CONTENTS
Tuesday 26 March 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
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:
O'Neil, Hugh P. (Quinte L) for Mr Sorbara
Murdock, Sharon (Sudbury NDP) for Mr F. Wilson
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 1540 in room 228.
CHILD AND FAMILY SUPPORT STATUTE LAW AMENDMENT ACT, 1990 / LOI DE 1990 MODIFIANT LES LOIS RELATIVES AUX OBLIGATIONS ALIMENTAIRES
Resuming consideration of Bill 17, An Act to amend the Law related to the Enforcement of Support and Custody Orders.
Reprise de l'étude du projet de loi 17, Loi portant modification des lois relatives à l'exécution d'ordonnances alimentaires et de garde d'enfants.
The Chair: We are back on page 26, Mr Sorbara's motion, which I think we had discussed at some length. Is there further discussion on this motion? All those in favour of Mr Sorbara's motion? Opposed?
Motion negatived.
The Chair: Moving to page 27, which is also a Liberal motion --
Mr Wessenger: We are at 26a.
The Chair: At 26a? Excuse me, 26a. Where the heck is 26a?
Clerk of the Committee: It is in the yellow pages.
The Chair: Not in mine. I have 25a.
Mr Wessenger: It is 26a.
The Chair: Okay, 26a, which is in the yellow pages, numbered 25a, if we could make that correction.
Mr Wessenger moves that paragraph 1 of subsection 3d(3) of the act, as set out in Mr Wessenger's motion of 27 February 1991, be struck out and the following substituted:
"1. The fact that the payor has demonstrated a good payment history in respect of his or her debts, including support obligations."
Is there discussion on this motion?
Mr Wessenger: This is to correct a problem, that a support recipient might wish to raise evidence relating to a bad payment history to assist the court in determining whether support deduction should be suspended. The section as drafted prevents such evidence from being considered. For example, if the payor was able to establish a prima facie case that support deduction was unconscionable, the recipient might be well advised to respond with evidence that the payor has demonstrated that he or she will only pay when forced to do so. The court is directed to consider all the circumstances in determining whether a suspension of support deduction would be appropriate. This amendment will allow the court to consider all relevant evidence.
Motion agreed to.
The Chair: Next is 26b.
Mr Wessenger moves that subsection 3d(3) of the act, as set out in Mr Wessenger's motion of 27 February 1991, be amended by adding the following paragraph:
"4. The fact that there are grounds upon which a court might find that the amount payable under a support order should be varied."
Mr Wessenger: Perhaps I should give some explanation of this. The purpose of this addition is that we think the way to deal with an order that is inappropriate is to go back and have the original support order varied rather than to deal with it under the support deductions. We want to make clear that a person should apply to the court to have the original order varied.
The Chair: Mr Harnick?
Mr Harnick: I am thinking out loud because you are going so fast.
The Chair: It is not that I am going fast.
Mr Harnick: I am going slow.
The Chair: While Mr Harnick is composing his thoughts, is there any other question on this?
Mr Harnick: I do not really understand what this section means. I gather this is one of the facts being added to the things the court will not look at.
Mr Wessenger: That is true.
Mr Harnick: And if the court will not look at the fact that somebody is trying to vary the whole support order, are you not setting up a situation where people are going to be going from judge to judge? If the whole support order, which is the basis upon which the support deduction order is about to be determined, is something that might be changed because it is under appeal or there is a motion to vary it, surely the judge who is making the order is entitled to know what is going on in another court. Unless I am reading it wrong and you can convince me otherwise, I just cannot see how you cannot tell a judge, and a judge cannot consider, that the basis for which everything he is doing is now under appeal. If that is in fact the case, I find this section objectionable, to say the least.
Mr Wessenger: I think if I understand this correctly, if a person is applying to the court for a suspension of a support deduction order, they also could apply to that same court, because it is the same court that would hear the matter with respect to a suspension of a court deduction order as would hear an application for a variance of the support order. So it only makes sense to look at the whole aspect; to correct the problem, if there is a problem, is to amend the original support order on which the support deduction order is based. If it is unfair that there be a support deduction order because of certain circumstances, obviously the order itself should be varied.
Mr Harnick: I think really what caught my ear was your original explanation. I may have heard it wrong and I apologize, but your original explanation was that you could not tell the judge, or the judge could not consider the fact, that the support order itself might be under review in another court. I believe that is what you said.
Mr Wessenger: No, it would not be under review in another court. It would be the same court.
Mr Harnick: But what if there is an application in another court?
Mr Wessenger: Why do I not let staff clarify that.
Ms Pilcow: I do not understand why you would have it happening in another court at the same level, but let's just imagine that there was a motion already brought to vary the support order. The court can know that, but in the context of an application to suspend, that evidence is not relevant. There are only a few grounds upon which a suspension can be granted. Now the court, on an application brought to vary the support order, because it is an inappropriate amount, in that context can reduce the support order and then reduce the amount that is being deducted. But you cannot get the amount that is being deducted reduced without first showing the court that the amount of the support order itself is not appropriate.
Mr Harnick: I understand that, but what concerns me is the fact that you say that the judge who is deciding cannot consider whether there is another judge deciding the issue of the support order itself. That is what I just heard you say, and it was the same thing that the parliamentary assistant said. I have some concern that it may be very relevant to the judge deciding the support deduction order problem that there is an application or motion outstanding before another judge who is deciding on the support order itself. I cannot see how you can include this section and tell the judge that what another judge is doing is irrelevant and cannot be considered. I cannot see how you can have the audacity to do that.
Ms Feldman: Mr Harnick, if I might, a judge can listen to whatever the payor wants to say with respect to a motion he might have for variation of the support order. The only thing this provision indicates is that the judge cannot, based on the grounds that the payor might be putting forward for his variation, find that to be sufficient grounds for unconscionability, and therefore that the support deduction be suspended, because if that judge did that, there would be no incentive for any payor to complete his variation application.
What might happen in the case you indicate, where there might be a corollary, two proceedings, like parallel proceedings, one for a variation and one for a suspension, is that the judge who understands that there is a parallel variation proceeding will adjourn the suspension request to be dealt with in the context of the variation proceeding, which is how things will happen in most instances, because in the context of a variation proceeding, most payors who wish to rely on the grounds will bring a request for a suspension on an interim basis. That is different. That is a judge hearing a variation application. What we want to avoid is the payor who goes to court on what should be a variation application and, instead of bringing the variation proceeding, just puts forward the grounds requesting a suspension, receives a suspension and then has no incentive to actually deal with the matter properly, and for the judge to entertain both his allegations and the creditor's allegations.
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Mr Harnick: I understand what you are telling me, but you will never convince me that you can, or that you should tell a judge that he cannot consider in terms of unconscionability what is going on in another court or what the stage of proceedings is in another court. I do not think you need this section. I think you can accomplish your purpose -- which I stated yesterday I did not like -- very well without this section.
Ms Pilcow: In fact, the reason the section was added is because one of the lawyers from the Canadian Bar Association who was consulted wrote to us following the standing committee and indicated that in her mind there was confusion as to when you would use the suspension paragraphs and when you would use the variation provisions, and there was a great concern that people would use the suspension paragraphs at a time when they should be relying on the variation procedure. So they were very concerned that that should be totally clear, that you could not vary your support deduction order without varying the underlying order. They wanted the bill to be very clear in that respect, which is why we added that.
Mr Harnick: Now that you have mentioned that letter, might we see it?
Ms Pilcow: Actually, it was given to the clerk for distribution. I am not sure what happened to it.
Mr Harnick: Might we see that letter or stand this down?
The Chair: It seems like a reasonable request. Shall we stand down this section until such time as we have all examined the letter from Carole Curtis? Agreed. We then move to page 27, Mr Sorbara's motion. Mr Poirier, if you could read that please.
Mr Harnick: Is this the white 27?
The Chair: The white 27.
Mr Poirier moves, on behalf of Mr Sorbara, that subsection 3d(4) of the act as set out in the government motion be struck out and the following substituted:
"(4) For the purposes of clause (2)(b), security shall be in such amount and in such form as the court considers reasonable having regard to all of the circumstances."
Mr Poirier: Obviously this is to give more flexibility to the court for the definition of the word "reasonable" as opposed to imposing a very formal limit on the amount.
Mr Elston: Yes. That is one of the issues we talked about when we had people appearing in front of us, although we did not have people exactly speaking to the issue of the amount, or whatever. We just believe it is probably preferable that there be some flexibility to determine under the circumstances what is available for people to file -- or at least to give a security, rather than saying in the legislation that the judges have no ability to exact from a potential payor, or from the payor I guess by this time, other than four months of payments.
From what I understand, basically this is a tool which will cover the bureaucrats' need to have some time for catch-up if somebody defaults. I can understand that they like to have about four months. The question of how much is needed is debatable, but they like to have about four months from the time of knowledge of a default until they can actually bring the person into the system if there has been a consensual and unconscionable finding, I guess, with respect to some of these payors. Hence the failure of the support deduction order to work from the very commencement of the support order's effect.
It seems to me that in all events, we have to make this bill at least reasonable in terms of its application, and that for a good number of people who are going through the experience of family breakup, the requirement of having four months of payments up front as the only option probably will be more difficult to deal with for those people who are not very well off. In fact the wealthy people will be able to afford something like this, but there is no flexibility to deal with honest people who have very few resources invested or wherever you might find funds to put in place.
It seems to me this really speaks to a very bad effect that this bill has. I do not think there is any intention or any understanding that I got, at least, that this was supposed to be a bill that was going to be more friendly for wealthy users than it is for people who are poor, but that is the effect of the section as it currently reads. I think at least you could provide some flexibility for the judge to say that they in fact go, without having to put in place four months' payment, so that they can buy their way out of the statute. I do not think it is fair.
I do not like it because it means wealthy people can buy their way out and the less well-off are going to be for ever chained with this. You either provide access to an exit opportunity for everybody on a reasonable basis so that they can afford it or you tell everybody you are not going to give them any opportunity. This whole section is a smoke-and-mirrors exercise. You do not want people out, but you put in a test of unconscionability, as I said yesterday, so that you can write your letters and say: "Oh, yes, you can get out of this if you prove there is an unconscionable relation between the imposition of this support deduction order and your particular circumstance and if you've got the agreement of your spouse. And if you've gone through those hoops -- oh, by the way, you are going to have to buy your way out by depositing on file four months of payments." And when they have very scarce resources, you are going to be asking those people to keep four months of payments tied up in some kind of trust account which presumably will not bear interest, although we have not got into that.
I would like to have some understanding, when this motion is defeated, because I can feel defeat coming on -- but in my view there will not be an allocation of a reasonable interest rate. Some paltry sum, if any, is going to be credited to these people for having these four months of resources standing in a trust account with the government.
In addition to that, if these payments are to be made and if these holdings are to be held in the office, I would like to figure out how the director is going to ensure a separation of these trust funds, because you cannot ever have intermingling of people's trust accounts, and these moneys are being received for the benefit of the payee. You have to set up a very complex system to deal with these types of payments -- and I am making an assumption that these four months of deposits are going to be in the hands of the director or her people or someplace -- to make sure that money paid by payor 1 is going to go to payee 2, and that you are not going to end up having a mixture of funds held as a four-month deposit with the government of Ontario intermingled with everybody else's funds. How are you going to keep that straight?
In my mind, that is not the important issue in terms of the primary focus of my remarks. My primary concern still is that there is unequal access based on economic power to buy one's way out of this bill. I raised it at the time we had the presentations and I raise it again now and boy, it would be nice to have an adjudication on this issue about what is rational and reasonable. We can then go in and ask for some of the material we asked for when we were having our hearings, and which has gone into the drafting, at least in a cursory fashion, of the regulations around how this organization will operate to deal with certain new provisions like this one. But I really think if we are going to penalize people for not having economic ability, then this section, as it is written, has got to be replaced with something like this one which will allow a judge to determine in her or his mind what is reasonable for people.
Remember the two circumstances or tests we have already met: One, a judge has made a finding of unconscionability. There is also a second filing of information that agrees if there is consent, as between the payor and payee, to get this far presumably. Right? Right. Nobody is nodding. At least you are awake. But my problem is, when we get this far and we ask people to pay a price, poor people cannot afford it. Remember, this is one of the most harrowing experiences people go through, and there are all kinds of problems associated with it from a human standpoint.
We talked about emotion, we talked about the problems in trying to reassemble oneself after going through this, and then you are asking a couple who probably are on meagre resources to deposit with the government four months' worth of earnings from someplace, or four months of borrowings or whatever it is. It seems to me it just is not very rational that we are taking those funds out of circulation from the family that really needs them. It just does not make sense to me and I wish I could get you to agree with this. Actually, if you had better wording I wish you would provide it to me. I am not hung up on the wording so much as I am hung up on not making it available to everybody equally. If we are looking at economic power, here is a whole statement about this bill and how it affects, or maybe I should say offends, our social, egalitarian natures.
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The Chair: You made that point from the very outset and it is interesting, actually. I would not be surprised if it was your name that should rightly go with it.
Mr Elston: Actually, our whip of this committee is the full-time member, Mr Sorbara. I sub in and out, so my role here is not as member of the committee but as subbed-in committee member.
The Chair: I am sure the motion here comes with your inspiration. Any further discussion?
Mr Harnick: This section only confirms that the intention of this bill is not to permit anyone to opt out. It is another indication that the intention of this section is window dressing only. It is virtually impossible to opt out of the provisions, and this section with security and unconscionability makes that abundantly clear. I believe you are increasing the chance of causing strife in families that can otherwise do without these provisions, but you are making it impossible for people to have the choice of getting out of these provisions who would otherwise be paying without the need to go through the hoops you are creating.
Mr H. O'Neil: Mr Chairman, before you put it to a vote, I wonder, are your members able to change their minds on this or have you made a decision, or could we hear either from you or some of your staff on some of the comments that were made by Mr Elston?
Mr Wessenger: I think the major purpose of this clause is really to provide a security in the event of default and since right now only 16% of individuals are in compliance, in full compliance, there is a real need for --
Mr Elston: Without blemish, you might say, since he is fully in compliance now.
Mr Wessenger: Without blemish, so that means there are no arrears. There are 16% with no arrears now under the support and custody orders program.
Mr Elston: But just to make it clear, you are talking here --
The Chair: Mr Wessenger does have the floor, sir.
Mr Elston: Well, this 16%, though, relates to current case load and I just want to be absolutely sure that people know we are talking about people who have other track records who will now be brought in. I just do not like your using that 16% as though it is an absolute number of the people who are separated and have support orders.
Mr Wessenger: No, I am not implying that. These are people under the SCOE system --
Mr Elston: Well, people reading this Hansard --
Mr Wessenger: -- and we assume the same people would be under this program. The four months is what is considered a reasonable period for the amount of security it would take for the branch to get enforcement proceedings going and give some security to the income recipients. So it is really a balance in favour of the income recipient. That is the purpose of it, to protect the income recipient.
Mr Elston: Yes, and if you are poor, it is no help.
Again, I just have to say this is a protection to cover the backsides of the system, the bureaucratic system not the bureaucrats, not the humans. People will do their very best, but I will tell you, if you are poor and you can hardly afford to make your payments -- remember, we heard some evidence from people who are making payments already and who had actually defaulted, and some of the difficulties were that they lost jobs, they were sick or they had another reason. How in the world can you expect people whose marriage separations or breakdowns might have been caused partly by economic difficulties, by ill health or whatever to pay four months of payment in advance when they can hardly afford to keep themselves?
I understand there are some circumstances where people are absolutely the worst individuals in the world, but remember there are other reasons, and just remember they have already passed the test of unconscionability for the judge, they have already passed the test of having the consent of the other side and then we are asking them to put up four months' worth of payments. I am telling you, if that is not a balance in favour of the wealthy of this province, an exclusion of the people who are not economically well off, then I will eat my shirt and yours too. I mean, it is terrible.
The Chair: All in favour of the motion on page 27? Opposed?
Motion negatived.
Mr Elston: The wealthy only need apply.
The Chair: Have the members had a chance to look at the letter Mr Harnick was requesting?
Mr Harnick: May I just correct the record? I notice that the letter is not from the Canadian Bar Association. It is from the Law Union of Ontario, and there is a very great difference. I suspect if you are taking letters from the Law Union of Ontario or seeking its advice on 15 March 1991, which was considerable time after the hearings, it would probably be well worth your while to seek the advice of the Canadian Bar Association, which has a family law section, to see what it says about this.
Ms Pilcow: Just in response to that, we sought the advice of both groups. Carole Curtis and the members of her group are also members of the Canadian Bar Association. I apologize for making the mistake. It was from the Law Union of Ontario. They chose to respond at that point, although they were consulted well in advance of standing committee, just for the record.
The Chair: I believe we did have representation from the Canadian Bar Association family law section during our hearings.
Mr Harnick: Nothing that responds to what is in here. I do not know what the timing or the sequence was because unfortunately I was not here.
The Chair: Any further discussion on page 26b? We will return to that. It was put aside pending reading of that letter. Further discussion on the government motion? All in favour of the government motion? Opposed?
Motion agreed to.
The Chair: Can we go back, then, to page 28.
Mr Wessenger: Mr Chairman, I am wondering if we might return to a prior motion. I need unanimous consent.
This is an amendment in response to Mr Sorbara's suggestion he made yesterday about there being a drafting problem. This is with respect to subsection 3c(2b).
The Chair: Lisa suggests that we finish this particular section, 3d, before we start on something else.
Mr Wessenger: Do we still have something left?
The Chair: Can we continue with that first?
Mr Wessenger: Yes, okay.
The Chair: The motion on page 28, a Liberal motion, 28 white. Mr Poirier.
Mr Poirier moves that section 3d of the act as set out in the government motion be amended by adding the following subsection:
"(4a) No order shall be made under clause (2)(b) unless the court is satisfied that the parties have voluntarily agreed, without undue influence, to the suspension of the support deduction order."
Mr Poirier: Obviously, this is an added aspect of security that is self-evident. With the voluntary agreement, "without undue influence," I think those three words are key words and with the government members' indulgence, we think they would consider adding that condition, (4a), to the security aspect of the bill.
The Chair: Mr Elston.
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Mr Elston: Just briefly, I think it is quite clear why that is here. It then requires, or at least it lets everybody who is going to come forward with a consent understand that his or her lawyer will have to lead evidence about the issue of undue influence and that there will have to be some information in court to satisfy this particular section.
I think one of the things we all heard during the presentations was that there are situations where people will try, through bad means, to influence somebody offering a consent. This is just an extra of evidential material which would be required, I think, to ensure that someone could be told, even if the person gets consent, that he or she is going to have to lead evidence to ensure that there is no undue influence, there are no beatings and there is nothing else being exerted solely for the purposes of consent. You are free to ignore it if you wish, but I think it must be stated quite clearly that we want some indication that the people who are least able to defend themselves are not going to be taken advantage of and that some evidence to that effect must be in front of the court when the decision is ultimately made.
The Chair: Further discussion?
Mr Elston: You shake your heads every time I make a presentation. I know, I should keep making presentations.
Mr Wessenger: Yes, I appreciate the thought behind this amendment. It certainly has some merits. However, the consequences of it would be that on each occasion the parties would have to be present in the court every time an order suspending a support deduction order were made. I think that is the first point. It would not allow the normal court process of parties agreeing to a suspension order and on many occasions, on most occasions probably there would not be coercion. So there is that aspect to it. The other aspect is that a person who is truly coerced would likely be coerced even in a court setting. But that is basic. So for those reasons we oppose it, but as I said, it has a good thought behind it.
The Chair: All in favour of the motion on page 28? Opposed?
Motion negatived.
The Chair: The motion on page 29. Mr Poirier.
Mr Poirier moves that section 3d of the act as set out in the government motion be amended by adding the following subsection:
"(4b) A court in making an order under clause (2)(b) may waive the requirement to post security if it determines, having regard to all of the circumstances, that it would be reasonable to do so."
Mr Poirier: Obviously another evident, logical and self-explanatory section. I will not take credit for it because I am replacing Mr Sorbara, I must admit, but obviously the aspect of the "may waive" gives the added flexibility to the court system to be responsive to particular situations where it may warrant and may use subsection (4b) to be flexible with respect to specific circumstances. Thank you.
Mr Elston: Mr Chair, I will not speak to this because a lot of the things I said previously about another section would apply equally, but I would ask that the people respond to some of the questions I have about the practical effect of the manner in which they take security deposits, about how they are going to credit interest and how they are going to operate the facility to ensure that there is no intermingling of these trust accounts by people. I want to have those answers now so that we can deliberate somewhat more fully on the nature of the merits of this proposal.
Mr Wessenger: There is another motion. I believe we will be discussing the matter of interest.
Mr Elston: I am not asking about our other motions, I want to know now about the intermingling of deposits and taking of security and the issue surrounding the way this will be dealt with.
Mr Wessenger: I think I will let the director answer that question.
Mrs Mills: Mr Elston, I think you can appreciate that the detailed implementation planning as to how the funds will be handled has not yet taken place. When the bill is in its final form, that will begin in earnest. But at the moment we take care of a large number of funds that are not intermingled in accounts and we will look at this in the same light; and I might add that the security has been requested in cash because --
Mr Elston: I know.
Mrs Mills: -- because the purpose of the security is to be able to move on it. I also wanted to make that comment.
Mr Elston: Okay, are you going to establish, then, individual trust accounts for each account that is running? Are you going to have an account at the Province of Ontario Savings Office, or what are you going to do?
Mrs Mills: We deal with the Royal Bank at present. I am only saying that all the options will be looked at both to secure the funds and to make sure that they are kept intact.
Mr Elston: What interest is credited to those accounts?
Mrs Mills: Interest rate will be discussed at --
Mr Elston: No, no. Currently what is the interest at which you credit those accounts?
Mrs Mills: Why do you not respond to that, then, on the interest issue?
Ms Feldman: As I understand it, Mr Elston, moneys in the Province of Ontario Savings Office are at the going rate. There are very many sectors of the government and we are reviewing how they handle funds, such as the Supreme Court account and the public trustee's office. Other legislation has security provisions. The Ministry of Treasury and Economics, of course, deals with security other than cash on a regular basis, bearer bonds and registered bonds, and the Ministry of Revenue of course deals with cash. All these options are being reviewed and will be considered --
Mr Elston: Okay, that is fair enough, with review.
Ms Feldman: -- with effect to the most administratively feasible way of dealing with the security.
Mr Elston: But you are dealing now, as the director has just indicated, with the Royal Bank. What is the rate of interest that is credited to each of the trust accounts now?
Ms Feldman: I do not know. The way matters are now, we do not hold security as a matter of course in those particular accounts. If there are overpayments they will be paid out on court order. Interest is not a running issue at the present time, although we quite appreciate that it is an issue that has to be addressed for the purposes of holding security.
Mr Elston: What about overpayments, though? I mean, you are not going to release any money that is held by you as an overpayment, and currently you do not release it anyway, until you have a court order?
Ms Feldman: When I speak about overpayments, it really goes back to the issue you discussed in a previous week with respect to gratuitous payments, and that is quite a different issue. When there are arrears outstanding, whether those arrears are going to be credited with respect to that payment or whether it is a gratuitous payment standing alone, that is something that is really beyond the scope of the particular issue we are discussing now.
Mr Elston: Sure, but just so that I can understand, you currently credit interest to overpayments, do you? The answer is you do not know, yet I suspect -- would you try to find that out for us, so that I understand what your current practice is?
It is my view, by the way, that you are not paying interest at all or crediting interest at all to people who probably can least afford to lose the operation of their money. I just want to verify that you are going to set up a system which at least is going to credit these people. You are going to vote against all this stuff; at least the members are, you are not. But your advice is that they vote against all the proposals we have and that you are going to hold a lot of money from well-to-do people and from anybody who is courageous enough to borrow it from Canadian banks or credit unions or whatever other financial institution they can go to, trust companies. They are going to pay interest on that, but you are going to hold the security. I hope you are going to pay them a commercial rate of interest so that they can afford to get into this racket, because if you cannot afford to buy into it, it is an unfair piece of legislation, just to repeat my position.
Perhaps if you have a detailed plan starting to be formulated we could see a little bit of it, because I know how people think about some of these things and I am quite familiar -- to be fair to the director, who is only with us now for a short time in her current capacity, detailed plans are not finalized until the last one, and I appreciate that. But you must have some thought, because this is a big administrative nightmare if you get charged with using somebody else's trust funds. It is the public servants who are charged with using somebody else's trust funds for a purpose like financing the consolidated revenue fund or something like that.
This is a problem for me, and you are not going to give anybody a way out so you better start understanding. I have raised the issue before, just to be fair to myself, when we were hearing presentations, that I wanted to see some of the material that focused on how this was going to operate.
This reflects, by the way, some presentations made by people earlier on as well, that if you do not have the funds to make the system work, you are really going to be in bad shape. This is another big administrative area. I suppose it will need at least, if not a lot more people, some very well educated people in the ways of operating computer systems. It probably will also require the introduction of a new computer program with special assistants hired on contract or as permanent staff to run this thing. A big problem administratively, a very big practical problem and another kick at the economic viability of the people who are least able to afford it, if you are not going to end up having some pretty good interest payments going to these people.
Mr Harnick: I agree with this motion because what one has to understand is that you have reached a stage, when this would become operative, of proving unconscionability. All you are doing now is giving the person who has already proved unconscionability the opportunity to demonstrate to a judge that posting security, having regard to all the circumstances, would not be necessary.
What more protection do you need? Why will you not trust judges to try to help people who have overcome the first hurdle? That is why I think this is a good amendment and I think the government should support it.
Mr Wessenger: I would just like to clarify something. I think there is a misunderstanding about when the security applies. The security only applies in the event of consent of the parties. The security does not apply in the question of unconscionability.
Mr Elston: There is no misunderstanding about that. We went through a whole pile of hoops to get this far.
The Chair: Further discussion? All in favour of the motion?
Mrs Mathyssen: Mr Chairman, could we have a 20-minute division please?
The Chair: We will resume at a quarter to 5.
The committee recessed at 1623.
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The Chair: At the point we left off, the government whip was requesting a 20-minute recess, so we are now at a vote on page 29.
Mr Elston: Can I inquire, Mr Chair, do members of the New Democratic caucus feel better now? Will we feel better?
Mr Fletcher: Yes.
Mr Elston: Oh, good.
The Chair: All in favour of the motion on page 29? Opposed?
Motion negatived.
The Chair: We move now back to pages 24, 25. White 24, and 25.
Mr Elston: Just so that I am clear, what amendments have taken place to this?
Clerk of the Committee: What is on the floor now is 24 and 25. It has been amended by page 26a gold and page 26b gold.
Mr Elston: I would just ask you to read how it is amended. Can we do that?
Clerk of the Committee: Reread the whole thing?
Mr Wessenger: Or could we just reread the amendments? If I might just point out for clarity, I think if we look on page 24 at the bottom where it says, "unconscionable, determination", number 1 set out there is deleted, and I will read what was substituted for it, which was on page 26a: "The fact that the payor has demonstrated a good payment history in respect of his or her debts, including support obligations."
Mr Harnick: That goes in instead of number 1 that is there now on the white page?
Mr Wessenger: That is right.
The Chair: That amendment to the amendment has already passed?
Mr Wessenger: Yes, it has passed.
The Chair: And 26b?
Mr Wessenger: In that case, it is an addition on page 24, number 4, and that addition is: "The fact that there are grounds upon which a court might find that the amount payable under the support order should be varied." That was added to subparagraph 3.
Mr Elston: I think we should have the parliamentary assistant go over the rationale behind this wholesale change of 3d. I know it was moved. I am not sure that we had his explanation. I think we went directly, as I recollect, into the amendments of the section by our motion. So if the parliamentary assistant can tell us a little bit about this smoke-and-mirror section. The PA giveth, so to speak, and the PA taketh away might be another description. Perhaps we would be at liberty to consider voting on this.
Mr Wessenger: Perhaps if I might -- originally, as set out in the bill --
Mr Elston: Here commenceth the reading.
Mr Wessenger: Yes, I am trying to see the changes from the bill.
Interjection.
Mr Wessenger: Oh, it is already in the bill?
Clerk of the Committee: The bill was reprinted.
Mr Wessenger: Is it the same as 24?
Clerk of the Committee: Yes.
Mr Wessenger: Basically, the purposes of the amendments are to define or limit what "unconscionable" might mean. So we have these additional items (a) and (b). Yes, that is the addition, that certain items are not deemed to be unconscionable -- subparagraphs 1, 2, 3 and 4. That is as it varies from the bill as originally presented.
Mr Elston: I am sorry. I have an old bill, not the one that has been reprinted. That is why I could not find all this stuff in one place. Can we get a copy?
The Chair: Mr Elston, in referring to the older copy, is quite correct. The committee, in my understanding, should be referring to that copy until the amendments --
Mr Elston: It is okay. I just was using an older copy and I did not see it all reprinted.
Mr Wessenger: It is all reprinted.
Mr Elston: In the copies you have?
Mr Wessenger: In the copies I have it was reprinted, yes.
The Chair: Mr Wessenger, the rationale?
Mr Wessenger: The rationale basically is quite interesting. What we said is, the following shall not be considered by a court to determine whether it would be unconscionable to require a payor to make support payments to a support deduction order.
We have in effect stated certain items that cannot be considered and those are the payor's payment history, the fact that the payor has had no opportunity to demonstrate voluntary compliance, the fact the parties have agreed and the fact that there are grounds upon which a court might find that the amount payable under the support order should be varied. I might add that these items are there basically for the purpose of clarification rather than for the purpose of changing the intent of the original section because --
Mr Elston: "For the purpose of elimination" might be --
Mr Wessenger: -- the normal definition of "unconscionable" is something that -- I forget the phrase now.
Interjection: "Shocking to the conscience."
Mr Wessenger: "Shocking to the conscience." I think the four items we are saying are not to be considered in most cases would not be considered shocking to the conscience, at least in my opinion. However, it is there for the purpose of clarity. The question of what is unconscionable, I know has been asked. There may be particular circumstances where --
Mr Elston: Like? Can you enumerate any circumstances?
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Mr Wessenger: There is only one that has been thought of.
Mr Elston: Would you bring that forward for my consideration. I must have missed it.
Mr Wessenger: I do not know whether it has ever been given.
Mr Elston: Please bring it forward.
Mr Wessenger: The only one we could think of is a situation where there might be a child and there would be a reason you would not want that information disclosed to the employer.
Mr Elston: A secret identity.
Mr Wessenger: A secret identity question, yes. That could be a possible situation.
Mr Elston: And that is the only situation where you can see that this section on conscionability would be passing the test for a judge.
Mr Wessenger: I am sure there might be others, but let's put it this way, that was an example.
Mr Elston: Just so that we are clear, there are no circumstances, except with one possibility, that the public interest may be overridden, at least overridden to protect the identity of a child from an employer who had made the deduction. That may be a reasonable issue of unconscionability.
Mr Wessenger: I am sure there might be, there are always situations which arise that are not anticipated. I think that is something we should be aware of, that there will always be something coming up that would be considered shocking to the conscience.
Mr Elston: But Paul, is it not interesting to note that you have given a whole section to delineate what is apparently a route out of the support deduction order. There are almost two pages of this section 3d as it sits here. Really, what you might just as well have said to people is, "There is no way out of this, men and women of Ontario, you are in up to your ears if you separate."
Mr Wessenger: I think, though, there is another aspect behind this whole unconscionability thing which should also be mentioned, and that is the fact that there may be --
Mr Elston: This is really illusory, you know.
Mr Wessenger: I think there is a certain advantage of leaving to the court the question of determining --
Mr Elston: You did not leave it though; you did paragraphs 3d(3)1, 2, 3 and 4.
Mr Wessenger: No, and in our opinion we have not tied their hands. These are items that would not be intended to be included in unconscionability in any event. It is for the purpose of clarity for the courts.
Mr Elston: No, it is to prevent some judge on her or his own wicket running out and saying, "I think it is unconscionable in the circumstances since it has been shown that...." You are basically saying to that person that she or he cannot decide that 1, 2, 3 or 4 had any bearing on the issue of unconscionability.
Mr Wessenger: That is correct, those four are not --
Mr Elston: You are tying their hands and you are eliminating the one item you have just now raised for our own interest about what would pass the test of unconscionability perhaps.
Mr Wessenger: I think you could be broader than that and say where --
Mr Elston: I am sorry, Paul. I mean, why are we even going through all these sections? If you want to protect universality -- and I am getting back to my "reasonable" test again -- if you can only afford to buy your way out of this thing after you do unconscionability or you get consent, if you have to buy your way out of this, I mean, this is just travesty. We should tell people up front there is no way men and women of Ontario can get out of this section at all because that is really the test.
You are going to ask judges to hear submissions from people trying to crack the unconscionability barrier to begin with. First of all, they are going to have to have consent. Presumably that will be the primary point. I am not even going to try it if there is not going to be consent from the other side because let's face it, even if they pass the test with the judge, without the consent of my client, for instance, who will then go and say, "I want this order acted on by the director," it seems to me they are going to be out of time.
Mr Wessenger: No, I think the fact is that unconscionability comes in when there is not consent.
Mr Elston: But can you tell me then that a judge, on his own wicket, is going to say it is unconscionable that this take place when the payee is telling him he requires the support deduction order to be acted upon?
Mr Wessenger: I think that would depend on the evidence. I think there could possibly --
Mr Elston: Come on, Paul, you are a lawyer and you know how these people act.
Mr Wessenger: I think it is fair to say there will be a few unique cases.
Mr Elston: This is then going to pad the bills for some legal people.
Mr Wessenger: I agree with you it is going to be a rare occasion.
Mr Elston: Almost non-existent.
The Chair: No further discussion? All in favour of the motion?
Mr Elston: No, no. We just discussed the part of section 3 --
Mr Wessenger: The unconscionability concept.
Mr Elston: -- that is the unconscionability concept. I might ask that we pursue this section as a whole.
Mr Wessenger: I think we have dealt with the unconscionability aspect. The next aspect we deal with is the question of security, and as I indicated earlier, four months was the amount we felt would be necessary to buy payments to the income recipient, during the period in which it would take time for the branch to get its enforcement procedure under way. It provides security of payments for at least four months to an income recipient.
Mr Elston: I know you did not before, but can you respond to my issue about the fairness of that, asking people who usually or often find themselves in financial difficulties, to pay four months without the opportunity for someone to bury that amount.
Mr Wessenger: I think it is a questionable balance, really, between the interests of the recipient and the interests of the payor. The decision has been made in this instance to be balanced on the question of providing security for the recipient.
Mr Elston: Will the money stay as a whole in a four-month lump sum with interest accumulating, I hope, until such time as the support order ceases or the support deduction ceases to exist, and then be paid out on a court order?
Mr Wessenger: We do not know the exact details, but we understand right now that there are some instances where money has been paid as security, and in these instances interest is paid to the person posting the security.
Mr Elston: At what rate?
Mr Wessenger: I will ask the director.
Mrs Mills: At the moment there are one or two cases. In the Toronto office where security has been ordered by the court -- and there are differing circumstances -- in one case, the account is with the bank in the name of the payor. It is a non-chequing account. The interest rate is the going rate for that type of account at the bank. It is credited to the trust account in that particular name.
Mr Elston: Let's just say, under some interesting circumstance -- I will take it and probably stretch it about as far as I can -- that a child of a marriage is quite young. You can then consider upwards of 21 years of operation of this account, presumably just dealing with the support deduction order covering the child, presumably saying he complied. You could have a four-month payment made at the time, that is on deposit with the government of Ontario, accruing interest for 21 years or as long as the support order takes effect, without paying any interest to that person at all -- or will it be allowed to run for ever? -- or until the support deduction order is cancelled and the order for payment out is made by the court.
Mrs Mills: Those details, as I said, will have to be looked at in the scenarios of what could happen, whether there will be some payout or whether it will stay in the account.
Mr Elston: Are you not drafting the regs? I understood that you would be doing some drafting of regs between the time that we broke off here in February and now. Are the regs not going to cover the fact that you do not want to have somebody with four months-plus of interest running for 20 years or whatever?
Mr Wessenger: I would agree, that would be a matter that should be in the regulations.
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Mr Elston: No, they did not just say that word.
Mr Wessenger: Yes, we have to look at it. Yes, it is a complex situation for the simple reason that the support order will go up with the cost-of-living increase. There will be interest credited and obviously the question is of the differential. If there is a higher differential from interest credited than the cost of living increase, then --
Mr Elston: So then the suggestion you just made to me is that if the cost of living is beyond the rate of interest credited to the account, you may ask the person who is outside the support deduction order --
Mr Wessenger: No. You have no right to do that.
Mr Elston: Are you sure?
Mr Wessenger: Yes.
Mr Elston: Because you are in violation of the act. There is no right to allow a person under the order unless there is at least four months' deposited security on hand. Right? Right.
Ms S. Murdock: At the time of making of the order.
Mr Wessenger: At the time of making of the order.
Mr Elston: Only.
Mr Wessenger: Yes.
Mr Elston: Okay, but then your answer --
Mr Wessenger: The order is standard at the time.
Mr Elston: -- to the first part of the question would not be accurate. It would not matter what the cost of living was, he would only be required to keep on hand the four months at the time the order was first made. Do not try to keep money and then say you are not going to be doing the other side of it, because I tell you, if you have to have at least four months' payment, you have to be very precise about whether or not the interest is to be credited to keep the balance of four months in good standing, or whether you are to pay out the surplus above the four months at the original time or indeed at the time the determination of the size of the trust account is to be made.
Mr Wessenger: Yes. You have raised the issues that really have to be worked out in the regulations.
Mr Elston: I am available to be a consultant, but this is what we had to do, we had to do some of this stuff before we got this far along, to be fair. Some of the systems stuff has to be done and there have to be allocations; I presume there has to be a request for allocations.
Mr Wessenger: I think that is fair. That is also why there is a fair time lag in --
Mr Elston: But do you not understand?
Mr Wessenger: -- passage and proclamation.
Mr Elston: The point I am trying to make is, the manner in which this thing is administered makes it either fair or, to use the current phrase, unconscionable. The manner in which we require people to leave money on deposit in a trust account with the government makes this thing less or more fair, or indeed, even unconscionable. Is that an issue the judge will take into account, that it is unconscionable to have somebody with a deposit with the government for four months?
Mr Wessenger: No.
Mr Elston: Well, I will tell you, if they cannot afford to keep their house or they cannot afford their way to work, is that unconscionable or not?
Mr Wessenger: The only thing I will say, Mr Elston, is that the issues you raise are being looked at in this regulatory aspect.
Mr Elston: Well, that is one thing.
Mr Wessenger: I am assured they are being looked at. I had better say that.
Ms S. Murdock This section is strictly for those people who are asking for a suspension of the support deduction order.
Mr Elston: That is correct.
Ms S. Murdock: Mr Elston's words, "buy your way out," pay four months as a security, at which point they no longer are paying per the support deduction order; they have their own arrangement or whatever with their spouse -- ex-spouse.
Mr Elston: That is right.
Ms S. Murdock: You are making it sound as if anybody put this four months down.
Mr Elston: No, no, I want to be quite clear. I want to be absolutely clear. I spent a lot of time talking about the fact that this whole section is an illusion, that it is a smoke-and-mirrors thing. I am saying to you that if you are going to have this -- and it is, in my new word, unconscionable to say to people, "You must pay the four months" -- there are a bunch of people who can afford it and there are a similar bunch of people who cannot afford it. That is my problem. If you have no leeway to make a reasonable assessment of what people should have on deposit as security, in regard to their circumstances and in regard to the number of people they are required to take care of, then that is what makes this thing an offence, and the manner in which it is going to be administered can make this whole section an offence.
I agree with your final submission, but there are very few people who are going to be able to use this exit opportunity. Those people who do use the exit opportunity are going to be afflicted with a deposit of some dollars with the government over an extended period of time and that is unconscionable, in my view. We talked about that part. Is there any other section here? We have subsections 3d(5), (5a) and (5b). Is there anything else you want to say about those?
Mr Wessenger: Subsection 3d(5) would clarify that the parties themselves are responsible for all court applications with respect to support deductions. There is a single exception, and that is where the administrator has applied support deduction to an existing case.
Mr Elston: I notice white subsection (5b), which I presume is the case because we do not have the other, says, "If the payor brings a motion under subsection 3k(6), the director must also be served with notice of the motion and may appear." Can I ask what the interest is in having the director appear at a suspension order? What interests is the director representing?
Mr Wessenger: Perhaps I will refer that to the staff.
Ms Feldman: Section 3h, or what was formerly 3k, deals with the application of support deduction on existing orders. Insofar as the director may elect to apply support deduction on those orders as a mode of its enforcement activity, the director, who has exclusive jurisdiction over enforcement, would be interested in the payor's application for suspension of that support deduction.
So in those situations, before the director can proceed with support deduction on existing orders, the payor gets notice that the intention is to apply for support deduction and the payor has 30 days to bring a motion to suspend support deductions. Since it was the director who decided to take the step to apply support deduction and notify the payor, then it makes sense that the director should be notified of the payor's motion to suspend that support deduction order.
Mr Elston: When would the director choose not to appear, since it says "may appear"?
Ms Feldman: Well, for instance, there might be a situation where the director thinks support deduction is an appropriate mode to enforce a particular order but the parties themselves have reached consensus. They agree that support deduction not be applied and that security is going to be posted. In that kind of situation it may not be necessary for the director to appear. Instead, the director will take the posted security and there will be a suspension on consent of the support deduction order. That is one of the examples I think of.
Mr Elston: That is again a pretty rare sort of situation.
Ms Feldman: Not necessarily. I mean, perhaps we just do not know at this time whether it will be rare or not, but that would be the type of situation where the director will elect not to appear on a support deduction suspension motion.
Motion agreed to.
The Chair: Okay. We move back now to subsection (10). We have to have unanimous consent to open (10). The amendment is on the yellow page that was handed out. Mr Wessenger.
Mr Wessenger: As I said, we need unanimous consent. This is the response to the point raised by Mr Sorbara yesterday when he indicated he felt there was a drafting problem, and upon further reflection it was accepted there was a problem and additional words have been added to the section. The words are "the support order has not been filed in or." Those are the words that have been added.
The Chair: Do we have unanimous consent to open subsection (10) for the purpose of the deduction --
Mr Elston: Mr Chair, I am sorry to do this. I know you are just responding to Greg's request. Since he is not here and there was an anticipation that you might be back doing this today, I wonder if we could share this with our colleague before it is moved. Otherwise I guess we have to talk out the clock or something.
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The Chair: So are you suggesting that --
Mr Elston: Until we can usefully go on with other sections, in fairness --
The Chair: Are you suggesting that we stand this aside until Mr Sorbara is present?
Mr Elston: Please.
Mr Wessenger: I have no objection.
Ms S. Murdock: We do not have any objection. That is fine.
Mr Elston: I am not a member of the committee so l cannot object in that fashion but it is Mr Sorbara's question.
Mr Poirier: I think it is only fair that we leave that for Mr. Sorbara when he is coming in.
The Chair: Failing 10a, we are on page 30 --
Interjection: We are on 30 replacement; we are on gold.
The Chair: We are on gold, which is 30 replacement.
Mr Wessenger: My motion, then.
The Chair: Mr Wessenger moves that section 3d of the act, as set out in section 3 of the bill, as printed, be amended by adding the following subsection:
"(10) An order suspending the operation of a support deduction order does not affect the payor's obligations under the support order or the enforcement of the support order other than through a support deduction order."
Mr Elston: Just before we get to this again, the last amendment dealt with subsections 3d(1) through (5). We have not yet then dealt with subsections (6) through (9), is that right? Is this an amendment to subsection (10)?
The Chair: There are no amendments to those sections.
Mr Elston: Okay, but do we not have to carry the section as a whole?
The Chair: Yes.
Mr Wessenger: This amendment further clarifies that the suspension of the support deduction order does not prevent enforcement through some other means. Although this was the original intention and was implied, it is now clear. So it is really felt that it nails it down.
Motion agreed to.
The Chair: We will now be doing 32 before 31. Mr Harnick, page 32. Oh, I am sorry, Mrs Cunningham was wishing to be present for that.
Mr Carr: Yes, she is coming.
Mr Mills: That is 31 what?
The Chair: No, we are on 32, and Mrs Cunningham is wishing to be present.
Mr Carr: She is supposedly coming up. Five minutes should do it.
The Chair: Okay, I suggest we set that aside until Mrs Cunningham can be here to discuss it.
Mr Harnick: Yes, in light of the last amendment which added number 10, each of these should now be number 11, 12 and 13. Okay?
The Chair: On page 32, if we can just make those slight changes on the paper: 10 becomes 11, 11 becomes 12 and 12 becomes 13.
The clerk suggests that we can go to page 31.
Mr Poirier moves that section 3 of the act as set out in section 3 of the bill, as printed, be amended by adding the following section:
"3da(1) The director shall suspend the operation of a support deduction order if the payor has not defaulted under the order at any time during such period as is prescribed by the regulations.
"(2) If the payor fails to comply with the support order after the operation of the support deduction order has been suspended, the support deduction order is automatically reinstated."
Mr Poirier: Not bad for my second language, eh?
The Chair: Excellent. Would you like to speak to that, or Mr Elston?
Mr Elston: Do you want me to speak to it, Jean? We talked about this issue when the presentations were being made. I think in earlier parlance it was described in the AG's department as the kick-out clause or some such thing. It basically allows people to say, if there has been compliance over a substantial amount of time, let's move on and allocate our resources to enforcing the people who are hard to get at.
The issue is quite clearly one of whether or not you are willing to release the good-statistical-compliance people to perform on their own or whether you want to deal with the universal group. There is not much secret, I think, that we believe there will be very little success or opportunity for this amendment because this is considerably more controversial in many ways than the request for having some reasonable exit opportunities for people.
All this says is that if people have been making the payments over an extended period of time, then get them out of the system. Apply the resources to the tough-to-get-at cases. In fact, the director having an acceptable amount of resources currently at her disposal might very well decide to say yes to trying to enforce a couple of the difficult payment questions, whereas at the current time she would have a lack of resources to go after the harder-to-enforce.
Remember that with the regime we have set up here, there is discretion on the part of the director to say that it is not practical for her to follow up on certain difficult payment issues. The ones that, in terms of policy, we really would wish to pursue with the most earnestness would be those cases where there has been not only a failure but in some cases a refusal, and in other cases a downright conspiracy, to avoid making the payments to people who are in need of support. If we can do anything that allows more efficient allocation of funds, ie, taking the resources out of following up on good people -- I have described them as good people and I hope you know what I am referring to -- as opposed to following up on the really bad sort of folks, then I think you are going to get better results.
We have to know now that no matter what we say about the manner in which this scheme is designed to perform, there will be a lack of resources to perform well when it comes to those cases which are most difficult to enforce: the follow-up after the person who absconds from the area -- absconds sounds like they are taking something with them; they may be or they may not -- the ones who run away from their obligations.
I think those are the people for whom this legislation ought to be designed primarily, and anything that we can do to ensure that the director has some discretion to reallocate her resources so that she can follow up on those hard-to-get-at people, I think, is rational.
I have no illusions -- because I think my other amendments as suggested were easier to consider in the context of the position of the New Democratic Party -- that this particular amendment has any opportunity of passing. I want to put it in these terms merely to demonstrate that there are very difficult choices to make about the allocation of resources, because, believe me, there will be insufficient funds allocated to follow up on the toughest cases. You and I will receive as members, and the Ombudsman's committee -- maybe not the committee but the Ombudsman herself -- will receive concerns about how the director has exercised her discretion in refusing to enforce a support order.
The issue that really brings this suggested 3da amendment to the fore is only for you to consider the fact that you cannot do everything for everybody; you have to make the hard choices. The hard choice you have to make here is to allocate resources being used to follow up on the good ones, the ones that do not necessarily have to chew up any resources at all, in favour of following those people who are hard to get after.
That is all this is here for. It is to remind you of your choices and it is to remind you that you are going to suffer some failures under the regimen that is established by this bill.
I think you could have helped yourselves quite a lot by accepting some other less, sort of, threatening amendments. I am quite well aware this one threatens universality to a greater extent than the other ones that allowed a judge in her or his discretion to play some role in deciding when a support deduction order should or should not be in place.
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Having brought that to the fore, I can anticipate the vote. But I just lay that on the table for you folks, because sometimes we let our personal views associate it with the heinous acts of the most recalcitrant, the most unsavoury of the subjects of this. We forget about the people who, despite the fact that there are separations and in fact there are divorces, still are very reasonable and law-abiding and responsible individuals. Maybe from statistics they appear to be very much in the minority, but that is not the issue. The issue is, how are you going to demonstrate some sense of priority if you are allocating money to chase the good ones who would comply anyway while you are allowing the director discretion to say, "I'm sorry, it is not practical, madam, for me to follow that person and give you money"?
That is why this is here, and I want you to think about it seriously. Then perhaps when we get to committee of the whole House, we can maybe reassess some of the other, more rational and less threatening amendments, because I understand this is irrational when you compare it to the stated purpose of universality that you have already talked about; but there are some more rational and less threatening amendments which you might consider doing a better job on and in fact accepting when we get into the House.
So that is the story of this amendment and that is what life is about: the tough choices and where you are going to allocate the resources. I know I am not going to get this, but I would like to see the request of the Attorney General to the Treasurer and policy and priorities board and the Premier with respect to their full request for funds, including this area, and then I would like to compare it to what they actually get. Because it is the duty and obligation of the public servants who are going to be talking to us later when we do a review of this legislation and its workings that -- "of course there was a reasonable amount of resources allocated to us. And we are quite happy" -- as they cross their fingers -- "to be doing such a good job with what we got."
Motion negatived.
The Chair: Mr Harnick, the motion on page 32.
Mr Harnick: Mr Carr will be bringing that motion.
The Chair: Mr Carr moves that section 3d of the act, as set out in section 3 of the bill, as printed, be amended by adding the following subsections:
"(11) Despite any other provision of this section, a court that makes a support deduction order shall immediately suspend its operation if the payor requests the suspension and agrees to pay to the director the amounts owing under the support order to which it relates and the court is satisfied that the payor is likely to make the payments.
"(12) A suspension order referred to in subsection (10) is terminated if the payor, without an explanation that is acceptable to the director, fails to make a payment under the support order when it is due.
"(13) The support deduction order is reinstated when the suspension order is terminated under subsection (11)."
Ms S. Murdock: Mr Chair, under the margin note "termination of a suspension" order within subsection (12), there is a reference to subsection (10) which should be (11), right?
Mr Revell: May I make a suggestion, Mr Chair?
The Chair: Yes.
Mr Revell: It would be unclear to refer to the motion as printed; if the motion passes, we will fix all of this editorially on the reprint.
The Chair: Thank you.
Ms S. Murdock: Okay. So it stays 10?
The Chair: We do not have to worry about the numbers. As printed, it will be fixed up.
Ms S. Murdock: So it stays (10), (11) and (12). Boy, I will tell you, if this thing passes --
The Chair: Would you like to speak to your amendment, or Mrs Cunningham?
Mr Carr: Maybe I will go first, if I could, and I will be fairly brief on it. In sitting through a lot of the discussions -- and I guess we have gone around this a little bit, because most of the Liberal motions talked to the same principle -- what we are hoping to do is focus on those people who really need to be focused on.
I guess the big fear I have is looking at some of the other programs, whether they be WCB or rent control or the court backlogs. If we put people in the system who would otherwise pay, what we end up doing is actually clogging the system. I go back to the principle of what this bill is all about, which is really to help the people, particularly the children, who need the money. It does not threaten the universality. We were very clear on what we put in there: if you missed just one payment. And I guess it is my feeling that once this program comes in place and people know that there is going to be, for want of a better word, some tough legislation, we are going to get a lot of people to come into it who otherwise might not have paid in the past because there was no enforcement mechanism. They will realize that the government is not kidding any longer, that they will have to make their payments, and I think from that standpoint it is good. However, there are going to be some people who we would like to see pay directly on their own.
Looking at some of the statistics that we have on the people who were in compliance and the ones who were in arrears, when we get into it, as we did during this debate, we find that some of the arrears could be classified as arrears even if there was a problem with the old SCOE department. We look at the statistics. You are going to see that with no packages filed, there is a very high percentage that will not be included. When you really get down to it, we are talking about a system of trying to help those people who, for want of a better word, have never lived up to their obligation. So what we are saying is you should have the chance to pay willingly on your own.
I do not believe this threatens universality. What we are trying to do with this for those people who wish to pay, is allow them a chance to get out. One payment missed, one lousy payment missed, they would then come into the system. I think we tried to be fair, looking at what the overall objective of the Attorney General was, and listening to him very clearly. There were those who said, "Well, it should be three," or two or whatever. We said: "We are going to try to give a little bit. You miss one payment and you fall out." So we, I guess, tried to extend a hand on this, to work in the spirit of compromise. I really do not believe that by passing this motion we are going to prevent any children from getting the money they so desperately need. What we have attempted to do, along with some Liberal amendments, is put the opportunity there so that the system does not get clogged.
We have no way of knowing what is going to happen a year from now. I think during her testimony the director said they hoped to have the backlogs cleared up and operating and to be up to efficiency some time early next year. My big fear is that we will not, that by putting people in the system who do not need to be there, we could be very well sitting here the same time next year wondering how we are going to clear up the backlog, like we are going to do when the justice committee gets into the court backlog. In fact today we heard the Attorney General talk about how some of the systems are going to be cleared out in the court backlog. I think it is the same, we are going to be putting people in the system who need not be there. This does not jeopardize universality; when we worked on putting this amendment together, we really did try and move closer to what the Attorney General wanted.
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The big fear I have is that this whole process has been for nothing, that we are not going to get this amendment passed and that all the hard work and all the submissions that have come through will be for nothing. As my friend Mr Sorbara said yesterday, if you could just point out to me how this would affect the overall thrust of the bill, I guess I would be prepared to pack up my toys and go home.
Mr Mills: But he did not.
Mr Carr: I failed to see it yesterday in that case, and I think with this amendment we are in the same boat, but hopefully at some point somebody on the government side will explain the rationale for defeating this amendment, because I think it is very clear it will be defeated, which, as a rookie, naïve politician, I guess is a little bit frustrating. I went through this process thinking that with all the hard work and all the nights we stayed up, there would be something that would change as a result of some of the work, and in fact we spent a lot of time working on these amendments for this motion. Charles being a rookie too, I guess we figured there might be some chance the government would listen. I guess I have been a little bit discouraged by the process, but we will see. Maybe it will pass, but I would hope that somebody, and it might be the parliamentary assistant, if they are going to vote against this, would go through it one more time for me to explain how this would defeat the major thrust of the bill.
I think, if I could now, I would leave it at that. I would hope one of the government members could speak up -- probably it would be best for the parliamentary assistant -- and then I would feel more confident knowing that there is some rationale behind this. I hope somebody will speak on it, and if not, I hope you will listen when my colleague Dianne Cunningham gets a chance to outline it as well, because we spent a lot of time agonizing over how we were going to word it. We worked with the legislative counsel and I hoped there would be some consideration given to this.
Mr Harnick: Section 3d essentially takes any opportunity away from individuals and away from the court to have a support deduction order tailor-made for their circumstances. What it does is treat everyone the same way whether they can afford it or not. It makes the opportunity to get out of the order virtually impossible, and as Mr Elston said earlier, it is weighted in favour of those who are wealthy and can afford it as opposed to those who cannot.
Universality in matrimonial dispute litigation is the most nonsensical thing I have ever heard of You are doling out matrimonial remedial justice the same way you want welfare delivered, and I would urge the members of the government on this committee to take a hard look at what they are doing by this legislation to families that are, in most situations, already bitter. You are increasing that sense of bitterness, you are increasing the degree of strife that is already there, and by doing that you are making the other aspect, custody, which this bill does not talk about, even more contentious. You should be looking to lower the level of strife and help people walk away from their situations with some shred of dignity. You are making that impossible.
You have shown by this piece of legislation that any flexibility is unwarranted. You have shown that you do not trust the potential individuals who come before courts in this situation, you do not trust the judges who have to adjudicate upon these situations, and you refuse to allow every case, and they are all different, to be determined on its own facts.
You have also, by meting out justice in the manner you have set out in this act, made an adjudication at first instance impossible and hence the opportunity to appeal, which is a basic right of every individual, absolutely meaningless. You have applied the workers' compensation meat chart to the area of support legislation.
You have also compounded a situation that already exists, and that the Attorney General has already acknowledged, that the SCOE office has an abundance of claims already in the system. It is difficult to administer those claims, and you are now going to force 25% more claims into the system than you need, all because you refuse to trust anyone who has indicated by his or her past history, which again has been taken away from a judge's determination, that he is able and willing to make the payments that he is obligated by law to make.
You have created a situation where people will be doing their utmost to try to avoid the system. They will run and they will hide. Experience has shown that you have not been able to find them under the old system. You will not be able to find them under the new system, and there will be more whom you will be looking for.
So I would urge the government members on this committee to look at these amendments and to inject into this bill by way of some of these amendments some flexibility so that this act will work and children will receive the support they need so that they and their custodial parent can live with dignity. Unless you make this act less restrictive and more flexible, you are prohibiting that from happening.
Mrs Cunningham: Mr Chairman, if you would permit me to make a few comments, as having participated earlier in the committee hearings rather than running in during the clause-by-clause. I guess one of the weaknesses of the system is that from time to time we have to share responsibility, so I hope you will understand I am not trying to come in here and take up time, but to get on record my concerns as I see them from having been a participating member of the committee during the public hearings, which I feel is probably the most important part of our democratic process at Queen's Park.
In those public hearings, I would like to remind the government members, and certainly the representative of the minister, the clause that in fact received the most attention and concern with regard to implementation was the clause that we are at this point in time trying to amend.
We ask legislative counsel and research people to help us in our deliberations in making good laws in this province. It would certainly make me feel somewhat more satisfied if I knew that we took into consideration not only their work but the views of the public who come before our committee.
On both those points I would like to draw your attention, Mr Chairman, and ultimately --
Mr Elston: That will not work, Dianne. We have tried almost everything.
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Mrs Cunningham: I know. I have been following the deliberations and I think the public of Ontario should be very proud to have some of the representations made on its behalf by the people who have been sitting on this committee, on both sides, depending on the clauses, but I am particularly concerned about the lack of input on behalf of the government on this clause, given in fact that this was the clause that received the most public attention.
I would like to go back to the beginning of my remarks, and I know that others have made them in a far more meaningful and experienced way than I can because I am not a lawyer, but I am a person who has been heavily involved in mediation, in supervisory and access programs and certainly the families over a long period of time, and I think I understand the nature of this very sad situation we find ourselves in in the breakup of families across this province.
We asked the research service to take a look at experiences in immediate income withholding for the collection of support payments and they advised us of a document that came to our committee in February, a report prepared by Susan Swift, the research officer of the legislative research service, and the paper was entitled Automatic Income Withholding: The Legislation and Experience in Several Jurisdictions. Was this one quoted already in the debate? Well, maybe we can add some new arguments here.
This argument is not anything that any of us should take for granted, other than the fact that we are being advised, based on past experiences, about immediate income withholding in support payments in the United States; and it was as recently as 1984, according to this report, that Wisconsin became the first state in the United States to use the procedure, so the process is fairly new as far as legislation goes.
Please, Mr Chairman, if I make any remarks that have been updated since I have done my work, I would appreciate being corrected by anyone, because I want to make certain that what I am saying is correct and that the minister takes due note of the Hansards on all of our behalfs.
It says here that, "It initially adopted immediate income withholding on a pilot project basis, making it a mandatory state-wide procedure in 1987."
I was very interested in the results, because I, like this particular government and the government before this government -- I should say governments before -- have never been happy with the statistics in this province.
It goes on to say that, "Other states have followed the Wisconsin lead and now more than half the states have implemented immediate income withholding." I would say, in interest, on what grounds, because we are about to do it here.
"Congress recently enacted legislation requiring all states, as a condition of future AFDC funding (general welfare funding) to adopt immediate income withholding in all cases. This requirement represents a change from 1984 federal legislation which had mandated income withholding only if the payor was in default of an amount equal to one month's support.
"Australia has also recently adopted immediate income withholding. It is apparent that the procedure is being used increasingly," and now we are falling into the trend, we might say.
"Unfortunately, except for Wisconsin, there appears to be very little assessment of the effectiveness of immediate income withholding. The experience may be too recent to have given rise to these types of studies. Even where evaluation has taken place, it is not a pure evaluation of immediate income withholding, because often other reforms have been implemented which would have an impact on the results."
I raise that as a caution, and I believe that, because there have been no conclusions that I can support, in the interest of families in the province of Ontario. I would raise the flag certainly to this government, and say that, since we have very little assessment of the effectiveness, is it really worth taking this tremendous step that is being contemplated by the government right now?
I think everyone on this committee agrees that we have to improve the compliance with support orders in this province. There is no doubt. At the same time, I think that we have to do it in a fair way.
I commend the government for taking a look at this as one part of a very big problem in terms of the challenges that families face at this difficult time. I just raise that as a caution. There is definitely no assessment of the effectiveness. So if any of you are saying that this will improve the statistics, I would advise you that you have been given this information by the research people here and you do not know if in fact it will.
You are hoping of course that it will. Then I would say, at what risk? If in fact this was a piece of legislation that we should have been looking at in any particular order, or this government should be bringing forth in any particular order, based on some plan with regard to support and custody, support payments, all the challenges we face in our court systems, the ineffectiveness that we share and know about as elected representatives of the SCOE offices, certainly we have had enough information come before this particular committee now and under the previous government to give us some good advice on what we should do first. It amazes me that this bill would be the one the government should choose to bring to the attention of this Legislative Assembly. It is not the one that I feel it should have brought first, and if it was brought at all, it should have been brought as part of a package.
The Attorney General is well aware of the research and the advisory committee's work on mediation and family law. The taxpayers in the province of Ontario spent a lot of money giving us some good advice. The recommendations of this particular report that were not raised -- did I say something funny or is something --
Mr Mills: No, we are looking at the TV.
Mrs Cunningham: Oh, that is funny.
The Chair: Mrs Cunningham, go ahead, please.
Mr Elston: Independent minded.
Mrs Cunningham: Independent minded.
The Chair: On behalf of the committee, I should apologize for our distraction.
Mrs Cunningham: I should have guessed that may have happened, but that is all right. I was thinking it was one of the other members who has a very smart-looking tie normally. Who is the member who sits close to Mr Rizzo who dresses to get your attention?
Interjection: Mr Perruzza.
Mr Fletcher: Peter?
Mr Harnick: Kormos, that is who it is.
Mrs Cunningham: Yes, that is who it is. Maybe we should put it in Hansard and present it to him tomorrow.
Interjection: The Italian caucus.
Mrs Cunningham: Exactly, the Italian caucus. Are people wanting to listen to the member?
The Chair: We have barely enough time to listen to you, Mrs Cunningham.
Interjection: I bet he is one of theirs.
Mrs Cunningham: I thought I was doing a pretty good job. I cannot believe that that boob tube is taking away from the presentation.
The Chair: Were you finished?
Mrs Cunningham: Let's go back to what I was going to say.
I feel that the issue we are trying to deal with, this whole issue of family law, of the quality of family life, of supporting families during times of separation and divorce, is a very serious one for our province and certainly one that all of us as legislators want to deal with in some way, but that does not always mean that the best remedy, the best support that we can give families would be in fact in making more laws, in putting more roadblocks in their way.
In the case of Bill 17, it is presenting a significant portion of parents who right now are paying their support custody and have a record of doing so, or some in the very near future who may find themselves in this situation -- and one has to just look over one's shoulder in life to know friends and neighbours and family members who are involved; we should be doing things to support these families. If you have a parent who is providing the support, who has a record of providing the support, who in fact has every intention of establishing a good record of support, they should not be interfered with by a law such as this bill, which says in fact -- and people will argue this one with me, but I think in the practice of reality, if people are provided with a tool that makes absolutely certain that they are going to get their support payments, even if, by law, their employer has to be involved, with no chance to do it on their own, in the tough circumstances and the emotion of the times, most good lawyers will advise their clients, often the mother, to say, "You've got a tool; use it." That is my greatest fear.
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I must say also that in discussing this with the minister not too long ago he did promise me that he would give our -- and I say "our" meaning the members of the Liberal Party and the members of the Conservative Party -- amendment some consideration. So we find ourselves here, with the minister obviously taken up in the House with the Constitution debate right now, having to present our arguments for this amendment without him being here himself, but certainly with his assistant able to take back our worthy arguments because we will try to get this through. If we cannot in this committee, we will certainly make every effort to do it in the House.
My plea today is that when we get the kind of research that is presented to us, when we know that a lot of work has been done on one of the components of the support system, and the whole report of the Advisory Committee on Mediation in Family Law -- and I would just like to read the conclusion, if I can, very quickly. I used to have this thing memorized; I do not have the paragraph. At any rate, the end of this report does say that mediation is something, given the recommendations of the report, that the government should be considering seriously. A lot of work went into it. It was of course the former Attorney General who in fact established this advisory committee, but many members of the present administration who advise this government feel very strongly about the usefulness of this report. As you look through what they say, one piece of legislation cannot stand alone in assisting families. So we should have been taking a look, in my view, at mediation first.
During the committee hearing of the legislation that was withdrawn by the Liberal government -- is that the correct term, the former bill?
Mr Elston: Yes, proposed. Actually, it was passed; it just was not proclaimed.
Mrs Cunningham: That is right. Well, whatever. What was the bill?
Mr Elston: Bill 124.
Mrs Cunningham: How can I forget? There were many members of the public who came before this committee which looked at Bill 124, and do you know what they told us would be the most useful support that they would see assisting them with family members? They very strongly asked that the government consider programs, and in fact the programs they wanted right across this province were programs that fortunately we in London, Ontario, have: supervised access programs. Many of the presenters, especially the professionals involved in these supervised access programs who came before the committee, pleaded with the government of the day to get on with it, support families, both parents, as they wanted to visit their children, as they wanted to be guided through the whole process of establishing positive relationships once again, as they wanted help and support and advice during these difficult times in their life. Put your money into programs and not into more laws.
So I am surprised, because the government at that time did not listen carefully, with due respect to my colleagues behind me. They were defeated at the polls, not because of that legislation but because of other pieces of legislation where they were accused of not listening. Their greatest objectors at that time in this House were members of the New Democratic Party, and now we find ourselves with a majority of members of the NDP party -- strike the word "party" from the record. I have been told 10 times and I will learn yet.
The point is, New Democratic Party members were very strong, both in their support for the advisory committee's work and in their support for putting money into programs, and here we are facing yet another piece of legislation. My great criticism of this committee and its work will be that they did not listen to the public.
On this resolution, more people have made presentations on this particular section of the bill, section 3b I think --
Mr Harnick: It is 3d.
Mrs Cunningham: -- section 3d, you had more input and more good ideas for change, and I expect to hear from the government on it before these deliberations are over. So I say you cannot deal with this issue in a piecemeal fashion. If the government feels it wants to respond on the two issues that I have raised, I would be very happy to hear from it, and I am sure my colleagues would as well, as would members of the government.
In going to the input that appeared in the analysis -- and the analysis I am referring to is the summary of recommendations for Bill 17, a report prepared by Susan Swift in February 1991 -- you can see where the input took place; and I think the staff sometimes, the support people whom we pay in this building must wonder if we ever listen to anything they do or any advice they give us, based on public input and based on research. They spend their life basically trying to advise us. Some days you just wonder if you learn anything from past experience or if anybody ever listens to members of the public.
As supportive as it is of the position I am taking, I know that on top of that you must have received a lot of letters, as I did, many of which cannot be documented. We tried to circulate interesting letters as far as possible. I certainly tried to pass on to our critic, Mr Harnick, anything that I received, and I am sure from time to time Mr Carr would also draw it to the attention of the committee. I would like an opportunity to read into the record just a couple of the letters. I actually have quite a file and these happen to be, believe it or not, at the top, so I probably think they are more important, but I do not really know. It does not really matter; it was all on this issue.
This is one of the constituents whom I represent in London, and there were many of them who appeared before the committee, unbeknownst to myself. It was not something I asked them to do; I certainly did not reach out. They obviously felt strongly enough to come, and I know that Mrs Mathyssen heard from them as well, because these letters are all copied to her, as well as my other two colleagues; that is, Mrs Boyd and David Winninger. This one is from Mr Dick, who lives on Doon Drive in the riding of London North, and he is saying:
"The difficulty I have with Bill 17 is that it completely ignores that entire class of honourable men representing the 20% who do make their support payments promptly and in full. These men represent the bulk of the support moneys paid in Ontario. To group this class of honourable men together with the 80% who can't or won't make their support payments...is unnecessary, unjust and even unconscionable. I submit such measures will make for a mockery of the law, failed careers and/or creative evasion -- to the certain detriment for many ex-spouses and their deserving children, and the budget of the Ministry of Community and Social Services.
"If you are still unconvinced, please note that since the enactment of the hardball Support and Custody Orders Enforcement Act, 1985, and the creation of the agency known as SCOE, compliance has actually decreased from almost 1/2 to 20%."
Now the government argues with those numbers, and that is fine. I guess statistics are what you want them to be, but I would suggest that the record has not improved with the creation of the agency. In fact, a lot of the criticism that came from the elected representatives here, and certainly the people who came before the committee, was of that agency and the work it is doing. It is overburdened already; why add to its burden with people who are already paying?
The Chair: Thank you, Mrs Cunningham.
Mrs Cunningham: Is it 6 o'clock?
The Chair: The House is still in session.
Mr Harnick: There is a late show; it is still in session.
The Chair: Any further discussion on 32?
Mr Elston: I may have some comments to make.
Mr Mills: She is not finished.
The Chair: Mrs Cunningham, I am sorry. I thought you were finished.
Mr Mills: You were cutting her off.
The Chair: My apologies. I thought you were finished.
Mrs Cunningham: Do you want to continue while the House is sitting?
The Chair: I thought you could at least finish your remarks and we could adjourn at that point. If the House is still in session, we would not have the capacity to continue debate.
Mr Elston: It would be better for the committee, though, if she were to return and provide some more up-to-date and reasonable and rational remarks for another sitting, but it is up to her.
The Chair: Do you have comments as well?
Mr Mills: Can I make a comment?
The Chair: Mrs Cunningham has the floor.
Ms S. Murdock: I believe I have been recognized by the Chair.
The Chair: Mrs Cunningham has the floor still and she has not finished her remarks.
Mrs Cunningham: I am not finished, Mr Chairman, and I do not think I could finish, in all fairness, in the next five minutes, so it is up to yourself. Obviously there are some people who want to make comments.
Ms S. Murdock: It is just that I had made an engagement at 6 o'clock, for which I am late.
Mrs Cunningham: Lucky you.
Ms S. Murdock: Yes, right, a briefing.
Mrs Cunningham: An "engagement," it sounds so exciting.
The Chair: Mrs Cunningham would then have the floor when we resume hearings.
Mrs Cunningham: Maybe I'll get an engagement one of these days.
The Chair: Mrs Cunningham would then have the floor when we resume hearings on Tuesday 2 April at 3:30 or thereabouts. Do we have a motion to adjourn?
Mr Morrow: Motion to adjourn.
The Chair: All in favour? We are adjourned. Thank you.
The committee adjourned at 1802.