue fund available to do those nice things that treasurers and Treasury departments do at the tail-end of a year, but I will tell you that does not give one woman or child one bit more food or otherwise. You are capping them for ever at the level of social welfare benefits, unless the individual himself or sometimes herself has an award to pay an amount much, much beyond what the general assistance benefits are. I am concerned that Ms Murdock has indicated that, "You can't catch everybody." But of course this amendment does deal with everybody who is caught. If the dependants for the payor are receiving social assistance below the poverty line all I am asking is that money which was supposed to go to them anyway in the first place go to them until the poverty line at least is reached. That is not allocating new money. That is taking money that was primarily for the purpose of supporting men, women and children in need of support by the payor spouse.
I would like to have heard that there were some refinements here, perhaps to the amendments if you decided that it was not clear enough, but I think it is quite clear after having read it several times. I would have been quite willing to refine it in that way but I am not prepared to go without a very valiant struggle concerning the principles of making money available to take these people just to the poverty level. Community and Social Services will take all the money that they can get their hands on so that they can recycle it perhaps. But you are asking people in need, people below the poverty line, people in depressed economic conditions, people who are at an economic disadvantage, to pay the cost of recirculating money through the government of Ontario, and not necessarily to Community and Social Services. Do you know this money could go out to help commission a new study for a follow-up to the Social Assistance Review Committee report? It might even be worthwhile in somebody's vision. But it does not deliver one penny of money to the people who need it. And you are asking the people in need to subsidize the rest of the government's operations.
I am really concerned as well that you would rest your case on the issue of inequity. There are so many places in our society where there are inequalities. I make more money than a number of other people do in my riding. My family live in a house which is bigger than a number of other people's in my riding. That is an inequality. Some people pay amounts of money to the extent possible and are given orders for support to the extent possible, which does not take those individuals past the poverty line. But a judge and a court has decided that they are paying to the best of their ability, in which case you reduce the entire family unit, in two groups, into a state of poverty where they might just have happened to have gone just slightly above the poverty line before as one unit. There are inequalities. And for you to tell me that you believe this amendment should be defeated because it retains the type of inequalities that exist in our system is, I am afraid to use the words of one of my colleagues who spoke, "a copout."
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It is in fact a shame that we do not have the heart to make this one slight change. All it does is put in priority to the government of Ontario the women and children in need. I will tell you, taking somebody to the poverty line is not any great advantage but it sure is a help. All of us recognize that. But to tell the men and women and children of this province who are in need that they have to take second place to the consolidated revenue fund is really taking this beyond good social policy. It also sustains for me the argument which we have made on several occasions: that this bill is not about child poverty and an attack against that, but it is purely and most simply an attack against those items that are systemic barriers to an efficient bureaucracy carrying out a harvest of private funds for public purposes.
I cannot countenance that type of change of direction in this particular committee. The Attorney General appeared here, the parliamentary assistant appeared here, and both spoke about this as a tool against child poverty. We confirmed yesterday in the preamble to our meeting -- questioning from myself to Mr Wessenger -- that one of the most high-profile purposes of this bill was to attack child poverty. And when we have a chance to actually do it -- in a small way, because this does not eliminate the difficulties with which people in need are faced -- we have copped out as a committee.
When we could have had a difference and said that people come before treasurers, the government caucus has said: "We will support the Treasurer." I do not believe for a moment, Mr Chair, that these people really want to do that, because I know where they come from, a good number of them. But they are taking the government line and we were told during the elections that these people are different, that they are not politicians in the way that politicians visited this Legislative Assembly before. And I watched with great concern and with great chagrin as a number of my colleagues from a previous Parliament were savagely attacked for not having the willpower to stand up in support of principles that some of the opposition people said were paramount.
Here is the opportunity for people to be different and stand up for principles about which a good number of us believe, despite partisan loyalties. I believe that people in need, people in a state of poverty, should have every opportunity visited upon them to eliminate as many difficulties as is possible. Here is one place where that is possible, and I feel very strongly about that. I said to some people outside this committee as we broke this morning that I was prepared to see amendments made and I countenance changes, anything that would help, but that I would rant and I would rail about the movement to defeat this very sensible amendment. Whom does it injure? Whom will this piece of amending legislation injure? The Treasurer of Ontario? For how many dollars?
What were the estimates about the numbers of dollars that would go to the consolidated revenue fund? We did not have enough precision with respect to the statistics to really know, but I will bet you somebody in Treasury has a good idea of what can be expected from an increased harvest of these dollars. Those people are getting those dollars in priority to people who are living in poverty.
If you people pretend to try to continue to sell this piece of legislation as an attack on poverty, then you are very, very much mistaken and very, very much at risk. I will not use a couple of other words; I feel that strongly about this and about your efforts here to get by it.
How can you put the consolidated revenue fund first when you espouse the principles of support for those individuals in need? If you are going to move quickly enough as a government to implement the second phase of SARC and other parts of the SARC program, then you are not going to have to deal with the dislocation of the Treasurer. Heaven knows, if you are committed enough to implement SARC in all its phases, then the dislocation that this amendment will make for your finances will not be very long in duration. How much can you be at risk? As much as you think that you are at risk from your Treasury people, from your Treasurer colleague and from his parliamentary assistant and others, or from the Community and Social Services people -- of course, they do not really care anyway, because they do not get the money, remember? The money that is collected here and sent on assignment goes back to the consolidated revenue fund. Community and Social Services can have another shot at it when it is divvied up as a bit of surplus, but they do not get all the money.
But ask yourself this: What each month does the deduction mean for the women and children in need? How much can you really see them trudging down the streets, lonely often, depressed almost always, oppressed and without economic power, to go almost begging at a food bank and hoping that the material which has been donated there is sufficient and varied enough to make their diets reasonable? I will tell you, there are a few of us, even Liberals, and a few of us, even Conservatives, who think about that human aspect of people's existence. Try as we might, we cannot eliminate it all at one time. But each one of us who has a commitment to those individuals will take every opportunity we can to try and make one small contribution to the elimination of those problems.
A long journey begins with the first step. It is a long journey. But this could be a real, practical, effective first step. Small, but first. And a little bit of dynamic in it. A little bit of independence of judgement. And nothing that is going to spend taxpayers' dollars. This money is supposed to go to those women and children anyway.
I do not think it is probably worth while going on any more, except to tell you that I am surprised.
Mr Sorbara: I just have a few more words to say about this amendment. I want to begin by saying to my colleague Mr Mills and to Ms Murdock as well that I understand where they are coming from and I understand the dilemma that this puts them in. Believe me, all of us have been in these kinds of dilemmas ever since we entered politics. The difference is between what we would like to do and what we think we can do.
There was a very interesting interview with Prime Minister Pierre Elliott Trudeau. I think it was one of those fireside chats that he used to have with the CTV national news guy -- I cannot remember his name -- on New Year's Eve or around New Year's Eve.
Mr Elston: Bruce Phillips.
Mr Sorbara: I think it was Phillips, yes. And I think it was in 1971, one of these New Year's Eve fireside chats, and he was asked the question, having been Prime Minister three years or so: What was his strongest impression of his responsibilities? His answer was -- I will always remember it -- "How little I can do. How very little I can accomplish."
So our friends here in the government party on this committee are getting the first sense of how little they can really do. They are good people; they would like to deal with child poverty. They know that if they could just summon up the courage or something or other, or change the system, they could vote for Murray's amendment and thumb their nose at the way in which business has been done around here for the past 125 years. I know about how little we can do. I have had that experience for five and a half years: the difference between what one would like to accomplish as an elected official and what one can actually accomplish given the power of the systems.
To tell you the truth, what hurts us so much as politicians is the difference between what we say we are doing and what we actually do. This bill is not the only case in point, but it is just such a good example for our friends the newly elected members to start off with. Again, the whole speech of Howard Hampton on child poverty: a tragic mistake, because you got off on the wrong foot. Look at the section -- and I am going to discuss this section -- that we just skipped over that was approved without any amendment, subsection 2(1) of the bill: "There shall be a director of the child and family support office who shall be appointed by the Lieutenant Governor in Council."
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This bill changes the name of the director and the office from SCOE, support and custody order enforcement, to child and family support office. How tender, how appropriate. We say that we are doing something else but we are not really doing it. We are changing the imagery. This is the party of the environment. Do you know how many envelopes you are going to throw out because you have got the wrong name on the envelope now? Hundreds and hundreds and hundreds. But it is imagery, so it is important.
The article in this morning's paper about our committee hearings -- get this lead on the story, this is great: "The Ontario government has rejigged a new payroll deduction program to collect family support payments because it liked the ideas it got from the public and opposition MPPs, Attorney General Howard Hampton says."
Do you know what I say to that? I cannot say anything about that because it is unprintable in Hansard. Let's try "hogwash." That is nonsense. The parliamentary assistant would not even give a speech about the way in which these amendments, some 57 of them, reflect what we heard during the committee hearings. We have not even heard that speech. But I gave a speech about how I did not think these amendments did it and what did Howard Hampton do? He raced out and told the press that the bill has been rejigged -- give me a break, Howard -- as a result of what we heard.
Let's see, I am keeping score with Mr Mills and I think I am winning 2-1 as we go amendment by amendment.
Certainly this amendment that Mr Elston put forward has to do a little bit with what we heard about the real-life circumstances of people living in poverty and trying to rely on the enforcement powers -- even though we are changing the name -- of SCOE.
I think what Howard Hampton said to the press today about the impact of the public hearings was absolute nonsense. That does all of us a disservice because that is what makes people so angry. People actually read that stuff and they see that Paula Todd says, "The Attorney General said we rejigged." Then the people who took the time to come before the committee look at the amendments and say, "This isn't rejigged. This is touched up; there's a little bit of paint over this crack here. There's no rejigging. Why did they say that? Why did Bob Rae say during the election campaign that the Liberal record is one of rewarding their friends?"
Do you know how insulting that is to a politician, to say that you are elected and you are rewarding your friends? Hogwash, lies, horse bananas. And here we are again; we are going down the same road.
I want to say to you, in conclusion, that the amendment presented by Mr Elston rejigs, yes, rejigs the bill. Howard Hampton said that the bill is being rejigged, but in this case the government members are going to defeat this and, therefore, in this case at least, it is not rejigged. l submit to my friend, Mr Mills, that I am now winning 3-1.
Mr Mills: Maybe I should not have stopped you.
Mr Sorbara: I just want to make a note of 3-1 here.
Motion negatived.
The Chair: The clerk keeps reminding me and I keep forgetting to make an announcement in regard to tomorrow's meeting, which has been rescheduled.
Clerk of the Committee: Let me just clarify. The people that we had scheduled for the 123 tomorrow, we had two witnesses. One witness cancelled and instead of bringing the committee in for only half an hour, the Wednesday person agreed to appear at another date. So at this point we are starting the 123 on Thursday morning.
Mr Sorbara: And what, may I ask, are we doing tomorrow?
Clerk of the Committee: That is up to the committee to decide.
The Chair: Mr Wessenger moves that section 3a of the act, as set out in section 3 of the bill, as printed, be struck out and the following substituted:
"3a.(1) An Ontario court that makes a support order which provides for payment of support on a periodic basis at regular intervals shall also make a support deduction order for the payment of the periodic support ordered.
"(2) A support deduction order shall not be made in respect of a provisional order.
"(3) Before making a support deduction order, the court shall make such inquiries as it considers necessary to determine the names and addresses of each income source of the payor and the amounts paid to the payor by each income source.
"(4) If the support order is sought on consent or by way of motion for judgement or if the making of the support order is uncontested, the persons prescribed by the regulations shall give the court the particulars described in subsection (3) and such other information as may be prescribed.
"(5) A support deduction order shall be made even though the court cannot identify an income source in respect of the payor at the time the support order is made."
Mr Wessenger: What we want to make clear is that the order for payment of support on a periodic basis is made so that the support deduction will apply in that case on the same terms.
The other aspect is, we want to ensure that the courts make inquiries that they deem appropriate to determine the names and addresses. The reason this was put in is because there has been some concern expressed by the judiciary with respect to clarity.
Subsection 3a(4) requires that in the court the information will be provided without having to attend personally, so we can get information without requiring personal attendance.
Subsection 3a(5) makes it clear the support deduction order is made even though the support deduction order would be inoperable at the time. This is so there is always a support deduction order even if there is no income source at the time the original order for support is made.
Mr Sorbara: My first question is to Mr Mills. Can he identify the testimony that we heard during the public hearings that is the basis for these amendments?
The Chair: Your question is to Mr Mills?
Mr Sorbara: He does not have to answer it.
Mr Mills: I think this was from the judiciary. It was not from the public; right?
Mr Sorbara: I think that is right.
Mr Mills: So I cannot pick up 3-2, you see.
Mr Sorbara: No, you cannot. It is going to be 4-1 at the end of this round, I think.
Mr Mills: I think ultimately the score will depend upon the perception of the bill by the public, the people who vote.
The Chair: The gentlemen who want to play tennis, perhaps we could --
Mr Wessenger: I should add that the Canadian Bar Association raised the question of uncertainty with respect to what would be ordered to be paid. So this was also in response to the Canadian Bar Association.
Mr Sorbara: I understand why the government is bringing forward this amendment. It obviously makes the system work slightly more efficiently. I notice that the wording has been tightened up and the phrase "at regular intervals" modifying periodic payments has been included in subsection (1) of section 3a here. I guess there was a discussion about that during consideration of the inclusion of the definition of provisional order, so I will not get into that discussion again.
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Subsection 3a(3) really is a rather interesting subsection, and I think probably warrants some discussion and some reconsideration. Let's go over it again. "Before making a support deduction order, the court shall make such inquiries as it considers necessary to determine the names and addresses of each income source of the payor and the amounts paid to the payor by each income source."
So there is the section that allows the court to squeeze the information out of the debtor as to where he or she is working and how much money is being made. This is necessary for this kind of interventionist legislation, because if you have not got the information -- remember, this bill is about using better administrative tools to get this money flowing into the government and then out of the government again into the hands of the person for whose benefit it is being paid.
But look at subsection 3a(4) and start to worry. This is where legislators ought to start to worry, because this says that, if there is no one appearing before the court, everything is going to be done on consent. We do not know whom to ask, so we are going to set out the categories of people from whom we can demand information. Remember that phrase; you will see it over and over again when the government wants to do something after a law is passed: "prescribed by the regulations." The "persons prescribed by the regulations shall give the court the particulars described in subsection (3) and such other information as may be prescribed." You know what that means? Even if there is no contest in the court, even if your lawyer is taking this application and it is all going to be settled without your appearance, your lawyer is going to have to say to you: "I need all of this information. The law says you have to give it." Not only the information about who the income source is, but -- be careful -- "such other information as may be prescribed."
I would like the parliamentary assistant to the Attorney General to tell us what that little phrase means. What else? What other information may be prescribed? After all, in subsection 3a(3) you are saying that the debtor or the payor is going to have to tell the court where he is working. That is understandable; you have to be able to squeeze that information out. But what about the next thing? What are you trying to get at? Who you are seeing lately? Have you got any travel plans? Do you beat your dog? What is going on here? What other information are they trying to get? Why is that phrase there?
I notice, finally, how draconian it gets in subsection 3a(5). "A support deduction order shall" -- not "may" or "might" but "shall;" "shall" is a very important word in statutes -- "be made even though the court cannot identify an income source in respect of the payor at the time the support order is made." So it gets filled out in blank. If you ever get a job and if we ever find out where you are working we have already got the support order. You do not have to come back. That is pretty stiff. Does anyone think that is stiff? Sharon thinks it is good. Gord thinks it is stiff. I think it is pretty stiff. I think that we are compromising civil rights here just a little bit.
I think the whole bill compromises civil rights pretty significantly. After all, the relationship between employer and employee was a private one. The state has intervened. Remember the history of this stuff, though. Remember the history: right-wing American legislation trying to cut down welfare payments. We should have our own researcher testify in that regard on this point. So surely if you are going to be right-wing and draconian you say to the court and you say to SCOE -- let us stop calling it SCOE, by the way; let us start calling it the child and family support office -- you say to the child and family support office, which has just gotten rid of the word "enforcement," that they can now have one of these support deduction orders in blank.
In other words, the guy is up there during the family law proceedings and the judge says to him: "Where do you work, sir?" "I'm sorry, I'm out of a job." "Well, where are you going to be working? Do you intend getting a job? Do you think you'll be working soon?" "Well, I've applied around but there's been nothing going. The economy's in a hell of a mess and the new NDP government isn't doing anything about the recession so I don't know when I'm going to be working." Well the judge says: "Okay, fill out that order in blank. No income source may be put, just give it to the child and family support office and they can do the detective work and if they find an employer later they can fill it in." I guess when you are intervening in the private relationship between an employer and an employee that is okay. I guess that is what we buy.
Look at the way the section used to read. Subsection 3(8) used to be very simple: An Ontario court that makes a support order other than a provisional order shall also make a support deduction order in respect of the debtor under the support order. That is not very draconian, you see, because it is a little bit vague. What about if he does not have a job? Well, uncertain. What about if they cannot get the information? Well, uncertain. So what do you do? You bring forward amendments that say, "Intervene even further." Any rights here to the debtor or payor? No. We will just fill out the order in blank and then file it with the child and family support office.
I guess, as far as this legislation is concerned, if you are going to be draconian you need this kind of thing and if you find that it does not work you will be back here next year asking for further amendments to require something further, if it is not working yet. The truth is, one of the reasons why it is not working is because these folks do not have enough money to run this office, even though you would not support Mr Elston's bill to take a little money away from the Treasurer. They do not have enough money and that is why we are having the problems that we are having.
I am not surprised, Mr Chairman, that the government is bringing forward this amendment. I have some concerns about the rights that we are giving here to the office to fill out an order in blank. It is like issuing a summons in blank, you know. We have rights in this country and governments are all about establishing rights. The Charter of Rights and Freedoms -- we are letting people off now who have committed serious criminal offences because the state could not get its act together to bring them to trial within eight months and those people are going free. We are going to put some burden on government. But over here, we take the rights away. If you do not have a job or you are not co-operating, we will fill it out in blank. Give me a break.
We giveth with one hand and we taketh away with another. But the government needs it. The government needs it because, notwithstanding that Howard Hampton gave a speech on child poverty, what we have here is legislation that is all about stricter enforcement. Those are my comments, Mr Chairman.
The Chair: Thank you, Mr Sorbara. Mrs Cunningham, then Mr Wessenger and Mr Carr.
Mrs Cunningham: I had the same kinds of questions with regard to subsection 4 and I am wondering if we could have some examples of this, "such other information as may be prescribed." What are we looking for there?
Mr Wessenger: That is what I was going to speak on, Mrs Cunningham, the whole question. This is not some draconian concept, as Mr Sorbara likes to paint it. It is really to allow the court to proceed without requiring the party to be present in court. In order to allow the party not to be present in court, there will obviously be an affidavit that will have to be filled out by both parties making the court application. There will obviously be material that will be required to be filed in that affidavit so that an order can be made without the parties appearing; and the type of information that is anticipated to be in that affidavit would be the name and address of the income sources, the amount of it --
Mr Sorbara: Just let me interrupt the parliamentary assistant. That is already covered in subsection 3. The name and addresses of the income source is already covered. We are okay with you that far. It is the "such other information as may be prescribed," that Mrs Cunningham and I have a problem with.
Mr Wessenger: I will just go through the whole information.
Mr Sorbara: Name and address.
Mr Wessenger: The amount of income received, obviously from the income source. Sometimes there will be a consent to dispensing with the deduction order taking effect under one of the sections, and it would have to be information necessary to determine if there is a consent. Second, information that the amount of security could be posted is appropriate with the section. So that is the type of information we are looking at being included. Having it included in affidavits is a way, really, to assist the parties because, when they have worked things out by agreement, there is no reason to force them to come to court. It is only sensible to have the ability to submit that evidence through affidavit.
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Mr Mills: So you know that you have checked something out if anyone has a problem with it.
Mr Wessenger: No, that is not the intention.
Mrs Cunningham: No. I have had it read into the record and I am just wondering what we did before we had this. Why is there a need to go into this kind of detail? How did it all work before? Was there a weakness in the system? Is this something that did not work? It is not something that was brought to our attention.
Mr Wessenger: We did not, of course, have the income source, we did not have the deduction, so this is a new process being brought in so that you have to have the --
Mrs Cunningham: To parallel --
Mr Wessenger: -- the parallel, the new program that was brought in. As I said, this is no hidden draconian thing. The act states that "The court shall make such inquiries." You can make those inquiries if the person is present. You cannot make the inquiries if the persons are not present, so you have to have an alternative method of dealing with it, which is by prescribing by regulation the information that has to be contained in the affidavit filed by the parties. To me it is an alternative, a simple alternative way of dealing with it.
Mr Carr: My question is on the same point. I wonder if maybe I can follow along the same line. The penalty for that would now be, what, contempt of court, then? If I said, "No, I'm not going to give that information," right now there is not anything you can do. Presumably the penalty under this is contempt of court.
Mr Wessenger: There is an obligation on the parties to provide financial information even under the present system.
Mr Carr: The penalty now -- if somebody does not abide by subsection 4 they would then be in contempt of court. Would that be right?
Mr Wessenger: Yes, possibly, if they did not provide financial information, yes.
Mr Carr: So that is our penalty. Before, because it was not ordered, nobody could really get caught in contempt of court, and now we are putting it in so if you do not do --
Mr Wessenger: No, no. Previously, under the existing legislation, if a party does not provide a financial statement to the court, they are presently, under the existing family law act -- so there is an existing --
Mr Carr: So the employer is in there.
Mr Wessenger: Yes, that is right, and, second, the pleadings could get struck out as another alternative. It would not necessarily be contempt of court, the court might decide they just strike out the parties' pleadings, in which case the person asking for the support would get exactly what they asked for instead of the determination.
Mr Carr: The court does not really have a weapon, though, to enforce it, does it, other than contempt of court?
Mr Wessenger: You mean in the sense of the income, an unco-operative party who fails to provide a financial statement?
Mr Carr: If somebody says, "No, we're not giving a financial statement," what would the court do?
Mr Wessenger: You could summons them to court. If they do not attend in court then --
Mr Carr: They would be found in contempt.
Mr Wessenger: -- it would be contempt of court, yes, that would be the normal proceeding.
Mr Carr: But that can still happen now.
Mr Wessenger: Yes, that can still happen now.
Mrs Cunningham: Just following along the same lines, if -- did you want to respond?
Mr Carr: No, go ahead.
Mrs Cunningham: Under the act that does the garnishment, is this kind of detail in that particular legislation as well? I do not know that one.
Mr Wessenger: I will let the staff --
Ms Feldman: Under the garnishment rules, what the program uses are rules of the provincial court. It does not tie into the making of this court order, and the kind of information that is needed is not necessary from the court's end of things, so because it is conditional on default, the garnishment process, the trace-and-locate is happening in the office, and this information comes to us after it is sought out or voluntarily given to the program. This type of information is not needed in order to initiate garnishment proceedings. It is needed in order to initiate the support deduction system. So the answer is no, the same type of information is not needed at the court door for garnishment.
The Chair: Does that suffice?
Mrs Cunningham: Yes, but --
Mr Wessenger: I will ask staff to correct me if I am wrong here, but in the case of a non-payment by a payor presently, if the SCOE believe that the payor had income sources but did not know what those income sources were, they could have a default hearing, in which case the payor would be obliged to provide all that information. Is that correct? Yes.
Mrs Cunningham: But none of that is written into any legislation.
Mr Wessenger: Yes, it is.
Mrs Cunningham: It is written in?
Mr Wessenger: In the existing SCOE legislation.
Ms Feldman: Section 11 of the existing act deals with financial statements and the receipt of information in the context of a default hearing.
Mrs Cunningham: Okay.
Ms Feldman: Another thing to keep in mind with respect to the support deduction order is that, because the parties are in court or because they have filed pleadings, there are requirements that are necessary in the ordinary course of that litigation: financial statements, sometimes cross-examinations will be held and transcripts received and what not. So this ties into that whole sphere of what information has to be available to the court in order for them to make these initial orders, both the support order and then the corollary support deduction order.
Mrs Cunningham: Could I ask another question on that? Going back to subsection 3g(4), another aspect here, the persons prescribed by the regulations, as we refer to regulations: What is left for the regulations, given what we are putting into this act right now?
Ms Pilcow: What the regulations mean to set out is exactly what the procedure is going to be, where there is a consent matter before the court. Generally speaking, a lot of this is dealt with by the rules of court. So whether you deal with it in a rule or you deal with it in the regulations, does not make a huge difference. What we are dealing with is procedure, as opposed to substance. What we are saying is that people will be required to provide this information to the court to enable it to make a support deduction order or to enable it to make a suspension order; and what we are saying is that we are going to provide the exact mechanism by which that information gets before the court. When the parties are there, the court just asks. When the parties are not there, we have to establish what they are going to file. Is it going to be an affidavit, will both of them file affidavits? Depending on what they are asking for, different procedures will be appropriate.
For example, if all they are asking for is support and a support deduction order, only the payor will be obliged to file information to set out the income source and the amounts required to be paid. If they are asking for a suspension on consent, both parties are going to have to say, "Yes, we consent to a suspension," what the security proposed to be posted is and why that amount of security is appropriate. The court is then again in a position to make the order which it would make in the ordinary course if the parties were there, based on the information provided by both of them. I do not think it is appropriate to put that level of detail, in terms of procedure, into the act.
Mrs Cunningham: I am just wondering if we even need what we have got now. That was the reason for my questioning what is left. I understand now what is left.
Ms Pilcow: It clues lawyers and parties into the fact that, if there is a consent order, there is going to be a procedure prescribed for what you have to do. Otherwise, people may be confused as to what they can do in that case and they may think, "Well, maybe the order isn't necessary." The fact is, it will be made and this is the way in which the information will get before the court.
Mr Mills: Under subsection 3a(5) you have got the blank support order with no names filled in. Just for my own information, how would you go about getting that? Is it up to the parties to phone in and say, "Look, I've got a job and now you can fill in that," or how does that mechanism come to be when someone does get a job?
Ms Feldman: That is one of the ways that the information will come to the director's attention. The director will revisit the file from time to time. The voluntary obligation is first and foremost, and if that is not complied with, then the director is going to be considering not only the support deduction sphere, but also enforcement alternatives, and in the context of looking for enforcement possibilities there are trace-and-locate functions that the office will do. If during that trace-and-locate function the office comes up with an employer that pays regular payments, then the support deduction order that is being made, but was not operable up to that point in time, can be used at that time.
Mr Mills: I see. So it saves going back all through the process again. It is on hand, ready for that to happen?
Ms Feldman: The payor, bear in mind, still has the option, if he can establish the grounds, to subsequently apply, if a lot of time has passed, for a suspension, or always has the option to apply for a variation if changes of circumstances have been material.
Mr Mills: I see.
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The Chair: Is there further discussion on Mr Wessenger's motion? All in favour of the amendment on page 8? Opposed? The amendment carries. I am sorry, may I remind Mr Poirier, Mrs Cunningham -- Mr Carr, I am not sure with you too -- but there is an obligation to vote on every motion in front of us. Should we go through that vote again or what do you wish?
Mr Mills: It is going to be the same.
The Chair: All in favour of the motion on page 8, Mr Wessenger's amendment? All opposed? Thank you.
Motion agreed to.
The Chair: Thank you very much. Any further amendments to section 3?
Mr Wessenger moves that subsection 3b(2) of the act, as set out in section 3 of the bill, as printed, be struck out and the following substituted:
"(2) The support deduction order shall be completed and signed by the court at the time the support order is made and shall be entered in the court records immediately after it is signed, even though the support order may not have been settled or signed at that time."
Mr Wessenger: I think the only difference in this and what was originally in the act is adding the words "shall be entered," which clarifies the fact that the order is an order of the court. So that was a clarification which makes it clearer, that is all.
Mr Sorbara: I think we need some technical assistance here. As I read this amendment, it is saying that the support deduction order shall be completed and signed by the court -- that is the support deduction order, this new enforcement tool that we have. "At the time the support order" -- which is the underlying authority upon which the support deduction order is made -- and "the support deduction order shall be entered into the court records immediately after it is signed, even though the support order may not have been settled or signed at the time." This means that the support deduction order gets completed and registered even though the court has not worked out what the support order is going to be. What happens if there is not a support order, or what happens if, as it turns out, the father is going to be supporting the mother rather than vice versa? What is going on here? How can you put into place the enforcement tool before you even know whether something is going to be enforced? This is rather bizarre.
Mr Wessenger: Let's have some clarification here. Once the court makes the order, it is an effective order, but the normal process is, when a court makes an order one of the lawyers drafts the order then submits it to the other lawyer for approval. Normally they are approved. If there is a difficulty about the form of the order, then it goes back to the judge for settling the form of the order. The fact is that many of these orders are going to contain many areas other than just support. They are going to contain areas with respect to custody and access and so forth. What happens many times, knowing the speed at which lawyers work, sometimes it is three months, sometimes it is six months before the lawyers get the order settled. It is important, as far as we are concerned, to have the enforcement procedure in effect immediately. So that is the reason for having the support deduction order filled out by the court and made at the time the order is made.
Mr Sorbara: Oh, I see, so the support order is made by the court. The judge says, "Mr Mills, you are going to pay your wife $500 a month from this moment onward for the next five years. Lawyers, you go and look after the details and write that up appropriately," and the support deduction order is made.
Mr Wessenger: That is correct.
Mr Sorbara: Now I ask the parliamentary assistant, would you describe this as a section dealing with administration or a section dealing with substantive rights?
Mr Wessenger: It is procedural, yes.
Mr Sorbara: Would you agree with me that most of the other sections and amendments that we have dealt with are procedural as well?
Mr Wessenger: Yes, many of them are procedural.
Mr Sorbara: In fact, most of the act is procedural.
Mr Wessenger: It is a procedural act.
Mr Sorbara: Yes it is, is it not? It does not solve child poverty, but changes procedures. Does this amendment arise from any of the substantive material and indeed the emotive material that we heard during the public hearings?
Mr Wessenger: Not from public hearings.
Mr Sorbara: Not from public hearings.
Mr Mills: I thought it was.
Mr Sorbara: I submit to Mr Mills that the score is now 5-1. I get two points in this one. Other than that, I care very little about this section.
Mr Carr: I just have one question. Basically you are saying you want to get it in the records, but if the money is not going to get into anybody's hands any quicker, I still do not understand --
Mr Wessenger: It is going to get in their hands quicker, because if the support deduction order was not made at the time of the hearing it would have to wait until the other court order was entered, which could be three to six months down the road, so this is very important to this bill so that we can --
Mr Carr: But did you not just say that they might not have settled on the amount?
Mr Wessenger: No, the amount is settled. The support deduction order cannot be made until the judge has made an order in court as to the amount of the support. Until the judge makes that order, there is no support deduction order.
Mr Sorbara: But you agree that in this section and the other section, the document is not settled; the guy does not have a job; there is no income source, but still the support deduction order can be made and filed with SCOE, which is going to be called the child and family support office.
Mr Wessenger: That is correct. So long as the support order is made by the court.
Mr Carr: And if there is not a job, does he automatically go into arrears then?
Mr Wessenger: It depends on whether he makes payments or not. If the person does not have an income source, he may have assets. He has an obligation to pay support to his spouse and for the child, and the person may elect to make payments directly to the enforcement branch, as many people presently do.
Mr Carr: And what are some of the reasons it would not be settled and signed then?
Mr Wessenger: Why would it not be signed? The judge makes the order in open court; it is taken down by the court reporter and then the normal procedure is, one of the lawyers goes and drafts the order and sends it to the other lawyer.
Mr Carr: Sends it out with his fee at the same time.
Mr Wessenger: That is right. And I can tell you, having practised law, I know that some lawyers are very quick; they get it done in a week. Others will take six months, sometimes even a year. I hate to say that. It depends on the efficiency of the lawyer. Sometimes one lawyer will drag it and will just not send it back for a particular reason.
Motion agreed to.
The Chair: Mr Wessenger moves that subsection 3c(2) of the act, as set out in section 3 of the bill, as printed, be struck out and the following substituted:
"(2) The director shall enforce a support deduction order in the manner, if any, that appears practical to the director and shall pay the amounts collected under the order to the person to whom they are owed.
"(2a) No person other than the director shall enforce a support deduction order.
"(2b) The director shall enforce a support deduction order, subject to any suspension order or variation, until the support order to which it relates is terminated and there are no arrears owing and despite the fact that the support order to which it relates has been withdrawn from the director's office."
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Mr Wessenger: It was put in to clarify that only the director may enforce a support deduction order. That is one purpose of it. The other aspect is, the director is only required to do what is practical under the circumstances to enforce the order, and the director can continue to enforce the order, even after it is terminated, until all arrears are collected. Often an order may be terminated because of the age being attained by the child but there may still be arrears. This will allow the director to continue to collect the arrears.
Mr Sorbara: Remember back when we passed the Charter of Rights and Freedoms in Canada, we thought we were taking a great step, we really did. We thought this was a new era of freedom in Canada. As is so often the case, when you do something there is an equal and opposite force in reaction. We passed the Human Rights Code, which says everyone is equal in this province, and then we start discriminating in our legislation. I support employment equity programs but they are clearly discriminatory, let's be frank about that. After the Human Rights Code and with special programs for this and that and the other thing, it is interesting how we do that.
Beware of the incursion of the state. We asked you a while back to consider an amendment that said the director had to treat people equally in terms of service and information and that sort of stuff. Why did we do that? Why did Elston do that? I direct your attention to subsection 3c(2) here: The director shall enforce a support deduction order in the manner that appears practical to her. In a manner that appears practical to her. The state says, "I've decided that this is practical to me." The current director, of course, is going to be fair and just to everyone, but who the hell knows who the director is going to be next year or the year after or 20 years from now? So this says she or he can do whatever appears practical. If it is practical to collect, she will collect. If it is practical not to collect, she will not collect. If it is practical to send out harassing letters, she will send them out. If it is practical to be kind to the payor but to be snotty to the person who is supposed to receive support, she will do that. We asked you to include a section which says: "Just treat people the same, okay? No matter why they come to the office or no matter for what," because we knew that this section was here to give the director very significant powers.
Again, understand legislative language as you learn your work on this committee. These words are powerful words. It does not say that the director shall abide by regulations established as prescribed. It does not say anything other than, whatever the director feels is practical, is what he or she is going to do. Ask the director if she wants to chime in here and say whether this gives her pretty free rein. I think it does. If anyone wants to make the argument that it does not, I would like to hear that argument.
"No person other than the director shall enforce a support deduction order." That is good public policy and I would support that, because it is the director's business to support it, not some stranger to the cause or the person who gets the support that he is there to enforce. It is only the director and it is only this newly named office, child and family support office, that has the right to enforce these things, so that is good, that clarifies.
When enforcement ends is a pretty interesting little statement here. What it says, in effect, is that you continue to make these automatic deductions until everything, including arrears, has been paid. They do that even if the support order itself has been withdrawn from the director's office. We had a little bit of a discussion of that, I think, during the public hearings or during open comments or at some time. I would like to hear more about that. I do not understand that. If the support order is withdrawn, why do you keep deducting money from the paycheque?
I will put it another way. If you still want to deduct money from the paycheque, how come the support order has been withdrawn? The parliamentary assistant to the Attorney General really did not explain that in any great detail. I am looking at the notes here that have been very kindly provided in this annotated version of Bill 17, and they do not help me either. My colleague Mr Kwinter points out that "until...there are not arrears owing." If that is the case, I would like to see it in law. Put it in the law, but do not say you can continue deducting even if the support order has been withdrawn from the director's office. There is something a little bit fishy about that, and I do not think we have had the straight goods on that, and I invite the parliamentary assistant to clarify that, certainly for me and for any other member of the committee who chooses to ask a question about it.
In summary, I have grave concerns about subsection 3c(2b). I think (2a) is okay, and I really do not like subsection 3c(2) because the New Democratic Party members of this committee refused to pass our amendment that would have made sure that the director was bound by a substantive duty to treat people equally. This is a draconian power, and he or she does not have to treat people equally. You have just voted that down a few hours ago. I have no concerns about our current director. I do have some concerns about who the government might appoint down the road and whether or not that person would treat people fairly.
Ms S. Murdock: I just want to make a couple of points here in terms of subsection 3c(2): "The director shall enforce a support deduction order in the manner, if any, that appears practical...." We had a lot of discussion on that after the submissions from the presenters on the last day, because initially we were looking at the word "feasible," and it was after a lot of discussion and listening to the people that were here that the word "practical" stayed. I think that is important to note, number one. But also there is probably going to be some concern and possible opposition to the idea of the arrears being collected after the support order is concluded. The reality of it is, in my view, and I think that this subsection 3c(2b) says it clearly, that if the support order concludes, for whatever reason -- whether the matrimonial home is sold and it no longer exists, or whether the custody is over and it no longer is a problem or whatever, and if there are arrears still having to be paid and are still owed, the support deduction order continues. Just because the support order concludes does not mean that the support deduction order is finished until all moneys that are owed are paid.
I just want to make those two points. I think this is really good, and I am glad that we listened, because it was a concern of mine in terms of feasible-practical. I was very concerned about that. So I am glad to see that you listened to that.
Mr Carr: I was just going to talk about the part that says, "until no arrears are owing." One of the fears that I have got is that when we come in with this legislation it may now affect -- they were making it tougher -- what the judge does. In other words, a judge will say, "Boy, by making a stake on this and giving the support too much, we're never going to get out of the arrears." It seems to me that there can be some type of concern with that, that it is now thrown back in the director's hands. What we might do inadvertently is make it so that, where right now the judge will sometimes say, "This is borderline, but I will give $100 a month," if we come in with legislation which will talk about arrears -- I do not know; maybe there is some way of getting out of it legally. I am not sure. But if we make it that tough, what we might do is, the judge says: "Let me see here, now. If we can't get rid of it until there are no arrears left, maybe I won't give the $100. Maybe it should only be $80." I do not know if that fear is just my perception of it, not being a lawyer. But I just feel more comfortable, I guess, having the decision on something like that rest with the judge rather than the director, notwithstanding the fine director we have now.
So that is what concerns me with this: that we are looking at something that basically says it is now up to the director's discretion when the support order will end. Notwithstanding that the order has been terminated, the director will not look on it until all of the arrears are basically cleaned up. I do not know if my fears are valid. It is just the perception of a layman looking at it that what we might be doing is making it more difficult. I do not know if Paul wants to speak on that and maybe help alleviate some of my fears.
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Mr Wessenger: Sure. First of all, I should say the whole idea of the legislation is not to put the discretion or the determination of the merits of a case in the hands of the enforcement branch. The idea is that that should be in the hands of the court.
Now, on the question of the arrears, the court always has the jurisdiction to make an order bearing the support. As part of that order they can cancel all the arrears if they want to. If they think it is fair that the arrears will be cancelled, they will do it. Courts generally, in fact, cancel arrears that are owing from a long time back when they see no prospect of them being paid. They generally do cancel them if they have not been collected.
Mr Carr: But do we not then get into the situation we heard about here, with the long periods of time in the courts, the one-to-two years and the $35,000 and the $9,000? On the one hand we are giving the director more power. On the other hand we are saying we want to keep it in the hands of the court. What we have got is a situation where, in order to clean up that and get rid of the arrears, we will now have to go back to the court, whereas presently we might look at it and say, "The support order is stopped," for whatever reason. "We're not going to go back." But now we will have to go back to the court to make sure that the court says there are no arrears. Would that be right?
Mr Wessenger: The way it exists right now with our existing system, SCOE does not deal with the question. If there are arrears, SCOE collects them now through garnishment and continues to collect them until they are paid.
Mr Carr: Through garnishment, but in the regular they do not.
Mr Wessenger: Yes -- or other processes. So we collect the arrears now and the enforcement branch would continue to collect them until -- there is the possibility the parties, could agree to cancel the arrears. Is that fair to say? The parties themselves could agree to cancel the arrears, in which case there would be no arrears. So they could do it by agreement as distinct from going back to court. So it is not a great problem. And it is not a major agreement. It could be a one-page agreement: an agreement for support is terminated and all arrears are cancelled, in one little page.
Mr Carr: Could I ask just one more time why we are putting this in, then, if it does not change anything?
Mr Wessenger: It is put in because an order for support may in fact terminate because of the period of time going by. For instance, if a payor has to pay support for the child until the child reaches the age of 18, the child reaches 18 and the order for support is gone. This allows us to collect the money that is owing, maybe a year back or six months or whatever it is, until they are told not to by either a court order or by an agreement of the parties. You could file an agreement of the parties and that would be recognized by the enforcement branch. It really means the support deduction orders are dealt with the same way as a support order is dealt with now under the existing situation. Right now we continue to collect arrears. It is just continuing on that program, only support deduction applies to the arrears. It is the additional tool.
Mr Carr: Putting it in there.
Mr Wessenger: It has to be put in to allow the support deduction to continue to be applicable, otherwise it would not be applicable to the arrears.
The other thing I might just reply to is the whole question of the word "practical." The word "practical" is now used in the existing legislation, which was brought in by the previous government. So we are just really continuing the same text that was in the existing legislation. There is no change and we have elected not to change the concept of the original legislation in this regard.
Mr Carr: Will the court look at "practical" as a defined term or will they look at it and say, "What the heck do you guys do with it?"
Mr Wessenger: I do not know whether it is defined. I do not think it is defined.
Ms Feldman: I am not aware of it being considered by the court, except it allows the court to look at the director's actions with respect to each particular case, which is important. So on a case-by-case basis, if whatever the director is doing is disputed by the payor or put into question, then the court would be able to say, "Well, was this practical and why?" It is very hard to actually say what is practical in a general way, because the cases vary and there are different considerations for each individual case filed with the program.
Mr Carr: What will happen is that good lawyers like we talked about before will challenge "practical" in the courts. They take a look at it and say, "Well, `practical,' what does that mean?" I do not think they were right on this one.
Ms Feldman: I am not aware in the last three and a half years of "practical" being challenged in the court and being defined in any written reasons.
Mr Carr: But if we now give the director more powers, because of putting the word "practical" in there, it might now be challenged. Before it was not, because the director did not have as much authority. Now that we are putting it in, some lawyer somewhere along the line is going to say, "She" -- in this case -- "has more power as a director, so I am going to challenge `practical.'"
Ms Feldman: It is only meant to ensure consistency between the method of enforcement or the considerations for enforcing a support deduction order and the considerations for enforcing a support order. I suppose it is true that somebody may, since "practical" now appears a second time, decide to take the director up on it, and that is the way case law evolves and is developed.
Mr Carr: But on the other hand, we argued for not putting in closure because we did not want to be challenged with it, and we said, if you remember one of the amendments, "We are not going to put that in there because the director might be challenged on that, on a legal point." So on the one hand you say, "We will not put something in because we do not want to be challenged," and on the other hand we say, "We will put it in there, and there is a good chance we are going to be challenged."
Mr Wessenger: Could I just reply to that? My interpretation of what this means, when it appears practical to the director: In effect, that gives the director the discretion to make a decision as to whether or not to enforce a support deduction order, in what manner to support it. It is giving the discretion to the director, basically. It is a discretionary right. It is not likely to be challenged that I can see unless some person felt that the director was making no effort.
Mr Carr: But what you just said that before is we do not want to take the power out of the judge's hands, the court's hands. We said the court is the one that should decide. Then on the other hand, we are saying that, yes, when it is to our advantage, we will do that, but in other cases we want to give the director more powers.
Mr Wessenger: There is quite a difference. We are talking about relating to the method of how you enforce the collection process, which is in the hands of the enforcement branch. They determine how they enforce. The rights of the parties, that is, how much support the person is obliged to pay, is in the hands of the court.
Mr Carr: But I guess the Legislature is -- my big fear is that we are the ones that are going to be accountable. The director will not be accountable really. We are the ones who are accountable in terms of what we need to put in there, and I would like to have more control over people that we can throw out every four years or whatever.
Mr Wessenger: The government is accountable, but the government gives direction to the director. It is the government of the day that makes the decision, the overriding decision.
Mr Carr: Sometimes governments change more than the people, the directors.
Mr Wessenger: It is quite true. A different government could give a somewhat different direction with the whole question of what "practical" means to the director. That is true in practically all legislation; the government directs certain policy with respect to enforcement of its legislation.
Mr Carr: Okay. The only point I wanted to make, and the last point, would be, my fear is that I do not like to give more to the director, notwithstanding the fine job that she will probably do.
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Mr Mills: I would just like to make a point that the government motions continue to reflect upon the input of the public in so far as the closing of all the possible loopholes, and I think that is commendable, Mr Parliamentary Assistant. Wonderful.
Mrs Cunningham: So do we, and we hope you will listen to us when we put our amendments forward.
Mr Sorbara: The score is now my team 4 and Gord Mills's team 2.
Mr Mills: It is going to be a rout.
Mr Sorbara: Whenever it is a draconian measure, Mr Mills unfortunately points out that the government listened; not in the ones where people have asked for a kinder, gentler treatment. I just want to refer to some comments that my friend Mr Carr made, because he made a very good point. The parliamentary assistant, in response to him, said that his interpretation of subsection 2 is that the director can enforce the support deduction order in any manner that the director thinks is practical. What happens if the director thinks it is totally impractical to enforce this support deduction order? The scoundrel is just all over the place, he does this and that, and he is just too hard to track down. What happens to Mr Hampton's statement in the Legislature that these automatic deduction orders are going to be enforced? The truth behind the bill is that they can be enforced or they cannot be enforced.
What happens if the director finds that her budget has just been cut and it is not practical to enforce a whole bunch of support orders of a certain category? The director has the ability to say: "Sorry, we are not enforcing those. You pay directly, sir."
Why do we need this here? After all those speeches by the Attorney General, why should we give so much discretion to the director? Is it for budgetary reasons? Can we hear from the director on this? Why does she need this absolute discretion? I am not just playing politics, I am serious about this. In legal language, this is very broad discretion. Why does she need this amount of discretion? Let the parliamentary assistant answer. Why this much discretion?
Mr Wessenger: Any administrative body has to make decisions when it is practical to do something, and the whole thing about this legislation is to catch those 60% of people to make sure they pay.
Mr Sorbara: No, no.
Mr Wessenger: That is the first point, to establish and collect from 60%, to raise the level from 25% to 60%. That is the first purpose of it, to simplify that process.
Mr Sorbara: Oh, my goodness, this is a disaster.
Mr Wessenger: The second point is that what is hoped, by simplifying the collection from those 60%, is then to be able to use the resources more effectively; it is the more-difficult-to-collect people. So it is a two-pronged approach, basically.
Mr Sorbara: Look, the parliamentary assistant says that we just need this sort of administrative discretion. I tell the parliamentary assistant that that is when we start getting arbitrary government. When you give absolute discretion to government, then you get arbitrary decision-making. Remember in Askov, the court just said, "No more two years waiting for a trial." That is legal rights, people that are accused of criminal offences. Here we say, "If it is too difficult to enforce, if it is impractical" -- notice the choice of the word "practical." Ms Murdock grimaces. Your office is going to have to deal with the letters that come from the director, form letters saying, "The director has determined that it is impractical..." and you have seen these form letters because you have worked in a constituency office. They come in droves from workers' compensation. Here is a discretion, so this is the way the form letter is going to read:
"The director has determined under subsection 2 of section 3c of the act that it is impractical to enforce this support deduction order. We regret to inform you therefore that these payments will not automatically be made to you.
"Yours sincerely,
"The kind and gentle child and family support office."
Do you know what kind of form letters are going to come out if the budget is reduced or if they are having difficulty or if it is a difficult case?
Interjections.
Mr Sorbara: No, I am just telling you. I am telling you what you are going to get.
Interjections.
The Vice-Chair: Order.
Mr Wessenger: The whole idea is to give flexibility of administration. That is the whole point, to give flexibility to use the best approach.
Mr Sorbara: Flexibility. Mark my words, you will get a category of cases in which the director under her discretion will determine that it is impractical to enforce, or impractical to enforce fully. You are going to get that. I am not kidding you, this is the experience of government. This is what happens. Look what Howard Hampton said after the Askov case, "There's a whole bunch of criminal cases which it is not practical to prosecute any more." Did he not? Yes?
Ms S. Murdock: It was not because it was not practical.
Mr Sorbara: We cannot do it any more. We do not have the resources to get there in time. We are going to --
Interjection.
Mr Sorbara: Oh Sharon, come on, you know this is going to happen.
Ms S. Murdock: Come on, I have read the Askov decision.
Mr Sorbara: Right. Well, you know that is what, in practical terms, the Attorney General said: "We're going to let these cases fall by the wayside."
The Vice-Chair: Are there any further comments? Mr Carr.
Mr Carr: Just to make a point: The court backlog case is a typical example. We have got rent review that is backlogged; we have got WCBs that are backlogged. And that is in effect what the Attorney General said: "With drunk drivers and sexual assault cases and everything else, we cannot prosecute them, so we are going to let them go."
We are saying, with this legislation, that is exactly what the director can do. We are six months behind now. We thought we would have it cleaned up in a year. The computer broke down. We did not get the funds for the computer. We are now six months behind, so, "Everybody, I am sorry." Form letters come out and maybe -- we never thought it would happen in the court case, we never thought we would spend all this time prosecuting drunk drivers and then spring them free.
But guess what? Five thousand of them we have done; 20,000 cases have been sprung. We always thought our justice system would be there, and we sprung them. This is the same case, and I think Mr Sorbara made the case probably better than I could. We are looking at basically having the same situation where the director, at his or her discretion, says: "I'm sorry, the system is broken, the Treasurer won't give me enough money. So, I'm sorry, we're not going to enforce it."
Ms S. Murdock: It is my turn now.
The Vice-Chair: Ms Murdock.
Mr Sorbara: You are going to get letters in your constituency office.
Ms S. Murdock: Without being interrupted by Mr Sorbara again, I would like to state pretty clearly that the practical aspects of this were considered during the hearing, and the whole intent of this, and all conversations throughout the hearings, were on the practicality of getting it from the payor, not whether it was impractical to do it through the support branch.
The question is not whether they have a backlog and it is impractical for them to do it. The question is, has the payor been paying consistently over the years? When the decision is being made by the director, does she look at it and say: "This person has been paying consistently for 15 years. It is impractical to be proceeding under this act, and we may as well leave the situation as it is?" That is everything that was said through the entire four days of hearings.
To place an entirely different construction on this is really throwing a red herring into these entire proceedings and I resent it, Mr Sorbara, because I think that you are just trying to egg us on, which you are succeeding at. But I am telling you, you are wrong and you are misleading in this entire thing. On the record, Mr Sorbara, it is incorrect and false of you to do that.
Interjections.
1530
Mr Kwinter: What we are talking about is really the crux of this whole act and I really have to take exception with the last speaker, because what is really happening, this act is nothing but a collection agency act. That is what it is. It is not what it was supposed to be and what the Attorney General said it was: to look after child poverty. This is a collection agency act, and what it is meant to do is to correct what is considered to be an inefficient system that is now in place. There are now figures ranging from 60% to 80% of those people who have support orders who are not paying them. The purpose of this act is to make it more efficient for the agency to collect.
What we are talking about is not to the point where we are saying, "If it is not practical" -- we have that now. If I were to speak to the director now and say: "What's happening with your agency? Why do you have this incredibly high proportion of so-called delinquencies?" -- the reason I say "so-called" is that I am not satisfied yet that is the right number, because we keep hearing about partial payments, some that are 35 days in arrears, things of that kind. But notwithstanding that, we are talking about a number that is considered by everybody as being unreasonably high.
What we have to do is try to come up with something that is going to improve the collection proportion. That is really what we are here for. That is all this is doing. I think that if we do not acknowledge that, we are kidding ourselves. That is really what this is. It is a method to make sure that the rate of collection is better than it is now. When you put a provision where it is not practical -- one of the problems that we have now is that if I were to ask the director, "Why do you need this legislation?", she would probably say, "Because under the old system it is not practical for me to collect. I don't have the tools, I don't have the authority."
Ms S. Murdock: Ask her. Ask her.
Mr Wessenger: I am quite prepared to have the director answer this question.
Mr Kwinter: Okay, let me just finish before that. What I am suggesting is, I think it negates the act to put that provision in there, to say, "Well, if it isn't practical, then you make the decision." We could have this whole exercise, all of these public hearings and find that we are no better off than we were before, and when we go to question, "Why aren't we any better off than we were before?" "It just wasn't practical."
Ms S. Murdock: You are pre-1987, Monte.
Mr Wessenger: I think the director would like to have a chance to say something here since we are all talking in the abstract, and we will give the person who is going --
Mr Sorbara: Only recently in office.
Mrs E. Mills: That is right. The director will say something, although I have to admit that I am not a lawyer and was not behind all the thinking that went in here. I am going to be repeating something that has been said already, but you have to remember that we are looking at the existing legislation, the old act, and now what we are doing is amending that act and we are looking at consistency.
So you have the original act, where it talked about "shall enforce," and gave the discretion at that time that said, "wherever practical," or, "in whatever manner," and used the word, as well, "practical." In those situations, if we forget deduction orders for a moment, it is not a question, Mr Sorbara, necessarily of resources or whatever. But there comes a point in time, if I -- the branch, the director, whatever word you want to use -- have the onus of "shall enforce," does that mean that for 15 years I try and locate when all avenues have not been able to bear any fruit? That phraseology allows a policy decision or directive to be given, that after you have taken certain steps you may be able to put it in an inactive file for a moment and come back and activate it later. It is that type of "in any manner," and the practicality that is necessary to make a piece of legislation workable.
When you move to this amendment and you have got a deduction order, if I take the example you were using the other day -- where this person moves around and goes into various situations -- you do need some flexibility. Initially when the support deduction order is given, if the person, he or she, is in employment it will work. But say he or she moves to something else; it is not practical at that point to use support deduction, because this is not a case where there are those regular periodic payments.
Then you move to a situation where they may move into a different type of employment and you now have arrears. You have to be able to make determinations that a garnishment or a seizure may be more appropriate than trying to enforce a deduction order. To complicate it further, it depends where you are in the cycle of an order, if we are talking about one of those circumstances where we are dealing with arrears near the end of a support order for such circumstances.
So I do not think it is a clause that is trying to give discretion to limit what they would do. It is just to allow that practicality to assert itself. I hope I have not muddied the waters further.
Mr Sorbara: I think you have muddied the waters somewhat, not completely. But before I respond to that, Mr Chairman, I do want to say to my friend Ms Murdock that in her last comment she suggested that the statements I made were false. Under parliamentary rules generally, members do not accuse other members of making false statements and generally they withdraw that allegation if an allegation is made --
Ms S. Murdock: I withdraw the "false" allegation.
Mr Sorbara: -- and if they do not withdraw them, they are generally asked to leave Parliament. I do not know how it works in committee. I am just new in committee, but I just say that --
Interjection.
Mr Sorbara: In Parliament we have a tradition of not calling each other liars or misrepresenters or anything like that, so I encourage the member for Sudbury to withdraw that, but I will leave her to reflect on that.
Ms S. Murdock: No, I already withdrew the word "false," Mr Sorbara.
Mr Sorbara: Oh, okay, fine, thank you.
Ms S. Murdock: But in terms of "misleading" or "red herring," I do not withdraw those.
Mr Sorbara: We generally do not accuse others of misleading in a committee. Red herring is all right. It is parliamentary. I do not mind. I have sent up a lot of red herrings during this committee. I think it has been a good exercise. Listen, I am an apprentice on this committee just like several of you.
Ms S. Murdock: Oh, you would never know it. I congratulate you.
Mr Sorbara: I was telling you the truth. It is my first consideration of a bill clause-by-clause.
The Chair: Is Ms Murdock's retraction sufficient?
Mr Sorbara: You should be paying attention. This is your role, Mr Chairman, to make sure these things do not happen.
The Chair: Mr Sorbara, as you are well aware, the Chair was absent during that exchange.
Mr Sorbara: No, the Chair is always in the chair. Mr White was absent.
The Chair: This particular Chair was absent. However, is Ms Murdock's retraction sufficient?
Mr Sorbara: So long as she has retracted "false" and "misleading" I am comfortable. I just want to keep up the great traditions of this Parliament and this House.
The Chair: Yes. Mr Sorbara, would you like to proceed with your point then?
Mr Sorbara: Has she withdrawn?
The Chair: She did, yes.
Ms S. Murdock: I did.
The Chair: Now, Mr Sorbara, would you like to proceed with your point then?
Ms S. Murdock: If I may have a moment, Mr Chair, I am trying to think of the context that I used the word.
Mr Mills: You got wound up.
Ms S. Murdock: Yes, I did. I did get wound up.
I certainly had no intention whatsoever of ever calling you -- I use the word in quotations -- "liar." I do apologize.
Mr Sorbara: There is no need to apologize. You just have to withdraw the remark.
Ms S. Murdock: I will withdraw it. No, I will apologize too. I have no qualms about doing that. I just think that sometimes the statements made certainly are not intended to take us off into a direction that deflects us from our principal cause. Thank you.
Mr Sorbara: They certainly are that. I am not offended at all --
Mr Kwinter: Mr Chairman, on a point of information, just so you will know, the very first time I spoke in the House, in 1985, I happened to address the then Treasurer, Miss Stephenson, and accused her of misleading the House. And the wrath of the House just fell on me and I had no idea what I had done.
Mr Sorbara: It is quite an experience.
Mr Kwinter: But it was, as I say, my very first question in the House. I then learned that it is quite permissible to say "inadvertently misled."
Ms S. Murdock: Inadvertently misled? Okay, thank you very much.
Mr Kwinter: I just thought I would let you know that.
Ms S. Murdock: That is good. It is always good to learn from the pros.
Mr Sorbara: Let's get to the substance of the director's remarks, because she argued that she needs this ability to exercise a very broad discretion. My problem is that this is a very broad discretion, and we, as a committee, would have an ability to narrow it. For example, you could say that the director shall enforce a support deduction order unless there was a particular reason for not doing it, and those reasons can be prescribed by regulation.
The Chair: Mr Sorbara, are you moving an amendment here?
Mr Sorbara: No, I am not. I am giving a speech.
The Chair: The Chair was inadvertently misled into thinking you were making an amendment to the amendment.
Mr Sorbara: Drummond, this will go easier if you do not interrupt me so often.
There are all sorts of ways in which to place a statutory discretion in a bill. The point I wanted to make to Ms Murdock is, this is the broadest that a drafter of legislation can come up with without using the words "in the director's absolute discretion." This is, practically speaking, a really broad one.
You could frame the language so that if there were a situation which came within a category of reasons, and generally one would prescribe those reasons by regulation, then the director would be absolved of the duty to enforce the support deduction order.
So the point that I am trying to make in this stupid little speech is that on the one hand, the Attorney General is saying, "We are doing great things," but when you look at the nuts and bolts of the bill, what we see is a bill which may cause the government the very same kinds of problems that the support and custody enforcement office has had for years and years.
Unfortunately, I know about this stuff. The former Attorney General was a good friend of mine and we discussed these very provisions. He said privately to me, "SCOE is in one hell of a mess and we need some more enforcement tools."
But as you create those additional enforcement tools, what you have done is create what I think is far too broad a discretion. I would have preferred to see this section put a greater onus on the director to enforce and then, yes, give her some discretion based on a category of situations prescribed by regulations which absolve her of her responsibility. Because if you do not do that, you run into the same problem of fooling people. Politicians are held in disrespect because we spend too much time fooling people. So I do not support it.
Motion agreed to.
Mr Morrow: Mr Chair, can I ask for a 10-minute caucus?
The Chair: Mr Morrow is requesting a 10-minute recess. We are recessed until 3:50.
The committee recessed at 1541.
1555
The Chair: Can we resume now, please?
Mr Sorbara: I am just wondering whether we can have a little discussion about the timetable for the rest of the day. I heard some ugly rumours just as we began the adjournment -- and Ms Murdock grimaces -- that we will be here until midnight if we do not hurry up.
Ms S. Murdock: I never said that.
Mr Sorbara: No, no, you did not say that, but you grimaced so I am apprising you of what the rumour is. I hope that is not the case. That would be very unfortunate if the government members were trying to ram this thing through by voting to keep us here until midnight.
I would like to adjourn to see the budget. I would support that. In fact, to tell you the truth, I would like to suggest that we watch the budget and then not come back at 5 o'clock, but just end our work now and set this work over until tomorrow at 10 o'clock and use the time that we have tomorrow that we were going to spend on the 123 motion of the Conservatives on SCOE.
I can assure the members that, as we move through, our party has done most of the talking that we need to do. There are a few other major amendments that we want to speak to but I know that the Progressive Conservatives have some things to say on the motions that they are going to present.
So that would be my motion: that we adjourn now, that we go and watch the budget at 4 o'clock, that we catch up on our homework between 5 and 6 and we get back here tomorrow at 10 o'clock.
The Chair: Mr Sorbara moves that we adjourn until 10 o'clock tomorrow morning. Any discussion on that?
Mr Mills: I would just like to make one point. I did not intend to sit here tonight, that is for sure, because I have other things to do starting at 6 o'clock and I cannot be here.
Ms S. Murdock: Seven o'clock is caucus.
Mr Mills: At 6 o'clock we have other things, Sharon. It may be a rumour, but I am sure it is a false one.
Mr Sorbara: Like most rumours.
Ms S. Murdock: I know that I was going to ask for unanimous consent to watch the budget and then just continue afterwards, but how long is the budget?
Mr Sorbara: It will be an hour.
Ms S. Murdock: An hour?
Interjection: And the analysis.
Ms S. Murdock: Then I have no objection to Mr Sorbara's motion.
The Chair: Mr Sorbara is suggesting that we not resume after the budget but rather resume at 10 o'clock tomorrow morning.
Mr Sorbara: The reason why I do that is because many of you will want to phone your local newspapers in your constituencies and have a comment on the budget, and you should feel free to do that.
Mr Wessenger: I will go along with what the committee wants to do. I can see some interest in watching the budget.
Mrs Mathyssen: I wondered about the time that the budget commenced.
Ms S. Murdock: Four o'clock.
The Chair: All in favour of adjourning until 10 am tomorrow?
Ms S. Murdock: Mr Sorbara, your motion is up.
Mr Sorbara: Oh, my God, I have won.
The Chair: We are adjourned until 10 o'clock tomorrow morning.
The committee adjourned at 1558.