CONTENTS
Monday 9 December 1996
Family Responsibility and Support Arrears Enforcement Act, 1996, Bill 82, Mr Harnick /
Loi de 1996 sur les obligations familiales et l'exécution des arriérés d'aliments, projet de loi 82, M. Harnick
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président: Mr Gerry Martiniuk (Cambridge PC)
Vice-Chair / Vice-Président: Mr Ron Johnson (Brantford PC)
*Mrs MarionBoyd (London Centre / -Centre ND)
Mr RobertChiarelli (Ottawa West / -Ouest L)
Mr Sean G. Conway (Renfrew North / -Nord L)
*Mr EdDoyle (Wentworth East / -Est PC)
*Mr Garry J. Guzzo (Ottawa-Rideau PC)
*Mr TimHudak (Niagara South / -Sud PC)
*Mr RonJohnson (Brantford PC)
*Mr FrankKlees (York-Mackenzie PC)
*Mr Gary L. Leadston (Kitchener-Wilmot PC)
*Mr GerryMartiniuk (Cambridge PC)
*Mr John L. Parker (York East / -Est PC)
*Mr DavidRamsay (Timiskaming L)
*Mr DavidTilson (Dufferin-Peel PC)
Mr BudWildman (Algoma ND)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Ms ShelleyMartel (Sudbury East / -Est ND) for Mr Wildman
Also taking part /Autres participants et participantes:
Mr KenGoodman, legal counsel, Ministry of the Attorney General
Clerk / Greffier: Mr Douglas Arnott
Staff / Personnel: Ms Susan Klein, legislative counsel
J-1617
The committee met at 1612 in room 228.
FAMILY RESPONSIBILITY AND SUPPORT ARREARS ENFORCEMENT ACT, 1996 / LOI DE 1996 SUR LES OBLIGATIONS FAMILIALES ET L'EXÉCUTION DES ARRIÉRÉS D'ALIMENTS
Consideration of Bill 82, An Act to establish the Family Responsibility Office, protect the interests of children and spouses through the strict enforcement of support orders while offering flexibility to responsible payors and make consequential amendments to certain statutes / Projet de loi 82, Loi créant le Bureau des obligations familiales, visant à protéger les intérêts des enfants et des conjoints grâce à l'exécution rigoureuse des ordonnances alimentaires tout en offrant une certaine souplesse aux payeurs responsables, et apportant des modifications corrélatives à des lois.
The Chair (Mr Gerry Martiniuk): I call the meeting to order. We are late in starting due to the proceedings in the House. We are governed by a motion passed by the House which states that there is no debate after 8 o'clock this evening, and for that reason I have requested that the clerk bring our supper into this room, which he will arrange, and you will eat either at your desks or wherever you wish to be.
The first order of business is to pass a motion confirming the report of the subcommittee of Wednesday, December 4, 1996, authorizing the removal of certain file numbers from written submissions given to this committee. May I have a motion to that effect? Thank you, Mr Johnson. Is there any discussion? If not, all those in favour of the subcommittee report? Carried.
Again, just for the purposes of making sure everybody is aware of the order of the House, we are to permit debate until 8 o'clock this evening, and thereafter there will be no debate and each amendment filed with the clerk prior to 12 o'clock today will be dealt with without debate. I remind the committee that the debate is unlimited, and I will recognize individuals not by caucus but by their number on the list and if they wish to speak. We will deal with the bill starting with section 1 and working numerically.
Going to section 1, we have an amendment filed by the third party.
Mrs Marion Boyd (London Centre): I move that the definition of "income source" in subsection 1(1) of the bill be amended by adding the following clause:
"(k.1) payments from the employee wage protection program under part XIV.1 of the Employment Standards Act."
I wonder if I could move that when someone makes an amendment, they proceed immediately to give the rationale for the amendment so that we can just move ahead in an orderly fashion.
The Chair: I think that makes sense. Thank you, Mrs Boyd.
Mrs Boyd: The rationale behind this was to be sure that when employees are subject to the employee wage protection program that the up to $2,000 that can be given them under that plan would be subject to collection through the family support measures. Counsel for the family support plan have told me that this is more appropriately put under the garnishment sections and that it is not necessary to have this particular subsection. Since they indicate to us that it is part of the section under garnishment, I am going to withdraw this motion.
The Chair: The amendment is withdrawn. Thank you, Mrs Boyd.
Mr Ramsay, I understand that the opposition has an amendment to subsection 1(4).
Mr David Ramsay (Timiskaming): Yes.
The Chair: All members of the committee should have received a bundle setting out the approximately 90 amendments, and they are numbered consecutively. For the purposes of the record, I will refer to the amendments in their numeric order. We are dealing with amendment 2. Mr Ramsay.
Mr Ramsay: I move that section 1 of the bill be amended by adding following subsection:
"Same -- default
"(4) If a payor fails to make a payment under a support order on the day the payment is due, the payor is in default under the support order as of the following day."
The reason I have moved this definition in the definition part of the bill is that in many parts of the bill default is mentioned but there is no clear definition of what default is. Because of the nature of this bill and the urgent need to pursue deadbeat dads who are in default, we wanted to have a clear definition that would delineate what default means through this time line, meaning the following day, so that the office could pursue this so the payee could get her money as soon as possible.
Mr David Tilson (Dufferin-Peel): I have been advised that under existing law this definition Mr Ramsay has put forward in his amendment is already the definition of default. It's therefore the position of the government that this motion is redundant and doesn't add anything to help the situation.
The Chair: I'm sorry, Mr Tilson, is that under case law, I take it, that definition?
Mr Tilson: I believe it's under common law, yes.
Mr Ramsay: I'll accept that.
The Chair: Do you wish to withdraw it or shall we vote on it, Mr Ramsay?
Mr Ramsay: I'll withdraw it.
The Chair: Mr Ramsay's motion is withdrawn. We now have section 1 without amendment. Is there any discussion in regard to section 1 as it stands, not with any amendments?
Mr Tim Hudak (Niagara South): That's a good section.
The Chair: Thank you. If there is no further discussion, all those in favour of section 1, unamended? All those against? It is carried.
Moving on to section 2, shall section 2 pass? Is there any discussion? There are no amendments. Carried.
Moving on to section 3, the government has an amendment.
Mr Tilson: I move that subsection 3(3) of the bill be struck out.
The section designates enforcement officers of the Family Responsibility Office as clerks of the court for the purposes of signing and issuing specific enforcement documents. The rationale for the government-proposed amendment is that in consultation with the judiciary the concern was raised by the judiciary with respect to this subsection. To address these concerns put forward by the judiciary, this motion would remove the designation of Family Responsibility Office staff as clerks of the court. The ministry staff would continue, in consultation with the bench and the court, to work out an administrative method for replacing the large volume of enforcement documents from the Family Responsibility Office.
1620
Mrs Boyd: I'm just curious, then, would you be anticipating, once you work this out, that you would want to bring in an amendment to this act to specify that, or how in fact would that arrangement that you plan to make with the court be made appropriate?
Mr Tilson: Mrs Boyd, I'm advised and I don't think that it would require an amendment. I think the existing law would enable the staff to do what is being proposed.
Mrs Boyd: I understood when we were talking about this at some point during the discussion on the first day this committee met that the explanation around this was to make the flow of documents go more quickly, that it was to expedite the flow of documents. We all know about the really serious problem in the courts and the delays that are caused because of volume and so on. It seems to me you're going to have to resolve that issue some way, and it feels rather odd not to have that resolution come to before you bring this bill forward.
Mr Tilson: If you want further clarification --
Mr Ken Goodman: We are working with the courts administration for the issuing of the documentation, and we don't think we need to make any amendments. If there were, it would be with the rules of the court; it wouldn't be with any statute with respect to the issuing of documents. We wouldn't need a further legislative change to our legislation for that purpose.
Mrs Boyd: You mean an amendment in the family rules?
Mr Goodman: It would only deal with the section of the rules which deals with the issuing of documents. We do not believe we need an amendment to that, but we're still working with the courts administration and the bench as to the best method of issuing our documentation.
Mrs Boyd: Good luck.
The Chair: Does that answer your question? I don't know why it was in in the first place if we don't need it.
Mrs Boyd: Exactly, and there was some point made about how important it was in order to expedite this whole act. It is very confusing if in the time between the time this act was introduced on October 2 and now there hasn't been a more thorough discussion about how this is actually going to be administered in an appropriate way. It's rather disappointing, to say the least.
Mr Garry J. Guzzo (Ottawa-Rideau): I support the position, but I want to make a comment that I find the reference to the consultation with the judiciary somewhat troubling. What is the judiciary's role in prejudging the document that we are dealing with at the present time?
I just want to go on record as stating that I find it offensive to have the judiciary involved, particularly in a subject that deals with the administrative arm, but even at the point of the sections that deal with enforcement or punishment. I don't find that an appropriate role for the judiciary. I don't know where they find the jurisdiction to do so. I know it has gone on in the past and will probably go on in the future. I'd just like to make those comments and indicate that the source has nothing to do with my support for the position.
Mr Tilson: Just to clarify, and I was the one who used the words "in consultation with the judiciary," it was representatives from the judiciary that contacted the Attorney General's office. We didn't seek out their advice; they felt obliged to provide their comments. The president of the family law association made comments as well.
Mr Guzzo: Just let me clarify. I don't care who sought out whom. I'm criticizing the judiciary for taking this step. I appreciate and I've experienced the feelings that sometimes do interject, but if you read this section with section 4 of the act, you really envisage a difficulty developing. Now I think we've cured it to some extent if we pass this amendment, but I harken back. We're always going to hear the argument from the judiciary about preserving the independence of the judiciary. Here's how the independence of the judiciary is devalued. How are you going to try and hold a person up as an independent arbiter when they've already expressed an opinion with regard to the legislation before it's been passed?
I don't think it's any role for the judiciary, and it matters not whether we sought out their opinion or they volunteered it.
The Chair: Is there any further discussion before I put the question on the amendment to subsection 3(3)? If not, all those in favour of the amendment? All those against? Carried.
We're moving on to section 4. The first amendment is proposed by the third party, number 4 of your package.
Interjection.
The Chair: I did not pass section 3. Thank you. We now are considering all of section 3, as amended. Is there any discussion in regard to section 3? If not, all those in favour? All those against? Carried.
Now we will move to section 4. Mrs Boyd.
Mrs Boyd: I move that subsection 4(1) of the bill be struck out and the following substituted:
"Assignment of director's powers etc
"4(1) The Attorney General may, subject to the approval of the Lieutenant Governor in Council, assign to any person in the employ of the Family Responsibility Office any of the powers, duties or functions of the director under this act, subject to the limitations, conditions and requirements set out in the assignment."
The purpose of the amendment is to get around a difficulty that we encountered on at least one occasion, and I rather suspect twice, under the previous law where the director was not available, was either taking a leave of absence or was in some other circumstance and we found ourselves unable to have the powers of the director to be assigned to someone else. I think that is an important change. When that sort of situation happens, there has to be some mechanism whereby, without appointing a new director of the Family Responsibility Office, you can have those duties assigned for whatever period of time.
I would think that would be appropriate, but it obviously is quite a different notion of assignment than is included in the act as it stands because it clearly limits it to an assignment to someone else who is a civil servant in the employ of the government, subject to all the privacy conditions of the government and definitely under a Lieutenant Governor in Council order.
Mr Tilson: Section 4, as it now reads, authorizes the Attorney General to assign any power, duty or function of the director to the private sector. I suspect this is one of the major philosophical differences between the New Democratic caucus and the government caucus.
As we understand at least the comments made by Ms Martel and Mrs Boyd, the NDP doesn't want any of the director's powers assigned to the private sector and they've made that point perfectly clear. They seem to be suggesting, and I think Mrs Boyd has just confirmed, that the legislation give the program the authority to assign powers to the family support staff and that the program be able to charge the payor collection fees. I believe that's what she's saying, although it's not clear in her amendment and she may wish to clarify that.
As I said, this amendment is completely contrary to the government's political philosophy, because the assignment of power in section 4 fulfils the Common Sense Revolution commitment to review all core businesses and to enter into partnerships with the private sector where it can provide services more effectively and efficiently.
1630
Section 4 as it now reads means that the program will be able to use any external resources that will support the achievement of the Attorney General's agenda, which is to maximize the support order payments that go to women and children. This could -- it may not necessarily -- include a private sector partnership to collect arrears. I know both Ms Martel and Mrs Boyd have indicated they're strongly against that philosophy, so for that reason we will be opposing this proposed amendment.
Ms Shelley Martel (Sudbury East): It's not only a question of partnership; it's a question of what's in the business plan in two and three years' time. What was clearly referenced in the business plan was an effort by this government to privatize the functions of the family support plan. You are quite correct that we are absolutely opposed to that.
I'd also point out some of the other folks who came before this committee who raised some serious concerns around the whole notion of privatization as well, both from the aspect of a private sector agency being able to make money off of the backs of women and children, money they are legally entitled to by a court order and, second, some concerns around the collection and the maintaining of people's documents. There were a number of people who spoke against it, and I'll just reference some of them.
Curtis and the SOS group: "Enforcement of family support orders should remain a government responsibility. Private collection agencies will have a greater incentive not to enforce difficult cases by using the powers under section 7 and thereby reduce their administrative costs."
Mills: "Reconsider this position. It's not clear how privatization will improve the plan with the implementation of user fees and threatening confidentiality."
Finally, there are some others, but CBAO: "There is no proof of the benefit of involving the private sector in enforcing support orders. There is a concern that the power to delegate the director's powers, including the exercise of discretionary powers, is overly broad."
Some other individual recipients also again talked about the fact that a collection agency or the Royal Bank or any other agency that the government envisions offloading this particular agency to will make money that is money that should legally go directly to the recipients and their families.
We are very concerned about what we see in the business plan, which is very clearly a move to privatization, and section 4 allows that to occur. Yes, we are very much opposed to it. We believe that with the added enforcement mechanisms that are contained in this bill, with some other changes around the director's discretion, for example, in section 7, which we have large concerns with, and some changes around opting out, the plan will be in a position to get at the difficult arrears situation that has been in place since the plan began, both under SCOE and then under the family support plan, and there will be many new sorts of mechanisms, unlimited sorts of mechanisms, to allow that to occur.
What we really feel is that where you are heading with this particular section is that you are setting the foundation, the groundwork, for the privatization, which we don't believe at the end of the day will be in the best interests of either the clients of the plan, the payors or, frankly, the employees who have just been hired to replace the 290 who were laid off and who, if the business plan is correct, will be in that position for two or three years and then may well be out the door because there will be no guarantee that successor rights will apply. In fact, they probably won't, under provisions we've already seen in Bill 26.
Mr Tilson: We could go on and on debating our philosophical differences, and that's your right to do that. There was one woman as well who made a comment that she didn't care how the arrears are collected, as long as they're collected. If the family support plan isn't collecting it or is unable to collect it, it may be that someone else should be able to collect it, if they indicate that they can do that. If there are parts of the plan that someone else can do better than the family support plan, obviously the government should look at that.
I think in a responsible position, you just don't take it because the family support people are the only people who can do it. Yes, this section does allow for it. It may be that all, it may be that some, it may be that none of this system may be privatized. Obviously the government will take a long, hard look at certain parts of it. But if there are accounts, for example, that have serious problems with collection or if it's been a long, long time, if the government's been getting nowhere, it may well be that, as opposed to getting nothing, someone else could take a stab at it. That is the rationale for this philosophy.
I know you will never in a million years agree with us. We can sit till the cows come home, because we've had this out many times before.
Mrs Boyd: First of all, I want to correct my own record and thank Mr Tilson for pointing it out. He is quite right: The motion should actually read, "I move that subsection (4) of the bill be struck out." You're quite right; that is what that meant, not 4(1), and then just a replacement of 4(1) by the motion that's in front of us. So thank you for pointing that out; I appreciate it.
The second piece is that, yes, there was one person who said she didn't care how she got the money, as long as she got it, at which point, as I recall, there was a discussion with the member for Ottawa-Rideau, who said, "Wouldn't it be worth it to you, if there were $60,000 outstanding, that 30% of that went to a bounty hunter to collect your money?" Our point is that, yes, there are collection agencies that for a fee -- and I think 30% is very similar to what we see in some of the collection agencies; it can go higher. That money belongs to the children; the 30% of the $60,000 belongs to the children.
What this government is contemplating is complete privatization of this plan. It's in the business plan. It's been made public in the business plan. It is very clear that part of the impetus behind that kind of privatization is to collect long-overdue arrears by using those who will go out and do that for a portion of the collected amount. That may be appropriate for private industry; it may be appropriate in some cases where there is a debt owed to an individual and they're used to collecting, say, 70 cents on the dollar. That is not appropriate in a case like this where the government has made a very big deal out of its emphasis on the responsibility of payor parents to fulfil their responsibility. What this means is that all of us are giving up, in the case mentioned, 30 cents on the dollar of what those children ought to have got. It isn't appropriate, it seems to me, for us to be taking that action in these circumstances.
It is very, very clear from the business plan that the government intends to completely privatize this. This is permissive legislation that enables them to do what they have already set out in the plan that was accepted last January for the Attorney General's ministry. The reality is not just some hypothetical, "Maybe we'll do this some time and maybe we won't," or, "Maybe it'll be part of it and maybe it won't." It is part of the business plan on which this government is basing its actions and which this bill is here to enable. We ought not to be mincing words about the reality here. Yes, there's a large philosophical difference, and that philosophical difference is very much rooted in whose money this is. The money is money that is owed to children for their support by a parent.
Mr Tilson: Ms Boyd, you are quite right. The way the bill reads, that's the way it sounds. I'm probably out of order in referring to it, but in the next government motion we are indicating, on page 2 of that motion, subsection (5) specifically, that those costs that you speak of wouldn't be taken off the amount that's owing to the recipient. They would be added on to the amount of arrears that's owing by the payor. I know that doesn't make you feel better, but to say that it's coming off the amount that's to be received by the recipient if the subsequent amendment carries, that will not be.
1640
Mr Guzzo: I wanted to make that same point. This might not be tasteful to many of us. I asked the question, as the member for London Centre suggested, for a purpose, because it's important to understand the feelings and the nature of the beast with which we're dealing here. Had that been a businessman, somebody in business for 20 years, who had been through the mill -- particularly in recent years in the economic recession every businessman in my area, and every professional to a certain extent, except the doctors, of course, has resorted to, I suppose, some form of collection agency from time to time, and as the member stated, 30% isn't unreasonable.
The issue is, when the children realize only $40,000 of the $60,000 in the example I used, what happens to that other $20,000? Has it disappeared or is it still owed? I can tell you now that in a lot of the courts, when it would be returned, on the basis of this legislation many of the judges would take the position: "You've got a receipt for paying $60,000. You owed $60,000 and there's nothing else owing." It has to be 100% clear that there's no discretion in the bench at that particular point in time. The fact is that they've paid $60,000 and the costs of collecting are reasonable, and when are they going to be reasonable? They're going to be based on the circumstances surrounding this. You can't farm everything out.
But after a certain age, an account has been dormant for some period of time, the person can't be located, notwithstanding all of the facilities at the hands of the provincial government in terms of tracing people -- it should be the best source of trying to locate people, but in many cases it isn't -- the private bill collector, sometimes utilizing a private detective, can locate. That's when some of these massive recoveries are made.
I share the concern of the member for London Centre. I'm just of the opinion that it has to be spelled out, and very clearly, that there's no discretion. The fact is that those costs have been incurred, they were reasonably incurred in light of the difficulties that the plan had encountered in trying to enforce under the normal circumstances, and the 30% or 25% that has been paid out is the responsibility of the payor, and there's still, in my example, $20,000 due and owing, and the judge is then obligated to enforce the collection of that amount of money.
You know better than most people sitting around here that there are cases -- I hope there are not many -- where we have to go outside the powers and the operation that we have at the present time. Interestingly enough, when you talk about an international traveller from Paris to Miami etc, such as that individual addressed, that's the type of person we are not going to be successful in collecting from. I think there would be very, very few.
But as long as it's clear, as long as it's spelled out that this is the obligation and that the debt is not extinguished in light of the reasonableness of the costs incurred, I think we're protecting the children more securely by doing that than by refusing to allow the use of a private operator.
Mr Ron Johnson (Brantford): I'll actually be very brief. Mr Guzzo said a number of things that I happen to agree with. As well, Mr Tilson made a good point: When you look at the cases where FSP has been unsuccessful, perhaps it is time to look at alternatives. That's what this is. Although it is somewhat permissive legislation to allow us to move in that direction, it's consistent with what we've planned in the past as well. We've talked about building partnerships with the private sector, and it's enabling legislation that builds on those partnerships. At the same time, it's important to understand too that if the next amendment passes the fees used to attain collection through the private sector will be attributed to the arrears. That's a very clear indication that the money belongs to the women and children; we recognize that. I don't think the government of Ontario is necessarily the best bill collector in the province. In some cases we need to look at alternatives, and that's what this provides us with. It's just an alternative.
Mrs Boyd: I would suggest that a much wiser course would have been to put in place, in an appropriate way, the enforcement provisions that are included in this bill, which we've already indicated we are prepared to support, and see how those work. This has been an incremental process. When the Liberals put their plan in, in 1987, it was unheard of to go after these dollars the way that plan suggested. They broke ground and found out that there were some problems with that plan. We changed it and we found that there continued to be some problems.
These enforcement measures have been suggested by the employees of the plan as ways to deal with this problem. We do not know what the effect of these enforcement measures will be. I sincerely hope that they come even a quarter of the way to meeting the expectations that some of the people who came in front of us had. I worry in a lot of ways that the effect may not be as strong as a lot of our deputants wanted it to be and as we would want it to be ourselves.
It seems to me that you do this in incremental phases. We can think of the individual cases that these people brought before us. We do not know whether the enforcement measures in this act would flush out that money or not. Many of the deputants thought it would. The reality is that what we're doing here is much broader than improving the enforcement of family support. What we are doing is passing a permission to hand this function, with all of its sensitive information and all of its very sensitive interrelationship with recipients and payors, over to a private enterprise.
This is not hypothetical. It's very clear in the business plan of the ministry that this is the plan. It is very clear from the proposals that have already come in from operations like the Royal Bank and Unisys that this plan is well along. This is not a paranoid fantasy of the member for London Centre; this is part of the work that's actually been done by the ministry. Let's not, when we talk about this, pretend that this is anything other than what it is. This section allows the government to hand over these very sensitive operations to the Royal Bank. What we're seeing here is a blanket permission for whatever group -- and the Royal Bank is the one it is most likely going to be -- to charge any kind of fee that they want now to the payor.
I'd much rather see the payor pay under these circumstances, because a payor who is able to pay and doesn't pay is the bane of the existence of all of us, and we all agree with that, but if you think our example, the $60,000 that is owed by a person who is sheltering his property under a sister-in-law and a parent, is going to be got at by the enforcement measures here -- that was the example where we were talking about these fees -- how reasonable is it for us to assume that if we hand this over to collection agencies that charge 30% or 40% in order to get it, you're ever going to collect that 30% or 40% over and above the amount that's owed? It is holding out false hope to people if you think that's what you're really going to be able to accomplish. It is not appropriate to do that until these other enforcement measures have been tried.
1650
I would suspect that a bill like this is going to have to be revised every four to five years. The ingenuity of those who try to avoid their family responsibility is just unbelievable. We know the extent to which people will go to avoid paying their support. When all of this gets put into place and it's tested out through the courts and we see whether it will work, there will come a day, five, six years from now, where we'll all be -- some of us anyway -- around a table looking at another bill that fills the gaps that this bill doesn't fill, because we will have learned more and payors will have learned more about how to evade.
All we are saying is, why don't you try, why don't you see what the family support plan could do with these enforcement measures before you make up your mind that the private sector can do it better? The problems that the family support plan had in collecting the arrears was because it didn't have these tools. They outlined what they needed. That's been there for a while. All of these changes in enforcement are based on the experience of the plan and what might have worked. To also give yourself, in the same bill where you're giving the family support plan those tools, permission to do what you always intended to do, the privatization of the plan, I find very offensive.
Mr Ron Johnson: I want to respond briefly to a point that was made by the member. We saw in this committee some presentations from women, many of whom I found were from very affluent past marriages, whose ex-husbands were doing very well in the private sector or otherwise, and who had in some cases been wives of very large business people who have done very well but who have been able to shelter, been able to hide from the family support plan. To assume that a private sector collector couldn't get 30% more than the arrears when it's added on, or 25%, whatever the fee happened to be -- maybe we have to look at some of the profiles of the cases that may go to a private investigator, an investigator who may see $60,000 in arrears and then ultimately may decide that they can attain that through the collection. I've got to tell you, the resources that they have at their disposal for collection are far greater than the family support plan has, in terms of the investigators and that sort of thing.
When you look at the types of families we saw here, and the types of cases presented to us, I think that it's feasible and I think that we can probably expect to see -- in some of those cases, of course, not all of them -- that the private sector may help us a great deal in tracking these people down and really work through the legal mess that we would have to go through as a family support plan to try and straighten that out and collect the fees. They'd probably be fairly successful at it, if I could hazard a guess.
But of course you're right, we don't know, and I don't think we're going to know until this happens. That's important to recognize. I don't think the expectation of the government is to run out when this bill is passed and pass everything over to the private sector. It's going to be used only in cases where it needs to be used, when all else fails. In doing so, I think we're going to see that there may be some success as a result.
Ms Martel: I wish that was the case and I wish all we were dealing with right now in this section was an issue of getting some help from the private sector to help with some very difficult cases that have not been enforced for 10, 15, 20, however many years. But when I go back and think about what is in the business plan, I have to say to you that I do not believe that what we are seeing here is just a tool for the government to enter into a partnership with the Royal Bank or some other agency to get some additional funds that the government doesn't believe will be gotten even with the new enforcement tools.
The business plan is really clear, folks. It's very clear. In two to three years, the direction of the Attorney General will be to have a private sector agency -- I assume it's going to be the Royal Bank because we already know the Royal Bank has proposals in to the government to run the whole plan -- the government will offload the entire family support plan to someone in the private sector, some agency, some organization.
That's what we see in section 4. Re-read section 4. It's very clear: "The Attorney General may...assign to any person, agency, body, or class thereof, any of the powers, duties or functions of the director under this act." Take that and take what you see in the business plan and recognize that what we are dealing with is the enabling provision right here, right now, that's going to allow the Attorney General to do that in two or three years, as is clearly envisioned in the business plan. I sat and listened to my colleague, in her speech on second reading debate on this, outline the provisions from the business plan that talked about that. They're very clear. That's the direction that's being taken.
What we're asking the government members to consider, I believe, is the following: Do you believe there is a role for government in ensuring that women and children who are owed money in this province get it? Do you believe that, yes or no? That's what we're asking you to consider.
Mr Ron Johnson: That's not what you're asking at all.
Ms Martel: Of course we are, because it's very clear to me and it's very clear as you read the business plan that where the Attorney General wants to be in two to three years is out of this business completely.
Mr Ron Johnson: That's a leap.
Ms Martel: He does not foresee the public sector having any role, having any involvement in these enforcement mechanisms. It will be handed over to the private sector. I ask you, Mr Johnson, just to read the business plan. That's all you have to do. It's very clear that's where he's heading, and he sets out the time line of two or three years in that business plan.
What we're saying here is that for the first time, in 1987, despite the problems with support and custody, a government recognized there was a public role to play, a very important public role to play. Despite the problems, that continued under us and we made some more incremental changes to try and get at the problem of arrears, which continues to be a problem. I don't doubt that; we all know that. We heard that from people who were here. But clearly where we're coming from is our belief that there is a significant role for the provincial government in this province to play in this plan.
The Attorney General's own business case said that our plan was the most cost-efficient of any of the other jurisdictions. I think that's something to be proud of. With the enforcement mechanisms envisioned in this legislation we can build on that, but clearly what I'm asking you to consider today is whether or not you believe the public should be served by the government ensuring that it continues to have a role to play, that it continues to believe that support payments and the enforcement of the same and making sure those get into the hands of family is a role that the government should be involved in and not one that should be offloaded entirely on to the private sector. Because clearly, when you look at the business case, and that's all I ask you to do, you will see that the Attorney General has made it clear that's the direction he wants to head in. He wants the plan to be offloaded on to another agency, no doubt the Royal Bank, but certainly another agency.
This section 4, which allows the delegation of any powers of the director to any person, agency or body, is the piece of the enabling legislation that will allow him to do that two or three years from now without ever having to return to the assembly to have this debate again.
Mr Frank Klees (York-Mackenzie): Just to speak to the point Ms Martel made, I don't think there's any doubt at all that this government believes it has a role to play, to use your words, in "ensuring" that these matters are looked after, but I think there's a clear difference between ensuring that something is done and doing it. What we're saying is that there is a clear role for government to ensure that it's done, and that's where compliance comes in, but we're not convinced it's necessarily the role of government to actually be in the business of doing it. I think that's where the difference is.
Mr Tilson: I just want to emphasize what the government is intending to do. The government is certainly going to look at privatization; otherwise this section wouldn't be here. As I said before, it may be all of it, it may be part of it, it may be none of it. We're not going to just go into it for the sake of going into it. Just as your government looked at the issue of privatization -- I mean, with respect to the collection system, you're the ones who started the negotiations going with the Royal Bank. We haven't thought up something new. The whole idea of the Royal Bank processing the collection didn't come from us. That came from the NDP government.
To say that we're going to tomorrow, or whenever this bill finally becomes law, privatize the whole system just isn't the case. That's what you're suggesting. I'm simply saying that we're going to look at everything. Obviously if someone else can do it better, more efficiently -- I'm starting to repeat myself -- we're going to look at it.
1700
Mrs Boyd: The member is absolutely right that with the collection functions we were in partnership with the Royal Bank in this case and would have extended that. I don't think there's any question about that because this whole issue of putting things on to an automatic withdrawal from an account, automatic deposit and so on was well under way when you took over and we felt that was very appropriate, but it would always be under the direction and clearly under the responsibility of the Ontario government in our vision.
What you are saying in subsection 4(1) is that not only can the person who is appointed hand over those kinds of administrative functions, and that's what they were, to the private sector, but they can "assign to any person, agency or body, or class thereof, any of the powers, duties and functions of the director under this act, subject to the limitations, conditions and requirements set out in the assignment," and of course we don't know what the assignment would be, so that gives cold comfort.
The reality is that what we are doing in the rest of this act is giving very extensive powers to the Family Responsibility Office: powers to withdraw people's drivers' licences, to withdraw permits for vehicles, to take action against joint bank accounts and so on. Those provisions, to my surprise, did not get as much rational argument against them as I would have expected us to hear in this room. I would have expected us to hear reasoned arguments about the infringements on people's personal rights that were involved in some of those enforcement measures. I'm sure a court will hear those from lawyers as this goes on.
We are conveying -- and we will agree with this; we are not opposing -- a huge amount of power to the Family Responsibility Office. What we are saying is that when you convey that kind of power and that kind of access to private information, that kind of access to the ability of people to make their living, to manage their lives, you want to be sure you retain control of that power. Under this act, the way it is worded, you haven't got that assurance.
You do not know at this point how much of the power and how many of the jobs might be handed over to the private sector, and there is no sense of what you would do to maintain accountability. If you sign a 10-year agreement with the Royal Bank and Unisys to do this plan and you don't like the way it's carried out, you get complaints in your constituency office, you're going to find yourself in court over a contract.
The reality is and what we're saying here is that this is too great an assignment of powers. It does not give the government of Ontario enough accountability measures to ensure that this very substantial amount of power that's involved in collecting these dollars is not going to be abused. I'm not saying it will be; I'm saying you have to maintain an accountability process that this section does not allow you to maintain. That's where our disagreement with it comes from.
The Chair: Are there any further questions or comments before I put the question? If not, the amendment has been corrected to remove section 4 and insert a new section 4.
All those in favour of Mrs Boyd's amendment?
Mrs Boyd: A recorded vote, Mr Chair.
The Chair: A recorded vote is requested.
Ayes
Boyd, Martel.
Nays
Doyle, Guzzo, Hudak, Ron Johnson, Klees, Parker, Tilson.
The Chair: The amendment is lost. We are now proceeding to item 5. I've asked the clerk and he has given me his opinion that, unfortunately, until 8 o'clock at any rate, we have to read in the actual amendments even though it takes a little bit of time, so I'd ask you to proceed, Mr Tilson.
Mr Tilson: I move that subsection 4(3) of the bill be struck out and the following substituted:
"Fees, etc
"(3) An assignment may, subject to any regulation made under clause 63(i.1), set out the fees, costs, disbursements, surcharges and other charges that the assignee may charge to the payor, or a method for determining them, how and when they may be collected, and may exempt the assignee from clause 22(a) of the Collection Agencies Act.
"Same
"(4) An assignee may charge fees, costs, disbursements, surcharges and other charges as set out in the assignment and such fees, costs, disbursements, surcharges and other charges may,
"(a) be in respect of services for which the director may not charge anything;
"(b) be higher than a fee, cost, disbursement, surcharge or other charge that the director is permitted to charge for the same service; and
"(c) be applied in a manner other than that provided in section 57.
"Same
"(5) Any fees, costs, disbursements, surcharges or other charges charged by an assignee must be charged to the payor and may be added to the amount of arrears owing by the payor and may be collected in like manner as arrears.
"Interest
"(6) For the purposes of subsections (3), (4) and (5), `other charges' includes interest at a rate prescribed by regulation."
This is the motion that I referred to in the debate on the previous motion of the New Democratic caucus. This section 4, as we have indicated in the debate previously, provides the authority to consider other options to collect support by permitting the Attorney General to assign any power, duty or function of the director.
Concern has been raised about the operation of this section, in particular that the recipients -- we're starting to repeat the debate that we had formerly -- may be forced to bear the cost of alternative methods of collection. So this motion is to amend 4(3) by specifying that the fees, costs, disbursements, surcharges and other charges that may be charged by an assignee are paid by the payor and not by the recipient. This amendment also stipulates that the charges may be collected as support arrears.
The Chair: Thank you, Mr Tilson. Is there any discussion regarding the amendment? If not, all those in favour of the amendment? All those against? Carried.
Mr Tilson, item 7 of your package.
Mr Tilson: I move that section 4 of the bill be amended by adding the following subsection:
"Use of information restricted
"(7) An assignee shall not use or disclose the information it has collected in carrying out any power, duty or function assigned to the assignee under subsection (1) except for the purposes of this act."
Again, this is a continuation of what the purpose of section 4 is, providing further options for the government to collect support. This amendment is in response to the concerns raised by the Information and Privacy Commissioner with the use and disclosure of information collected by an assignee under section 4. This new subsection states that the assignee can only use the information collected for the purposes of the act.
1710
Section 52 provides sanctions if an assignee, a director, officer, employee or agent of an assignee contravenes the provisions of the act. As a result of the combined effect of subsection 4(7), the one in this motion, and section 52, if any assignee should use information for any purpose other than carrying out the assigned duties under the act, they are liable to a fine up to $10,000.
Mrs Boyd: The only issue that arises is around whether an assignee becomes a public servant as defined in section 122 of the Criminal Code, in the breach of trust sections -- just a little something to think about.
Mr Tilson: We're talking about this bill, and as a provincial act it's a provincial offence. I can't comment on whether something contravenes the Criminal Code of Canada. I can say what contravenes the provincial legislation, which is what this amendment is trying to do. If you're asking for a legal opinion, I can't give you one. I can only comment directly on the provincial --
Mrs Boyd: I appreciate that. Anyone who is dealing with the kinds of financial circumstances and financial issues that are being dealt with when we talk about looking at the assets and liabilities of a person, when we look at their income and that sort of thing, becomes privy to a lot of information which, should it be used for their own gain, whether that be financial or political or whatever else, could be seen as a breach of trust if they are defined as a public servant. That's how section 122 of the code works.
The situation here is, and this is the question: Would you see your assignment as conferring on to a private agency the position of a public servant under this act so that if someone were to breach trust under this, they could also be looked at as having committed a criminal offence?
Mr Tilson: When I read section 4, my immediate reaction is that the answer to that is yes, but I'm reluctant to give that because you're asking for a legal opinion, and I don't know whether I'm able to do that. Although we have lawyers all over the place here, I don't know whether we're able to provide an opinion on whether a specific provision of the Criminal Code has been contravened. I don't know that.
If you're asking, "Have the obligations and duties and responsibilities of a government official been assigned to a private agency?" yes, they have. That's what the section says, so my immediate answer is yes, but I qualify it: That obviously would have to be clarified by someone who's aware of that provision of the Criminal Code.
Mrs Boyd: I have every confidence that this section of the code will be looked at with great interest over the next few days, and at some point before third reading you may well have some information about whether or not this would convey that status on somebody. I would appreciate it, if you get that information, whichever way it goes, if you would let us know whether that is correct.
It never arises, of course, if this is being done by people who are part of the civil service of Ontario, because obviously their fiduciary responsibility under their status as a public servant is clear. It's when you start to assign these tasks outside of the direct public service, or contractually under the indirect public service, that you begin to get into this kind of difficulty, and I think it is an issue because of the sensitivity of the financial information that's there. One of the things that surprised me in our hearings was that we didn't have more payors coming forward to talk to us about their vision of the invasion of privacy that this act might do.
We have had from the payors' side the ongoing concerns raised by groups that are more concerned with access and custody than they are around the issues of the privacy of their financial information, although I'm sure that wouldn't be true of some of the examples of payors that were raised in our hearings by recipients, and we can all imagine that.
Far be it from me to be the one speaking on behalf of those delinquent payors, but it strikes me as a concern I would have if -- I don't think a $10,000 breach, under your penalties section, would necessarily be sufficient to prevent someone from using the information they gained about private stock and private property and the sale of that or the potential sale of that in the long run if there isn't some other protection. Certainly the sections of the act that cover fraud and conspiracy for fraud are hard to apply. It's just a worry.
Mr Tilson: I don't know whether I can add anything more to what I've already said, that the intention of the section is for the agency to be in the shoes of the government. It's a legitimate question, and I guess the only thing I can do, Mrs Boyd, is to ask the staff to look into that legal question. The $10,000 figure, as I understand it, came through discussions with the commissioner. I don't know whether there's any magic to that, but that's where the figure came from.
Mrs Boyd: It's the usual one. I wouldn't disagree that as an offence under the privacy act that would be appropriate.
The Chair: If there's no other discussion, I put the question. Shall the amendment pass? All those in favour? All those against? The amendment is carried.
Shall section 4, as amended, pass? All those in favour? All those against? Carried.
There are no amendments to sections 5 and 6. I'll put them both together. Are there any comments? No. Shall sections 5 and 6 carry? Carried.
Section 7: Mr Ramsay has the first amendment on page 8 of your brief.
Mr Ramsay: I move that subsections 7(1), (2) and (3) of the bill be struck out.
We're talking here about a program that enforces a court order, and that a judge, after a hearing and giving due deliberation to what she or he has heard at that hearing, brings down an order. It's the obligation of this program to enforce that order. In looking at section 7, the various reasons why the director is empowered here to refuse to enforce a support order I don't think are sufficient to overrule what the judge had decided.
I think the court order should always be supreme, and even though there may be difficult and extenuating circumstances from time to time as to why it might be difficult to enforce that order, it has to remain the duty of the program to seek compensation for the children.
1720
Mr Tilson: This issue of section 7 received great comment by members of the opposition in particular during the hearings, and I expect we will today as well. The government is opposing this amendment on the grounds that the Family Responsibility Office must be able to refocus its resources on recipients it's able to help rather than dictating them to cases where enforcement is unable to be carried out or where it's unreasonable or impractical to carry it out.
We're not talking about statistics but about the beneficial allocation of resources. The cases will only be closed after all exhaustive efforts have taken place over a period of time, during which time the case will be reviewed more than once. Cases have to be closed as opposed to suspended -- I know that's a major concern particularly of Ms Martel and Ms Boyd -- so that recipients are free to enforce on their own, if they choose. That is the rationale for that.
Recipients are free, as I've stated several times during the public part of the hearings, to come back into the program at any time or times if a case has been closed under section 7. The Family Responsibility Office will be able to reopen this case easily if new information is obtained by the family support people, by the recipient, by anyone.
On that basis, the government will not support this motion.
The Chair: Is there any more discussion regarding Mr Ramsay's motion? If not all those in favour? All those against? The amendment is lost.
We'll move on to item 9 of your brief.
Mrs Boyd: I move that the portion of subsection 7(1) that precedes the clauses be struck out and that the following be substituted:
"Director may suspend enforcement
"7(1) The director may, at any time, suspend the enforcement of a support order or of a support deduction order that is filed in the director's office if, and only if," then it goes on. There are other amendments, but that is the preamble.
The rationale is that when the Attorney General came before us, he talked about the various reasons why something might be unenforceable and said this is something the plan does. The plan "suspends" enforcement, which is very different from "refusing" to enforce a support order. The language here, "may at any time refuse to enforce a support order," changes the entire nature of the family support plan.
It gives power to the director of this plan, and because of section 4, which has already been passed to anybody that director assigns powers to, to overturn the ruling of a judge made in the court. It is completely inappropriate for us to create legislation that gives any official the power to refuse to enforce an order of the court, absolutely inappropriate for this Legislature to ever take that action, but I'm quite convinced by the representations of the ministry that there are situations in which the enforcement measures that the plan has at its disposal should not be brought to bear at every moment on every order because there are reasons why the director might make a decision that those enforcement measures are not going to be fruitful, given the particulars, and we go into the particulars in the subsections underneath this.
The reality is, and it is clear in the business plan of the ministry, that when this plan is turned over to the private sector, one of the reasons a private sector assignee might decide not to enforce an order is that they would not make enough money from enforcing the order. It's very clear that there has to be an incentive for the private person to in fact enforce these orders. If it is too difficult, if it becomes too onerous or if the amounts collected are so small that the fee that can be charged now to the payor would be too small, then the incentive is not there for the private investor.
This refusal to do an order is specifically to make this a profitable business for whoever the ministry turns over the family support plan to, and it is not, in my view, appropriate to the public policy reasons why we have a family support plan in the first place, nor is it appropriate for us to be giving permission to either a public servant or a private operation to refuse to enforce an order that has been set by a court.
Mr Tilson: In response to the motion, the government will be opposing this motion. We have pointed out in the past, at this committee and in the House, that this isn't something new. In fact, I read some figures, a statement to the committee, indicating the number of cases that had been closed. What this section is doing is to codify what went on under the old plan. The program, as we have indicated, will cease enforcement on cases where it's clear that recovery is not possible. We've made that clear. The various subsections elaborate or, to use the word, codify what can be done. The director will remain accountable to the Attorney General for the manner in which he or she fulfils this statutory obligation.
Mrs Boyd is suggesting that this is something new. I don't think that's what she means, but that's what is coming out, at least, and it's not new; it's been going on for some time. As I said, what this section is doing is to codify what has gone on before.
Mrs Boyd: The member is quite mistaken in his characterization of what went on before. The cases were not closed. Enforcement didn't happen. Cases are only closed under the current law -- closed, withdrawn, not there -- because the obligation within the order has been fulfilled or the payor has died and the estate has been dispersed. Those cases have been closed.
The reality was that the director, indeed, has not vigorously enforced, has suspended enforcement of some acts. But I can assure you that if in fact cases were actually closed, it was done against the statute and not with our approval. We understood about suspending enforcement in those cases, but I need to make it very clear -- and this may be an example of where even under the current circumstances a director of a plan has not been accountable to the government of the day, if in fact cases were literally closed and withdrawn from the plan and are not part of the arrears that are being counted. I find that very difficult to accept. If that is the case, then in fact we have right in front of us a case where the plan, even as it is now, has not been accountable.
1730
Ms Martel: I think the point that is being raised is significant because, clearly, in the legislation that is before us under section 7, we are giving someone, at this point a director of a plan that will remain in the public sector for two or three years, the authority to make a decision to close a file. At a certain point, two or three years down the road, if all goes well according to the business plan, we will assign that responsibility to some other agency, in whose interests it will be to close any number of files that are difficult or complex to enforce because it will be too costly to try to enforce those same cases.
Do any of us really think that someone who has outstanding arrears for a long time, where the payor has tried every which way to Sunday to avoid payment, and we heard a number of those cases here -- what collection agency is going to spend any time whatsoever putting someone on to that case to spend lots of money to try to track that payor down and try to enforce payment? I submit to you that very few people in any agency are going to be prepared to do that.
What I see happening in this section, which bothers me a great deal, is the government putting in place the permissive legislation that will allow the director of a private sector agency to do just that, to close down difficult or complex files.
I don't think that's where we want to be. I don't think, given everything we heard from the people who came before us about their individual cases and their great difficulties in trying to get support payments, that we want to be in a position of allowing the head of a private sector agency to at will close down an order that was put in place by the court, which neither that director nor frankly this government has any business closing down.
Mrs Boyd made it very clear that her experiences, having been Attorney General and having had responsibility for the plan, are that there were any number of files that were suspended. As I recognize the numbers, in relation to 149,000 court orders, those numbers were quite small. But she clearly outlined under which circumstances a case would be closed, ie, when the payor is dead. A number of files no doubt would have been suspended because the payor, eg, might have been in prison, might have been on social assistance, and clearly those reasonings continue to apply under section 7.
But I submit to the Conservative members that there is a very significant and very important difference between the director having the ability to suspend enforcement for a time because those enforcement activities cannot be carried out for a variety of reasons at that time and giving that director the same ability to make a determination to close a file, which would be quite contrary to the power that has already been established by a court and quite contrary to the responsibility the plan should be undertaking as per a court order.
I heard the parliamentary assistant say, "You have to allow cases to be closed so that recipients can enforce on their own." I don't think during the course of time we had people before us that very many of those recipients had any luck on their own taking enforcement activity and getting some money. I don't think we heard that. To say that that's one of the reasons why we have to allow the closure to take place, this is not the circumstances and the experiences of people who came before us. They had luck neither within the plan nor on their own. That can't possibly be used as a legitimate reason why we would put this section in.
I really ask people to consider the difference, and there is a significant difference, between closing a file and leaving it sit and having in reality only the recipient ever come and start action again and allowing the case to be suspended for a time and, when new information comes into the plan, to have some mechanism, through the new technology that's going to be in, to allow those cases to be reopened, whether that payor comes back into the province, whether he or she applies for a driver's licence, whether third-party assets are found etc. I think there is a huge difference and we all ought to recognize that.
Mr Tilson: This is the second of three or four issues before us on which we fundamentally disagree. I can only say that the policy before this bill came into being was that files were closed. They were administrative closings. They were not pursued. They were based on administrative policies. It was as simple as that. They were, in the wisdom of the people who were administering it --
Mrs Boyd: Suspended.
Mr Tilson: Well, you say, "Suspended," but the fact of the matter is that they were not pursued. There was no way, until further information came, in which they could be pursued. It was as simple as that. Ms Martel has mentioned the issue of someone being in jail. Someone has disappeared; someone is ill. I'm just trying to think of reasons under the current system. Someone is ill and simply may not have the resources; they may be all gone.
Obviously, to put staff on that collection process would be impractical; it wouldn't be practical to proceed. In the wisdom of the administrative staff in those situations, they would deem those files closed, and they wouldn't be pursued until further information came back. I can only repeat that what the government is doing is simply codifying what has gone on in the past.
Mr Ramsay: Mr Tilson, I'd just ask you to consider this point, because I think we all want this to be effective: As you progress with your business plan and you privatize, eventually, the collection of this, this section here could really skew any sort of real verification and performance rating of how the agency is doing, because the agency, when it finds itself having difficulties in collecting, could then say, "Well, we suspend using section 7; for one of these reasons here, we're suspending that case," and could always show a performance rating of, "We are collecting about 98% of our enforceable judgements," because they've already sorted out the bad ones.
They could show a very high performance rating and make the plan look, "Well, this is very good," but yet we could have thousands of recipients complaining because they're not getting what is due to them because the director of the plan, or maybe it's going to be the president in this case of the agency, has deemed them to be unenforceable. That's a concern.
I think all of us around this table want to ensure that if you are going to be going down this route, we have some accountability. How do you gauge the accountability? In this type of thing it's pretty simple: How successful are you? How many cases do you have, and how well are you doing? What percentage are you collecting? I wouldn't want to see anything get in the way of proving what the performance is of that agency and making sure it's doing the job we all want it to do.
Mrs Boyd: Mr Ramsay has outlined very clearly what one of the concerns is, and that is, we know from the business plan of the ministry that the whole plan to privatize this is based on the ability of the private operator to determine what is cost-effective in terms of the profitability of their operation. We know that. It's spelled out quite clearly in the business plan. One of the issues in the business plan is that there needs to be a capability of closing files that are not going to be profitable to the private operator. It's very clear in the business plan. I'm not making this up, you know.
The reality is that this is a necessity for the government in order to continue with its proposal to farm this out to the Royal Bank, with another partner, probably Unisys, because they have made it a condition of their interest in this. They have been very clear that they will not do this unless they can maximize their profits. That's what it's all about when you privatize things.
The only way, in a plan like this, where there clearly is difficulty in collecting the dollars, is to close files that are an embarrassment and that are going to cut down on the amount of money that you can make, that are going to cost too much. The business plan says very clearly that where enforcement is too costly or where enforcement is too time-consuming, these are the measures of efficiency, which are very different when you have a privatized plan than when you have a plan whose focus is to ensure that money gets into the hands of children and their custodial parent. It's a very different prospect than making dollars out of enforcing this plan.
1740
I would say to Mr Tilson, the reason that we didn't simply say, "Okay, wipe out subsection (1). We want you to withdraw it altogether," was that we believe very strongly it is important to put legislatively into place a way in which enforcement can be suspended when it becomes difficult. That was a great difficulty for the plan in the past when they weren't actively enforcing some files for some reason, and that was something the staff in the plan had asked for, some way to legitimately suspend enforcement when it became that kind of situation. But it is going to be important, particularly given the emphasis that the Attorney General and the other speakers on this bill and on other issues that have arisen about this plan have made about the unenforceability of it on the arrears that are outstanding.
Those arrears are not owed to the government. Those arrears accumulated under a court order and they are owed to the recipients. The parliamentary assistant told us that this would in no way affect the court order; the court order is still in place. Those arrears are still accumulating, and the only reason to allow this plan to close the files is exactly as Mr Ramsay says: to make the performance of a private operator of this plan look good or, in the interim, the performance of the Attorney General's ministry look good. If you start closing files, if from 150,000, instead of going in a month, as we might expect, to 151,400 files, you drop back to 145,000 files, all of a sudden the performance looks better because the arrears of those extra 5,000 files are not there and they do not look as though they are a problem. But the arrears are still there in terms of what's owed to the recipients. The arrears are still there according to the court order. But no one's keeping track of those and everyone suddenly is under the illusion that everything is working well when it isn't. That's why this is such an important issue.
In order for the plan to operate efficiently and effectively, yes, we agree there are circumstances in which enforcement ought to be able to be suspended for various reasons and those reasons outlined, because we know that otherwise there's a problem. But when you suspend enforcement, you don't have those files disappear and you don't have those arrears disappear. They still accumulate, and what you do is keep track of the number of files that you're not actually enforcing and for what reason. Then you keep the accountability in the system.
Mr Klees: I'd like to just get some clarification on this issue if I could, and perhaps the parliamentary assistant or staff could help me with this. My understanding of the intent to close a file is for administrative purposes, that we, during a period of time when the determination is made that enforcement of a particular file is no longer possible or is at least temporarily not possible, is not cost-justifiable, that, as Mrs Boyd has said, there's a legitimate reason to suspend enforcement -- clearly, as Mrs Boyd said, those arrears continue to accumulate. The arrears don't accumulate because of the plan; they accumulate because of the order, and it does mean that the files are closed strictly for administrative purposes.
If those arrears continue to accumulate, and if after a period of time the person who is owed those arrears wants to reopen the file and there's been some change of event that gives the individual reason to believe that perhaps now there is an opportunity to realize some benefit from that file, at that time when an application is made again to the plan to enforce is it not a fairly simple administrative procedure to bring the file back up to current status?
In other words, if on a monthly basis the arrears haven't been tracked, so you're not putting a clerk on that file or you're not monitoring the system on a monthly basis, is it not fairly simple administratively to then do the retroactive calculations to the date at which the new application is being made? So if the arrears started off at $10,000 when the file was supposedly closed, you do the calculation again at the time that you want to reopen it and now the arrears are at $25,000 based on the number of months that haven't been paid.
The reason I'd like clarification on that is because I think Mrs Boyd --
Mr Tilson: I think we've got a problem, Mr Chairman.
Interjections.
Mrs Boyd: Motion to adjourn.
The Chair: I understand it is improper for this committee to sit while the bells are ringing. Excuse me; we'll get a ruling. I understand there is no actual rule about sitting on committee while the division bells are ringing. However, there should be time to get to the House, and I would suggest that we continue until the 10-minute time. Is that suitable?
Mrs Boyd: May I suggest a five-minute time, Mr Chair? We're just down the hall. We're on the same floor.
The Chair: Five minutes? That's fine. Okay, where were we? Mr Klees.
Mr Klees: I'd like to pick up where I left off, because I share Mrs Boyd's concern that what we don't want to have happen is that there is simply a cosmetic result here. Somehow we have to assure the benefactors of an order that their file will not be lost track of, that there will be a continuous tracking, if not monthly, so that when they revisit the plan they will have the benefit of the calculation being brought up to date so that we're dealing with the then-current figures. Can you enlighten us in terms of what the intent is in that regard?
Mr Goodman: Under subsection 16(6), either the recipient or the payor would have the right to refile with the program at any time. This right applies even if the case has been affected by the operation of section 7(1), ceasing to enforce. What would happen at that point in time, and you're looking probably in most cases at a recipient wanting to come back into the program for enforcement, is the recipient would be giving an updated statement of arrears, which is just to clarify what the status of the account is since the time the case has been out of the director's hands for enforcement.
They would be using the same file number. The case number would remain the same because all orders, when they're made in Ontario, will still be filed with the program. It would be reactivating that case they had before when they're coming back in, so whatever was on the system before would be reactivated.
Mr Klees: Okay. And at any point in time between the time the file has been administratively closed and the time that a new application, or a reapplication, is made, if I were to ask the question relative to that particular individual as to whether or not there are arrears outstanding, what would the response be?
Mr Goodman: When the file is no longer with the director's office for enforcement under section 7? During that period of time we wouldn't have any accurate information as to the amount of arrears.
1750
Mr Klees: But you would have the information as to what the arrears were at the time the case was closed.
Mr Goodman: Yes.
Mr Klees: That would still be on record.
Mr Goodman: What I would anticipate you would have is information which would show what the arrears were at that point in time, not necessarily that would be carried forward on the records, but they would show what the arrears were when the case was acted on.
Mr Klees: You used an interesting term and I would like clarification on that. You said when the case was still "with the director." What does that mean? When you close a file, then, where does the case go if it's no longer with the director?
Mr Goodman: The physical hard copy of the file would be sent to an archives facility. The government maintains an archives facility. But you would still have the electronic system and records from your electronic system. You don't shred or destroy the files.
Mr Klees: So the actual physical file would be in an archive; I understand that. But again, getting to the heart of what this is all about, at the time that I make my call to you and I say, "file 2000," could you tell me what the status of that file is? Would the director still be able to say: "We have closed that file. The last date of action on that file was three years ago. The balance outstanding at that time was $10,000"? Would we at least still have that kind of information?
Mr Goodman: Certainly, if we're speaking to one of the parties on that information, I would assume we would tell them what we had historically from the case number.
Mr Klees: So if we were to look at that time at the overall plan, would it be the intention that the total amount of arrears outstanding would include the arrears on those cases that we have considered closed?
Mr Goodman: No. You mean, would they be shown as arrears outstanding on the books of the director for that instance?
Mr Klees: Yes.
Mr Goodman: No, I would not anticipate that.
Ms Martel: Exactly.
Mr Klees: The reason I wanted to follow that line of reasoning is because I think there should be room administratively for us to correct that if in fact you're saying it wouldn't show. I think it makes a great deal of sense for us to know what the total amount of arrears is in this province at any given time.
I'm not saying we need to go through the cost of tracking that monthly and adding all the interest on and so on, but I think it is important that we don't lose sight of the fact that those arrears are in fact owing, they're owing to real people in this province, and I don't see a reason why administratively we couldn't do that. I'm not suggesting that legislatively we need to entrench that, but I am suggesting that administratively it makes a great deal of sense for us to protect the integrity of the program to have that kind of information.
Mr Tilson: There were several issues raised by Mr Ramsay, Mrs Boyd and Mr Klees.
With respect to subsection 16(6), which has to do with the refiling, obviously the recipient under that section would simply file a notice -- and I hope Mr Goodman will correct me if I'm wrong -- plus a statement of arrears. Based on that statement, there would be a recalculation of the arrears. It would be very simple to recalculate it, going back. The order continues; it never stops.
You mentioned the hard file. It's very easy to retrieve a hard file. It might take some time, but not an unusual period of time. At the same time, there would still be the electronic filing, which is still there. Would you say I'm correct, Mr Goodman, to there?
Mr Goodman: Yes.
Mr Tilson: After that amount has been recalculated, the enforcement would begin. We believe that if new information is brought forward by a recipient, the process to revive those files is very easy and very simple and can be done very quickly to retrieve the files and to proceed with the collection.
Mrs Boyd raised the question of the accountability or review of the agencies. I keep harping on the issue of privacy, which was perhaps the point raised by Mr Ramsay. Notwithstanding what happened in any business plan which the two NDP members repeatedly talk about, our government has talked about privatization in all kinds of things, and if it doesn't work, if it's not going to be economical or if it's not going to provide the service to these people, we're not going to do it. It's as simple as that.
If they felt the service could be provided better, could be provided more economically, if a collection could be made whereas the government for whatever reason can't make the collection -- I'm just shooting off examples here; someone may have some better examples, but those are the examples I can think of -- the Attorney General would enter into an assignment, and the terms of that assignment would be that there would be a performance review, just like anything else the government enters into with respect to any other form of assignee. Therefore, there would be a performance review made of the assignee from time to time, pursuant to the assignment that was entered into with the Attorney General.
Mrs Boyd: If what you have said is true, that the assignee would not have to keep track of what was really owed under the orders but only the orders being enforced by the plan, then accountability would not be there. The reality is that this gives every incentive to an assignee to close difficult files so that their performance review looks better, and that's exactly our point. Part of the performance of the plan, and it's been open to public scrutiny, always has been: What is owing and what are they collecting? It's always shown that there is a huge amount owing that is difficult to collect.
All of a sudden, you're changing the act so that anyone who is assigned this responsibility can make their performance look good by closing difficult files. You will not know what the total amount of arrears is because you will only know at the moment the file was closed that so much was owing, not the accumulation of arrears since, as has been the case. This really is a method of trying to show, whether it's the government itself or an assigned agency, that the plan has suddenly become more efficient and effective when in fact it may not have. What may have happened is that files are closed, the arrears are not accumulating, and no one knows that all this has disappeared. On the surface it looks very effective, it looks very efficient, it looks as though it's wonderful.
The concern we have is that when you're spending slews and slews of money trying to enforce something that for one reason or another is not easy to enforce, yes, you ought not to have to keep spending those resources pursuing it; you should be able to suspend the enforcement. But you shouldn't be able to suspend the accounting of what has happened to those files. The accumulated arrears, the accumulation of dollars that we as citizens have not been able to see given to the recipients under a court order, should be immediately transparent to all of us.
That's one of the most important things about this plan: getting the public to understand how much it costs all of us if a support payor does not fulfil his or her obligation. That's the whole crux of this plan and the whole reason it was made transparent, so that people would understand how much it costs us as a society when family responsibility isn't being observed. What you do by allowing this closure of files is to mask that.
There is no reporting function here about how many files and how much the dollars are or what the implication of that would be, because you've said that you would stop keeping track of that. There is no way for the public to know and every reason for the public to assume that all of a sudden this is much more effective than it will be under this act. I think that is a breach of our accountability in terms of this plan. These dollars do not belong to the government or to the private company; they belong to recipients.
1800
I have a question with respect to the reactivation of the file. When we define "recipient," are we defining the custodial parent who is the person to whom these payments are made or are we talking about the children themselves? One of the issues that has arisen is, what if the children to whom these moneys are supposed to be paid want the file activated and the adult custodial parent is not the requester? What would happen?
Mr Tilson: I can only look at the definition of "recipient" in the bill. Perhaps it would be more appropriate for Mr Goodman to respond.
Mr Goodman: It would only include the child, the subject matter of the order, if the child was named as the person to receive the payment. There are cases where they either change it or they start off on that basis in the first place.
Mrs Boyd: In most cases, orders read "the custodial parent of the child."
Mr Goodman: Yes. Normally, that's true.
Mrs Boyd: So a child who did not agree with a parent's decision under either section 7 or section 16 would have no recourse to their parent's decision under what you've put in here.
Mr Goodman: Not under the legislation. They would have to go back to court, have the order changed to have it payable to them, and then they would be able to file because they would then be the recipient and meet that definition, but not simply by being listed as a person for whom an obligation exists.
Mrs Boyd: And of course if the file is closed, then five years later a child is going to know that this is an option they have.
Mr Tilson: Excuse me --
Mrs Boyd: I'm being sarcastic. Obviously, part of the problem with restarting files is that you make an assumption that everybody who's owed money by the plan has the sophistication to understand that at any moment they can reactivate the order. The reality is that people don't have that and children owed the money under the plan don't have that opportunity in many cases unless they go back to court. It's really not the simple, "Oh, just reactivate the plan" that we're hearing. It may mean there's a disentitlement forever as a result of this.
Ms Martel: Let me follow up on that point, because it is a very important point. All of us who listened to any number of recipients obviously saw that many recipients very much stayed on top of their individual files, and when they had new information about any aspect of it were quick to report that to the family support plan.
There were others who came here and others whom I know, for example, in my own riding, who want nothing to do with the payor. They don't want to be responsible for trying to track him down. They don't want to know if he's back in the province or living near them. The nature of the relationship and the nature of the breakup which led to the order and their estrangement is such that they never want to be responsible to know where that person is again and probably hope they never see him or her again.
For us to assume that under section 16 it's quite a simple matter for a recipient to call in to the plan or to lay some new information on the table about the whereabouts of the payor which would reopen the file -- I think we're all kidding ourselves if we believe it's that kind of simple matter. It's not. There are thousands of women out there who never want to be involved with that payor again, who (a) would probably not understand what their rights are under this legislation once a file is closed, would no doubt assume that once it's closed it's over and that's the end of their expectation to ever have enforcement; or (b) would not make the kinds of inquiries that would be necessary to reopen a file, as I see under section 16.
We can't lose sight of that, because that is the case, I suspect, for thousands and thousands of women, and it will not be just a simple matter for them to file a notice and a statement of arrears to get things going again.
It seems to me that the onus should continue to be on the director and the staff of the plan to use the new technology that's going to be coming into the plan to be reviewing the files on an ongoing basis -- and how we define "ongoing" I leave to other people -- but who themselves take on the obligation and the responsibility to be reviewing suspended files. If you close that down, in all likelihood what will happen, even under a system run by the government, will be that those files are not touched again, not looked at again. There would be no information sought from MTO, for example, with respect to driver's licences; no information sought from a collection agency. Everything is left closed unless and until a recipient takes it upon himself or herself to file some new information, and I think in a lot of cases that's just not going to happen.
Second, let me tell you again why we're concerned. Any number of the government members who spoke in the debate, the minister included, made much of the fact that there were almost $1 billion in arrears owing, and that's why the plan was broken, that it had never worked, that we needed to pass this bill to have all the new enforcement mechanisms to deal with that substantial problem. The parliamentary assistant used that himself on a number of occasions.
The minister, however, made a very specific statement in his debate on second reading which was that according to ministry criteria, some $500 million of arrears is uncollectible. I ask people to think about what that means in relationship to section 7 and why we are so concerned about that section. Why is it that the minister, even with all the new enforcement mechanisms we're going to put into place, would still consider that half a billion dollars in arrears are unenforceable?
To us, in looking at that, we can only assume that the way we're going to get rid of those arrears and not have them showing on some books somewhere is to deem the director to have the responsibility to close a file; if not a director within the plan under a public system, then certainly the president or CEO of whatever organization the government will have privatized this to two to three years from now.
Surely it's not in anyone's interest to have those arrears in a position where they do not show, and that is what happens when you allow someone the discretion to close a file. You allow either the government of the day or a private agency to make themselves look a whole lot better because all these numerous files have been closed and the arrears attached to them don't show any more. So who's accountable? Whom are we serving if we do that? It's not in our interest, it's not in the interest of the recipients to make the plan look better, either under public or private hands, because we merely close the file and we shut down all of the arrears attached to that.
That is what I am fearful about in section 7. That's why I think section 7 is here, to allow us the opportunity to do that. If I hadn't heard the minister say he believed that many millions of dollars in arrears were not enforceable, I wouldn't worry, but I heard him say that. The amount is very significant, and the only way you can get to that amount and write that down is to close any number of thousands of files and all the arrears attached to them.
I say to the government, the way we continue to keep the plan accountable for all the public is to be sure that, yes, we allow some files to be suspended under very specific criteria, because we recognize as well as you that there are files that it would be silly to have staff try to enforce because it's just not the time or the place to enforce. But surely we don't want to find ourselves in the position where people are closing files merely to bring down the amount of arrears owing in order to make the plan look a whole lot better and for people to be able to say: "Look at how wonderful all our enforcement tools are, look at how well they've worked. Arrears went from $1 billion in 1997 to $500 million or $400 million in 1999."
I don't think that's where we want to be, but if you keep section 7 the way it is, where you allow the director to close those files and the arrears not to show somewhere, that's what you get yourself into.
The Chair: We have Mr Klees, Ms Boyd, Mr Johnson, Mr Tilson.
Mr Tilson: Mr Chair, there are six minutes left till the vote. I think it may be appropriate for us to go to the House.
The Chair: No. We agreed upon five minutes, so we have -- come on, I'd like to hear from you, Mr Klees.
Mr Klees: What I have to say can't be said in one minute and I won't fall for that.
The Chair: How about you, Mr Johnson?
Mr Ron Johnson: I'm willing to wait.
The Chair: Okay, we'll adjourn until five minutes after the vote.
The committee recessed from 1810 to 1824.
The Chair: If we may resume, we have Mr Klees, Ms Boyd, Mr Johnson and Mr Tilson.
Mr Klees: I'd like to follow up on this issue of tracking the arrears. I think it would be unfortunate that a bill with as positive a message as this one be characterized as sinister because of this issue of not tracking the arrears. I don't believe for one minute that it's the intention of the government to use this section simply to make things look better than they are. I don't believe that, but I think the very fact that so much time is being spent around this table making that suggestion should give us some pause and perhaps help us to think creatively about how we can avoid something so positive being turned into a negative.
I'd like to ask staff if there isn't the available technology, which doesn't sound to me too farfetched, so that when a case is administratively closed the electronic record of that case be programmed to continue to accumulate; if it's a monthly support payment that's at issue, that the electronic record wouldn't be able to continue to accumulate those arrears; if it's a lump sum outstanding where there's an assessed interest, that the electronic record can't continue to accumulate those interest payments.
It seems to me that this is not farfetched and is certainly within the realm of possibility and wouldn't require any physical attention to the file at all. Perhaps that's even contemplated. If it is, it would be important for this committee to know that and to dispel the concerns that are being voiced around the table that perhaps this section 7 would be used to do something that it's not intended to do. Could we get some clarification on that?
Mr Tilson: My understanding is that if you did as you were suggesting -- I'm just trying to raise a possibility -- a recipient could conceivably receive some sort of funding without telling the plan -- this is after a file has been closed -- so that the calculations would not be accurate. When the calculations are going to become accurate is when a notice has been filed, when the recipient has filed a statement, a declaration indicating what the arrears are. At that time, if there's a dispute, there would be a dispute mechanism. But to follow along and keep it electronically alive may not be accurate, because as I say, funds could conceivably be received by a recipient and the plan would not be informed of that payment.
The Chair: Mr Klees, does that conclude your question?
Mr Klees: I certainly have an answer. I would like to think, however, that if the recipient was originally a member of this plan because there was a difficulty in collecting and saw this plan as a vehicle to ultimately recover whatever those arrears were, we could count on the recipient to be responsible to the degree of reporting when any payments were received, and the adjustments could then be made. To make the assumption that all recipients would be irresponsible and wouldn't report goes against the grain of what it is that we're trying to do in terms of preserving the credibility of this plan. If on occasion those payments aren't reported, the adjustment can just as easily be made when the file is reopened, rather than have the error, if you will, against the plan or acting against the recipient. That's my concern.
Again, as a member of this government I have to say that the reason I'm voicing this concern is that I think it can be solved administratively. I think it can be solved just in terms of how we're setting this plan up. As a member of this government, I'm concerned that we're allowing an administrative matter here to cloud what we're trying to do with this bill.
The Chair: Ms Boyd, Mr Johnson and Mr Tilson.
1830
Mrs Boyd: I thought Mr Johnson was before me, actually.
The Chair: No.
Mrs Boyd: I would echo what Mr Klees has said, that in fact it does call into question the credibility of the situation when you say, as you do, in a very facile way, that anybody can always reactivate this by putting in a request and a statement of arrears. Basically, that is the point at which the two things would be looked at, because if the person were reactivating and giving their sense of what the arrears are, that would have to include any payments that have been made or else they'd be subject to the false reporting penalties within the act. So I think your suggestion is correct.
The real issue here is, there is no way for the people of Ontario to know the extent to which people are not fulfilling their obligations if those calculations aren't made and reported, because simply withdrawing the order doesn't mean the order hasn't been made, doesn't mean those moneys aren't still owing, doesn't mean the arrears aren't still accumulating; it just means, for the convenience of whoever is administering the plan, they've decided not to report that. That seriously undermines the credibility of what the government is attempting to do in the rest of the act.
Mr Ron Johnson: I have, as well, a number of concerns over this part of the act, and I happen to agree with a number of things Mr Klees had said. When it comes to closing a file, at the end of the day it's still going to be largely a subjective decision. The concern I have is this: In the legislation, I question, first of all, ultimately, the determination of what is reasonable and practical made by an individual who very well may differ in their opinion from mine or anyone else's around this table.
The other concern is -- I'm curious, and I'm looking for an answer here if you can help me -- when you look at the steps that would have to be taken before a file is closed, have you given any thought as to -- I know it will vary, depending on the cases -- the length of the process, in terms of time, that may take? Are we dealing with a six-month process, a two-year process? Maybe you can help me out with understanding the process that would be involved in deeming something impractical.
Mr Goodman: It depends on the nature of why it's impractical. If it's because the order itself is unclear and ambiguous, as in part of the sections, then you wouldn't have the same steps to go through. But the existing policies and procedures do set up steps to be followed before you would do it. If it's because of no collection coming on the case, you would have to make sure that you've taken all steps to enforce that are available, that you've looked in all the trace-and-locate data banks that we have at this point in time. I would anticipate that those criteria would continue to be applied, either through the internal policies or under subsection 7(2), where the Attorney General can establish guidelines as well.
Mr Ron Johnson: I'll tell you what some of my concerns are. If we look at what this does, really, in essence it shifts responsibility from the plan to the recipient, in terms of reactivating a file or really getting anything done once the decision has been made to close a file.
I believe, even in a jurisdiction as large as Ontario, people catch on pretty quickly. If we look at the recipients who came and made presentations here, we see very clearly that many of them come from affluent families; ex-husbands who have been, literally, dodging the system for a very long time. If in fact payors learn -- and I believe they will; I think they'll learn very quickly -- that if you dodge the system for a couple of years, you're off the hook, this is my concern. I don't see any built-in mechanism in the system that would follow anything up and reactivate the file on behalf of the recipient; so if you could help me with that.
Mr Tilson: I think it's appropriate to comment that there are some amendments in the package of the government, in response to Mr Johnson's question. With respect to clause 7(1)(d), there's a motion somewhere in the package to delete that.
Mrs Boyd: We're all agreed on that one.
Mr Tilson: Well, I'm trying to answer his question, and I believe it does answer his question, where "arrears of long standing are owed under the order." I hope that it would be unanimous. It would be something, after all the talk that's been going on, if it wouldn't be unanimous.
The other amendment is clause 7(1)(f), where the words "of the payor" are being taken out. I believe those amendments will go a long way to answering your concerns.
Mr Ron Johnson: I think it goes partway, but we've still got what I think, in my opinion anyway, is the shift in responsibility to the recipient. Let me give an example of something that I would actually find repugnant in a way. In the legislation you're talking about somebody being sentenced to five years in prison, for example. I've got to tell you, if you're going to get five years, you're not a good guy; you've done something bad. What we've said basically is this --
Mr Guzzo: The courts never made a mistake.
Mr Ron Johnson: What we've said basically is this: If in fact a payor has been sentenced to five years in prison, we've said very clearly that case would be closed. What we've done then is take the recipient, who in all likelihood doesn't want a darned thing to do with this guy ever again, and we've said clearly that it's her responsibility to do two things: (1) follow his career through the prison system and find out when he gets out; and (2) track him down, find him, and once you've got the guy, go then and have the file reactivated. I just think it sets recipients in a very awkward situation. I don't expect a response, because I know that's what's in the legislation, but I just think it really puts some recipients in some cases in a very awkward position.
Mr Tilson: All she's got to do is refile and the system will find him.
Mr Ron Johnson: She's got to find him first.
Mr Tilson: In the hypothetical --
Ms Martel: She's got to find him first.
Mr Tilson: But just a minute; I'm trying to correct something that Mr Johnson said.
The Chair: Mr Tilson, you're next, so go right ahead.
Mr Tilson: Sure, if that's the case. The question that was asked specifically, if someone is in jail, incarcerated for a period of time, all the person has to do is to file, to refile, and the system will find him. That's how it works. It's as simple as that.
You also need to refer to subsection 7(2). You indicated that the decisions to do these things are subjective. No, they're not subjective. The subsection is quite clear that "The Attorney General may establish policies and procedures respecting subsection (1) and the director shall consider them in exercising his or her discretion under that subsection." So it's not subjective. You just can't go and wing it; it's going to be quite clear on guidelines as to how you do these things.
I think the other thing you need to realize with respect to all of these issues is that not only is there a motion to take out clause 7(1)(d), which makes it quite clear that arrears of long-standing are owed under the order, and to amend clause 7(1)(f), but you also have to look at all of the enforcement procedures that are under the bill.
Ms Martel talked about the arrears that are outstanding. Yes, the arrears are outstanding currently under the existing system, there's no question about that, but we believe with all of these new enforcement procedures -- and you all know what they are. Just the simple fact of section 54, for example, which provides better methods to trace and locate defaulting parents. That's not there now. We're going to have all these other sections: the licence removal, the reporting case to credit bureaus. I'm not going to run down them all, because you know what they all are. But those sections, we believe, that don't exist now will alleviate these substantial arrears that have been outstanding for some considerable period of time, so that we will be able to find more information from the enforcement section than we've ever had before. With these new tools of the enforcement section, the various enforcement sections, these arrears will be cut back substantially.
Just to summarize, because of the guidelines that the Attorney General is going to put forward to the director, which shall be followed under subsection 7(2), they are not subjective. The very fact that these substantial arrears that simply cannot be enforced --
Mrs Boyd: It doesn't say "shall."
Mr Tilson: "And the director shall consider them in exercising his or her discretion under that subsection." That's the word "shall." That's what it says.
Where was I? With respect to the enforcement provisions, Mr Johnson, I believe that those enforcement provisions will provide more information. Finally, getting back to your original point, all the recipient has to do is file. The recipient doesn't have to go out and seek this information out. All they've got to do is file. We've gone through how simple that procedure is.
1840
Mr Ron Johnson: This is a great bill. I love this bill. The problem is that there are parts of it which I have concerns with; this is one of them. I'm not disputing at all the enforcement measures. I think that's what makes this bill so strong. The concern, though, that I have is that as much as you're right that she could simply file -- I say "she" meaning in most cases -- as a recipient --
Mr Tilson: Except you're suggesting she's got to go out and find these people, and we're saying that's not the case. That is not the case under this bill.
Ms Martel: She can't just file.
Mr Ron Johnson: In order for the recipient --
The Chair: Mr Johnson, Mr Tilson has the floor.
Mr Tilson: Mr Johnson, I have no problem continuing on. I simply say, I again repeat, we're not telling the recipients, "You go out and find this information." The bill doesn't say that. We're saying: "Tell us to revive it. You revive it. We'll go out and find these people."
Mr Ron Johnson: But the point I'm making, though, is that the recipient is not going to do that unless the recipient has further information that would lead to the re-opening of the file. The information isn't going to land on the recipient's lap. The recipient has got to go after it. It's the only way it's ever going to get reopened.
I completely agree with the bill and the reason behind the bill. I just hate to see us do something that in effect will cause files to be closed and put more responsibility on the recipients than they already have. In fact, I think the kind of responsibility that they would have to take on as a result of this particular section is the kind of responsibility they don't need or they don't want, because they don't want to go tracking down these guys, and that's exactly what they would have to do.
Mr Tilson: Mr Johnson, taking the example you have raised of someone being incarcerated, obviously if someone is no longer incarcerated, surely that information can be revealed to the system. If you don't know where he is, the plan will find out where this person is.
Mr Ron Johnson: That's a good question I would have, then. If somebody is incarcerated for five years or longer, is there going to be a trigger mechanism in place that would allow your ministry to know when that person has been released and then reactivate the file? I would argue that's not there. At least, I don't see it.
The Chair: Thank you, Mr Johnson, Mr Tilson. This isn't a caucus meeting, this is a committee, and we'll follow it in order. Mrs Boyd and Ms Martel.
Mrs Boyd: I share exactly what Mr Johnson --
Mr Ron Johnson: Don't say that; that scares me.
Mrs Boyd: If he will look at page 14 of our amendments, in fact that's what we are talking about, having those automatic triggers in, because we think that's important too. We basically think we shouldn't leave it up to "The Attorney General may establish policies and procedures." We're saying it should be in this act that in fact this office has to ensure that all of the enforcement measures, the trace-and-locate measures that are in this act, have to apply before there's any suspension of enforcement and that because of the vision that's there, clearly, in the ministry around the files that are accessed, talking to each other, exactly that trigger mechanism ought to come into place.
Frankly, folks, I think we're all being very naïve if we make an assumption that because somebody has been jailed for five years they don't have any assets. It's ridiculous that they don't have any assets that could be attached. Yet this is saying you can withdraw from enforcing a support order because somebody's been convicted and sentenced to five years in jail. It doesn't say that all of these mechanisms have to come to bear on this file first.
What we're saying on our page 14 amendments is that in each case when you do this all of the mechanisms have to have been applied and then there needs to be a periodic review of those suspended files compared against those trace-and-locate measures to see whether it should be automatically reactivated or not. That's exactly what we're asking for, because we think it is extremely important that the recipient not be the one responsible for triggering this in every case, that we have some responsibility as a public service to do this, given the kind of problems that we see in these cases.
Ms Martel: Two short points, if I might. I can only say to the parliamentary assistant these two things. If we've got all of these wonderful new enforcement mechanisms, then why do we need a section 7 at all? Why are you putting into the legislation an area that is causing great controversy not only among committee members but frankly among a number of people who came to this committee, who told us very clearly: "We don't want anything to do with the payor. If I ever see him again, it will be too soon" -- him or her again.
The fact is that it's not just a simple matter of the recipient sending in a notice saying, "I want my file reopened." If the director has closed the file based on any of these criteria and no new information comes to the plan or no new information is submitted by the recipient, how likely does anyone here think it's going to be that the director is going to reopen that file? Forget it. The director is only going to reopen the file if and when some new, important, pertinent information comes into the plan that someone can take some enforcement action on.
That means, by and large -- because I don't see any other mechanism in here for computers to talk to each other and for there to be a trigger annually or semiannually for the file to be reviewed -- the recipient himself or herself has to take it upon himself or herself to deliver the new, important information that would allow the director to use his or her discretion to reopen again. It's not a simple matter of sending in a letter saying, "Please reopen my file." If it was, the file wouldn't be closed in the first place.
What I'm saying is, we really do need to not give the director that kind of discretion to close the file, because the arrears situation is going to be lost, and we are not going to know what is owing in a public way, and we should know that if we care at all about trying to change public perception and making sure that people start to pay.
Secondly, we have to find the ways and means that the various mechanisms that we agree with and that we even have in our own amendments still do allow for the plan and the staff in the plan to trigger a review of the file to see if new information has come from any source, be it MTO, credit agencies, third-party interests, you name it, or the recipient, and that will allow someone to have enforcement action taken on their file again.
It's not a simple matter. Right now what we are doing -- I agree with Mr Johnson -- is putting the majority of the onus on the recipient to do all of this work when in fact that recipient may not want to have anything to do with the payor.
Mr Ramsay: In light of the last remarks by Ms Martel, who said right at the beginning of her remarks, "Then why do we need a section 7?" I'd just like to ask the committee to reconsider the motion I placed just previous to this one, that if -- and I buy into it, that these enforcement mechanisms are a lot better than we have previously seen, and I have some faith in these. So, if they are that good and we believe they are that good and they're going to perform well on behalf of the clients, then why do we need these options of opting out of enforcement? Again, I make the plea that we get rid of section 7.
Mr Tilson: The members are saying get rid of section 7, and to do that, I assume that what you're saying is go back to what we're doing now. There are administrative closures that are going on now without any communication whatsoever with the Attorney General's office, without any sort of guidelines. There are absolutely no guidelines with respect to these closures.
We believe that there should be guidelines, because what is going on now creates false expectations with respect to the collection of these accounts. Let's be realistic. Some of these accounts for periods of time may be completely uncollectible.
Just to correct something that Mrs Boyd said with respect to serving time, being incarcerated, clause 7(1)(g) refers to where a file can be closed if, in the opinion of the director, "The payor is in prison serving a sentence of five years or longer and has no assets or income available to satisfy the support order and any arrears under the order." It's quite specific; it's quite detailed. You can't just be incarcerated; you can't have anything.
1850
These files that are being closed are quite specific. There is no way of collecting anything, and to carry on with these files and give these people this false sense of expectation is cruel. We believe, to be realistic, that the codified system that is being suggested under section 7, as being proposed in an amendment in a subsequent motion is appropriate. I would request that the committee defeat the current motion put forward by the NDP.
Mr Guzzo: I wanted to mention the practice of what happens at the present time, and the parliamentary assistant has dealt with it. I don't know what the significance is of the wording here, "close and suspend," because it seems to me that the communications that I have seen from the plan would indicate that files were closed for specific reasons in the past. I guess my question to the staff or the parliamentary assistant is, if under 7(1), (2), (3) or whatever a decision of the director is taken not to enforce, how do I as a recipient challenge that?
Mr Tilson: Mr Goodman will answer that question.
Mr Goodman: As I understand it, the Attorney General is considering establishing a guideline to deal with some sort of review of decisions made by the director.
Mr Guzzo: That doesn't answer my question. I'm not really interested in what the Attorney General is considering. As it stands now under the existing act -- and some decisions are being taken at the present time even though it's not codified -- if I wanted to challenge a decision of the director today before we pass this act, how do I go about doing it? Judicial review?
Mr Goodman: We've never had a judicial review. Generally, the review of the director's exercise of discretion has been done by the Ombudsman's office.
Mr Guzzo: Is it your intention that that's what the preferred option would be once this act is passed, that if someone wants to challenge a decision of the director, now that it's codified, you would go to the Ombudsman or make an application for judicial review?
Mr Goodman: An individual has the right to go to the Ombudsman at any time when a government agency has made a decision. It's their right to go and have that reviewed. The Ombudsman would then review those decisions that are being made.
Mr Guzzo: I know that, but the point I'm trying to make is this: It's not really all that efficient and it's not really all that effective. Judicial review is slow and expensive. But that is what is contemplated here, save and except that you're telling me that the Attorney General is thinking of dealing with it by regulation.
Mr Tilson: Just further to the answer that's being provided, there's no question that subsection (2) talks about the policies and procedures respecting all of that. That's part of the policies and procedures that the Attorney General may consider. I might add that there's no procedure now. This is better than what we have now. There's nothing now.
Mr Guzzo: That's not true. Think of what you're saying. Of course there's a procedure now.
Mr Tilson: No. If there's an administrative closure of a file, how are you going to reopen it now?
Mr Guzzo: Judicial review, and that's what I'm going to be looking --
Mr Tilson: Then what's new?
Mr Guzzo: What I'm telling you, and I'm sorry if I have to drive it home, is that this is not really all that acceptable if we're trying to help people. If you're trying to be cumbersome and you're trying to make it as expensive and as difficult as possible, leave it exactly the way it is. Thank you.
Mr Tilson: We believe that the policies and guidelines of the Attorney General as set forth in subsection 7(2) will answer that question.
Mrs Boyd: I'd like to call the question. A recorded vote, please.
The Vice-Chair (Mr Ron Johnson): All those in favour of the amendment?
Ayes
Boyd, Martel, Ramsay.
The Vice-Chair: Opposed?
NAYS
Doyle, Hudak, Klees, Parker, Tilson.
The Vice-Chair: The amendment is lost.
We move now to amendment 10.
Mrs Boyd: I move that clause 7(1)(a) of the bill be struck out and the following substituted:
"(a) the amount of the support is less than $10 per month."
The rationale is that it is not appropriate, it seems to me, to leave it up to the director or to the director's assignee as to what is a nominal amount. We had people come in front of us who said they could well envision that the nominal amount might be set at $25, $30 or $50 a month. That may sound nominal to some people, but for the people who are under receipt of support it is substantial. However, I appreciate that for the plan the issue of continuing to try and collect on what some judges have ordered, which is $1 or $2 a month, is not practical. It seems to me that if we have it at $10 a month, that certainly would pay for some of those school trips that some of our delegates told us their kids were not able to have because their money was not coming forward. It is a nominal amount; $10 is not a great deal, but it would cover the costs of collection in the plan.
Mr Tilson: The government doesn't believe that this amendment is necessary. With respect to clause 7(1)(a), the government does agree with the NDP's interpretation of "nominal" and we believe this will be reflected in the Attorney General's policies and guidelines that will guide the plan.
Mrs Boyd: All along the parliamentary assistant is asking us to believe that guidelines we haven't seen, that indeed are not even required to be set by the act -- they may be provided, but they do not have to be, according to the act -- are somehow going to answer these very real concerns. It would be a huge mistake for us to make that assumption.
The Vice-Chair: Seeing no further debate, all those in favour of the amendment?
Mrs Boyd: A recorded vote, Mr Chair.
Ayes
Boyd, Martel, Ramsay.
Nays
Doyle, Guzzo, Hudak, Klees, Parker, Tilson.
The Vice-Chair: The amendment is lost.
Moving to amendment 11.
Mr Tilson: This is the motion I've been referring to.
I move that clause 7(1)(d) of the bill be struck out.
The rationale of this motion is to address the concerns that have been raised. Section 7 provides that the Family Responsibility Office can refuse to enforce a support order and the related support deduction order in cases where enforcement is unreasonable and impractical. Section 7 further states the types of situations which will be considered impractical or unreasonable. Although section 7 is a codification of the existing policies and procedures established by the director of the family support plan, a number of presenters during the public hearings to the committee have raised concerns with the operation and impact of section 7.
As we have indicated, to address those concerns and to make it clear that the director will only cease to enforce when it is clear recovery is not possible, the Attorney General is introducing two motions to amend section 7. The first motion is this one, which deletes that section. As a result, the director will not cease to enforce a case solely on the grounds that there are long-standing arrears. This amendment, with the policies and procedures that the Attorney General will be establishing under subsection 7(2), together with the amendment that will follow on clause (f), will make it abundantly clear that section 7 is not an attempt to remove hard-to-enforce cases from the Family Responsibility Office.
1900
Mrs Boyd: Call the question, Mr Chair.
The Vice-Chair: All those in favour of the amendment? Carried.
Moving to amendment 12.
Mr Ramsay: I withdraw it.
The Vice-Chair: Moving to amendment 13.
Mrs Boyd: I withdraw it.
The Vice-Chair: Amendment 14.
Mrs Boyd: I move that clauses (e), (f), (g), (h) and (i) of subsection 7(1) of the bill be struck out and the following substituted:
"(e) the recipient has deliberately and persistently withheld information in his or her possession which could assist the director to locate the payor or to enforce the order or that relates to the amount of arrears owed under the order;
"(f) the location of the payor or the recipient cannot be determined and the director has employed every measure available under this act to locate the payor;
"(g) the payor is in prison serving a sentence of five years or longer, the director has determined that all enforcement measures available under this act have been exhausted and the payor has no assets or income available to satisfy the support order and any arrears under the order;
"(h) the payor is receiving benefits under the Family Benefits Act or assistance under the General Welfare Assistance Act, the director has determined that all enforcement measures available under this act have been exhausted and the payor has no assets or income available to satisfy the support order and any arrears under the order;
"(i) the recipient repeatedly accepts payment of support directly from the payor without providing the director with receipts of such payments signed by both the payor and the recipient."
The purposes of the clauses are fairly evident. In (e) the issue here is one that really pertains to some of the concerns that the plan has raised over the years, that there are times, whether it's by coercion or not, that a recipient may have hidden information from the plan around the location of a payor, and there are many reasons why that might happen. In those cases it is quite appropriate for the director to suspend the enforcement of the act under those circumstances.
In clause (f) I'm not going to argue it because we probably like better the proposal that the government has for (f).
In (g) it is necessary not to assume that because someone is in prison all of the efforts under this act have been employed. It is not sufficient, it seems to me, that for someone who, for example, may have been in prison for five years at this point and be sentenced to a further 15 years or a further 15 years before eligibility for parole, these measures have not been taken to see whether this person has assets that are available to them. In many cases, especially for long prison terms, we find people mysteriously well to do when they leave prison, particularly in cases of fraud and extortion and some other issues. Some of us can think of recent, celebrated cases where that is the case, where it has been assumed that people don't have any assets but live very high off the hog when they are released from prison. It seems to me that the measures available under the act need to have been brought to bear.
Similarly with the Family Benefits Act and the General Welfare Assistance Act, we've heard a lot of rhetoric from this government about people cheating on welfare. It would seem to me that given the belief that seems to be there that people cheat the Family Benefits Act and the General Welfare Assistance Act, the extraordinarily strong search powers available under this act should be brought to bear on support payors to ensure that they are not also defrauding the Family Benefits Act. The Family Benefits Act and the General Welfare Assistance Act enforcement includes no measures that are similar in any way to the kinds of measures that are available under this act. It seems to me that the measures in this act ought to be brought to bear.
Similarly, it seems to me that where recipients are themselves responsible for confusing the enforcement of this act by accepting payments outside of the act, not through the director, they bear some responsibility for the difficulty that the director has in enforcing the act. If it were clear to recipients that if they accepted those dollars and didn't obtain a receipt signed by both parties that was submitted to the director, it would be appropriate for the director to refuse to take responsibility.
Mr Tilson: With respect to (e), I'll run down some of the comments with respect to what Mrs Boyd has put forward in her resolution.
Mrs Boyd's proposal in clause 7(1)(e) is excessively onerous on the program in that the program can't close a file unless "the recipient has deliberately and persistently," I think are the words, "withheld information." Bill 82 provides that where the recipient has refused reasonable requests for information from the program, the recipient's file could be closed. In short, we believe that the proposal is excessively onerous.
With respect to (f), (g) and (h), the criteria that the director must ensure that all enforcement measures have been exhausted before a file can be closed under (f) to (h): Bill 82 doesn't use this wording because there are cases where all the enforcement measures are not applicable or necessary.
The Attorney General has made commitments to apply new measures under this bill. In other words, all these new measures must be looked at before they can be closed.
With respect to clause 7(1)(h), the NDP is proposing that a recipient should be permitted to accept direct payment from the payor as long as the director is provided with receipts of such payments signed by both the payor and the recipient.
The program has never permitted direct payment because it's too difficult to keep accurate and timely records regarding arrears. The program doesn't want to take active enforcement measures only to find out that the arrears are not owing because the recipient accepted direct payment. If the parties want to make their own payment arrangements, they can opt out of the program.
With respect to (i), which is the final proposal in the resolution --
Mrs Boyd: Given the mess the plan has been in over the last few months, people who were quite happy to let the plan be the collector of moneys have been in a position where I'm sure we will find many parties had direct receipt of funds. I think there are a large number of payors out there who aren't prepared to see their children starve, and I suspect there was a lot of that going on. I would not want to see a recipient have a file closed because of that as long as efforts are made, as they would be in our proposal, to inform the plan of that so you didn't have a problem with arrears, that you had a record that was there from both the payor and the recipient saying, "Yes, over this period of time, because the plan was in chaos, for example, this is what happened." It shouldn't interrupt the payments, and under (i) it would, because "repeatedly" is not defined; it could mean anything from two payments to any number of payments. I think the issue here is making sure the records of the plan are clear.
As the member for Dufferin-Peel is aware, we don't believe that people ought to be able to opt out, but this would enable the plan to control that kind of issue without the opt-out provision.
1910
With respect to the other sections, there is nothing in this bill that requires all these enforcement mechanisms to have been used. We have a verbal assurance from the minister that that's what he intends and we have a section of the bill that enables the Attorney General to set guidelines and principles but does not require him to do so.
Ms Martel: If I can follow up on that point, if it's good enough for the Attorney General to give an undertaking that the measures will be looked at before a file is closed, then I would assume it's good enough to put it into the legislation. That way it's very clear to the public and everyone that these are the conditions under which files will be closed and that files will only be closed when all efforts to enforce that come through this bill are taken.
I don't understand what the problem is in putting what I understand has been a verbal agreement by the Attorney General into the act. I think it's even more important that we do that. When the plan is privatized, I would like to have some assurance that this is going to be the procedure under which whatever new agency takes this on finally operates. Leaving that out of the act, hoping it might get into a policy or a procedure the Attorney General may -- the operative word is "may" -- put into the plan is just not good enough. If he is serious about all these enforcement actions being taken before a file is closed, then let's make sure it's in the legislation, that it's transparent, that everyone sees it and that everyone, including the Attorney General and whatever new organization undertakes this three years from now, has to follow those very same rules.
The Vice-Chair: Further discussion? Seeing none, all those in favour of the amendment? Opposed? The amendment fails.
Moving to amendment 15.
Mr Tilson: This is an amendment I referred to earlier.
I move that clause 7(1)(f) of the bill be amended by striking out "the payor or" in the first line.
Mrs Boyd: Call the question.
Mr Tilson: If she doesn't want the rationale, we'll vote on it, sure.
Mrs Boyd: We've talked about it. You've already given it.
The Vice-Chair: All those in favour? Opposed? Carried.
Number 16.
Mrs Boyd: I move that clause 7(1)(l) of the bill be struck out.
The effect of this would be to take away the very ambiguous provision that enforcement of the order is otherwise unreasonable or impractical, which a number of the members of this committee have expressed concern about. I think it is not appropriate to leave something that ambiguous in this act, given the concerns that have been raised around the refusal to enforce orders.
Mr Tilson: Obviously this section of enforcement of the order is otherwise unreasonable or impractical, and it's being suggested that it be deleted. We don't believe this would be feasible. The director of the plan needs to have the residual authority, in our opinion, to close cases where enforcement has proven to be unreasonable or impractical for reasons not specified in the various sections of section 7.
Mrs Boyd: It is very clear in the business plan of the ministry that one way it might seem impractical or unreasonable to enforce is if the company enforcing it doesn't make enough money. It says very clearly in the business plan that it is going to be important to make the enforcement of orders practical from a profit point of view. That is exactly why we want this taken out; that is not a good reason not to enforce support orders which are for the maintenance and care of children.
Ms Martel: We've already had the discussion about why we agree or disagree that the director should have the right to refuse to enforce the support order, and I won't go through that argument again. But surely, for the government members, this leaves the discretion wide open that anything that's not covered above, some very specific circumstances, if there's any other reason the director of the plan in a public or private system wants to close a file, that is captured under clause (l).
I think we are doing ourselves, and the clients we think we are here to serve through this legislation, a real disservice when we leave in clause (l), which just covers the whole waterfront. If there isn't any other reason that we haven't already captured to close the file, it will be captured under this. In the long run I think we are going to end up ensuring that the collection agency that gets hold of this is going to be able to make a decision not to enforce hundreds and millions of dollars of arrears just by deciding that it's not practical, not reasonable, ie, not profitable, to do that. I think that's a real disservice to the people this legislation is supposed to protect.
The Chair: If there are no further comments I'll put the question. Shall the amendment carry? All those in favour? All those against? The motion is lost.
Item 17.
Mrs Boyd: I move that subsection 7(2) of the act be struck out and the following substituted:
"Policies and procedures
"(2) The Attorney General shall establish policies and procedures respecting subsection (1) and the director shall follow them in exercising his or her discretion under that subsection."
The impact is to ensure that these policies and guidelines actually exist, that they are public and that the director is bound by them in making the decisions that have been agreed to by this committee.
The Chair: Any further comment before I put the question?
Mr Tilson: We believe that the words "shall consider" are sufficient. We don't believe that this amendment is necessary. The Attorney General has indicated, through me and through his own comments, that it's our intention to develop guidelines, and we will.
Mrs Boyd: Just a reminder: This act, as all acts, applies not only to this Attorney General but to all subsequent attorneys general. If an Attorney General is not bound by the act to establish policy and guidelines, an Attorney General may decide not to, and that would not be in the best interests of the people who are served by this area. I do not believe in any way that "director shall consider them" has the same impact as "director shall follow them."
It is not appropriate first to say that you're giving permission to an Attorney General to put these things into place, not requiring an Attorney General to do so, and then pulling your punch and saying the director "shall consider" these rather than "shall follow" them. It should be binding upon a director, particularly with the provision of this act that allows that director to assign his or her responsibility to anybody in the world, to follow policies and procedures that are required to be set down by an Attorney General.
Ms Martel: If it's good enough for the Attorney General to verbally give an undertaking, I just don't understand why it's not good enough to put it in the legislation. I really cannot understand, in some of these sections when we're trying to fix a bill, which we have also supported, why it's not good enough to put it right in the act. It sends out all kinds of signals to people that a lot of efforts the Attorney General talks about wanting to undertake will not be undertaken. I think that's a bad signal to send.
Mr Guzzo: If we're going to do it and it's going to be this Attorney General who does it, what's the problem with agreeing to do it in the legislation? But more important, what is wrong with directing that the director will follow what guidelines we propose as opposed to having a discretion in considering them only, a discretion that, and I go back to my last point, is going to be very cumbersome to impose if we don't provide for same in this legislation? Forget the first part. If he says he's going to do it, he'll do it. But the second part, what's the thinking that would allow the discretion to be left with the director?
1920
Mr Tilson: Mr Guzzo, obviously when you're preparing guidelines, it's exactly what they say they are, they're guidelines; they're to assist the director in making decisions. You can get too stringent, which I believe this amendment does, or you can assist the director, the Attorney General can assist the director in making his or her decisions. That's exactly what the whole purpose of guidelines is, otherwise we'd spell them out in the act. If you spell them out in the act, you're going to end up with all kinds of problems.
The Chair: I have a question. If you use the wording "director shall follow them," does that mean that the director's decisions are then subject to judicial review?
Mr Tilson: You'll have to ask that to the mover of the motion. We're not supporting this amendment. If you look at the wording of what we're suggesting, subsection 7(2) says, "The director shall consider them." The amendment says, "The director shall follow them." You'll have to ask that question to Mrs Boyd. You may be correct.
Mrs Boyd: My interpretation would be that under either circumstance it's always open to judicial review.
The Chair: My experience is somewhat different, that "shall" is much greater than "consider," but in any event.
Mr Tilson: I don't want to get into a debate with the Chairman, but the words that are being used in subsection 7(2) are, "The director shall consider them." The words that are being used in the NDP amendment are, "The director shall follow them." Those are two quite different meanings. In other words, "You've got to do this, this, this and this." If that's the case, why have guidelines at all? Why not codify every specific point? You can't pigeonhole every case. You can't conceive of every case.
That's exactly what guidelines are for, to offer suggestions to the director to make his or her decisions. If you start following the NDP proposals, that might make that decision almost impossible to make in certain situations.
The Chair: If there are no other comments or discussion, I'll put the question. Shall the amendment carry? All those in favour? All those against? The amendment fails.
Item 18, Ms Boyd.
Mrs Boyd: I move that subsection 7(3) of the bill be struck out and that the following be substituted:
"Duties of director upon suspension
"(3) If the director suspends the enforcement of an order under subsection (1), the director shall,
"(a) notify the payor and the recipient; and
"(b) indicate in the appropriate record that the order has been suspended as of the day the payor and the recipient received notice.
"Resuming enforcement
"(3.1) The director shall resume enforcement of a support order or support deduction order upon receipt of relevant information with respect to the location of the payor or to the payor's assets or income.
"Same
"(3.2) If an order is suspended under clause (1)(f)" -- sorry. That piece is withdrawn, Mr Chair, because clause 7(1)(f) has now been withdrawn.
The Chair: Subsection 7(3.2) has been --
Mrs Boyd: Subsection 7(3.2) is withdrawn in consequence of the withdrawal of clause 7(1)(f).
The Chair: Okay. Ms Boyd, what is the intent?
Mrs Boyd: The intent is to talk about this as a suspension of enforcement rather than a withdrawal of enforcement, first of all. It really is just to make it suspended rather than withdrawn.
Mr Tilson: On a point of order, Mr Chairman: Just so I understand what your amendment is, subsection 7(3.2), all we did in clause 7(1)(f) was to delete the words "of the payor." Is it still your intention to delete all of that portion?
Mrs Boyd: Yes, because all we were interested in was the location of the payor in the first place.
Mr Tilson: Thank you.
Mrs Boyd: I can assure you, Mr Tilson, there may be some cases where the recipient can't be found, but in most cases it definitely is the payor who can't be found.
Mr Tilson: I agree.
The Chair: Is there any further discussion in regard to the amendment? If not, I'll put the question. Shall the amendment carry? All those against? The motion is lost.
Mr Ramsay is not present. I would therefore ask that we proceed to item 21, which is Ms Boyd.
Mrs Boyd: I move that subsections 7(4), (5), (6) and (7) of the bill be struck out and the following substituted:
"Cost-of-living clauses
"(4) If a support order or a support deduction order made in Ontario includes a cost-of-living clause, the clause is deemed to require that the cost of living be calculated in accordance with subsection 34(5) of the Family Law Act and the director shall enforce the clause accordingly.
"Same
"(5) If a support order or a support deduction order made outside Ontario includes a cost-of-living clause, the clause is deemed to require that the cost of living be calculated in accordance with subsection 34(5) of the Family Law Act and the director shall enforce the clause accordingly.
"Transition
"(6) If an order contains a cost-of-living clause that is not calculated in accordance with subsection 34(5) of the Family Law Act or, if the order was made outside Ontario, in a manner that the director considers similar, which became effective before this section came into force,
"(a) the director shall, upon this section coming into force, continue to enforce the order and the cost-of-living clause at the same amount at which the director of the family support plan was enforcing them immediately before this section came into force; and
"(b) the director shall make all further adjustments to the cost of living after this section comes into force as if the cost of living were calculated in accordance with subsection 34(5) of the Family Law Act."
The purpose of it is to try to deal with the concerns that were raised by the CBAO in their presentation. It does not entirely accord with what they wanted. Part of their concern was that subsection 34(5) of the Family Law Act does not in fact accord with the way in which cost-of-living formulae within the various orders actually are designed by lawyers.
The reality is that we appreciate the government's concern, but there needs to be a formula that can be easily applied so that the cost of living can be calculated in a non-manual manner, be done in a computerized manner. What I think the force of the bill as it stands will be is that a lot of people who negotiated and got orders that included a cost-of-living clause will no longer get a cost of living, all of a sudden it will be wiped out, and what we will see are many people flocking to the courts for variations in orders because the cost of living is no longer going to be allowed.
I have raised the issue around the varying of orders as a very serious problem for courts administration, a very costly problem for recipients and indeed for payors. I believe that we ought to be doing everything in our power to at least ensure that there is some cost-of-living allowance so that we don't get all of these applications for variance all at once, that in fact if people are satisfied that they're getting some cost of living, we may see fewer of these variations coming forward.
Mr Tilson: I think there's a subsequent government amendment on this same issue. In short, the philosophy in both the NDP amendment, as Mrs Boyd has indicated, and the amendment that will be put forward by resolution of the government is responding to the delegation; I believe it was the Canadian Bar Association, the family law section. The NDP resolution suggests that the provisions be in the bill, whereas the government amendment is suggesting that they be by regulation. In short, that is the distinction between the two amendments.
1930
The NDP want an amendment to subsections 7(4) and (5) to deem all cost-of-living allowances to be calculated in accordance with subsection 34(5) of the Family Law Act. The legislation restricts COLA clauses that will be enforced by the director's office to those that comply with subsection 34(5) of the Family Law Act, as those are the only types of provisions which can be automatically calculated. All other types of clauses result in manual administration and therefore unduly impact on the workload of the director.
These other types of clauses typically contain several variables. Historically, the director has found that it is impossible to obtain the necessary information from the parties to calculate the COLA and that the parties have very different interpretations of what the increase will be.
Deeming all COLA clauses to be calculated in accordance with subsection 34(5) of the Family Law Act would mean that the legislation, in our opinion, would automatically vary up or down amounts of support the parties had agreed to or what had been ordered by the court, and this would be a change from the historic role of the office, which is to enforce but not to vary support orders. It is for that reason the government cannot support this resolution.
The Chair: Is there any further discussion regarding the proposed amendment?
Mrs Boyd: Just the observation that then there are going to be many people who don't get any cost of living even though they negotiated that in their agreements or it was ordered by the court. Also, you will find that in addition to all the pressures that are going to come on the court because of the change in the federal law you get a huge volume of people asking for variations because they will not get the cost of living.
Mr Tilson: I can only respond by asking her, if she hasn't already, to look at the government resolution which is coming up shortly which will add that the regulations can prescribe different types of cost-of-living provisions. I hope that will satisfy her concerns.
Mrs Boyd: It won't. I have looked at it, and it does not satisfy them, because it still says under section 7 in your amendment, "The director shall not make any further adjustments under the cost-of-living clause after this section comes into force." So you have not fixed it.
Mr Guzzo: I'm really at a loss to understand how subsection 7(4) can not be supported. If we're really interested in, first, cutting down the costs, cutting down the administrative costs involved in the operation of the courts, freeing up time of the administrative people and the judiciary, avoiding as many variation applications as possible, knowing that Thibodeau is going to dump an enormous number on the court docket, and second, never mind the administrative costs of it, just trying to assist the people, the clients of the courts, how could we not support this? Surely it was just an oversight on the part of the drafters.
Mr Tilson: With respect to this amendment, surely, Mr Guzzo, as you know, if this amendment were supported, we would be supporting the variation of a court order, which I don't think we have the jurisdiction to do.
Mr Guzzo: I don't agree that you would be supporting a variation of a court order any more than when you take a foreign garnishment and bring it into your court, it's expressed in a foreign currency and the judge assesses the exchange rate between the country of the original order and the Canadian rate at that time as opposed to the time the original order was made, that such an action is adjusting a court order. I don't agree that it is and I can show you jurisprudence that agrees with me, and I'm sure you could find jurisprudence that agrees with you.
Mr Tilson: It appears we've agreed to disagree. I can't add any more.
Mr Guzzo: Everything we've talked about in terms of streamlining, reducing costs, leads me to believe that (4) should be supported in this particular amendment. Quite apart from that, even if it didn't, there's a strong argument to be made in terms of assisting people who are before the court or assisting them in staying away, in not having to be before the court and spending additional time and resources.
Mr Tilson: I'm only going to repeat what I've said, and obviously we disagree. It's as simple as that. With respect to these COLA clauses, I believe that you are varying a court order where you don't believe that. You're comparing it to orders from other jurisdictions, and I simply disagree with your interpretation, with due respect.
Mr Guzzo: What would your interpretation be with regard to -- well, I don't want to get into that. Let's not hack it to death.
Ms Martel: If I might ask the parliamentary assistant the following question: You say in your amendment, which comes next, that there will be the possibility, through regulation, to make changes which can then go into effect. My concern is with 7(b), which says, "The director shall not make any further adjustments under the cost-of-living clause after this section comes into force." Can you tell me how we're going to make some changes by regulation with 7(b) in place? What am I missing?
Mrs Boyd: Mr Chair, I wonder if we could move on.
The Chair: The question's been asked. Are we asking that the amendment be stood down?
Mr Tilson: May I suggest we stand this down? We'll try and answer that question.
The Chair: Okay. We're standing down both item 21 and item 22. We will now deal with item 19.
Mr Ramsay: Even though I feel strongly about it, I withdraw this amendment because I've been informed by legislative counsel that it involves an incursion of funds, because I'm talking about a certificate for legal aid. I believe it's out of order and withdraw it.
The Chair: Okay. We will then move on to section 8.
Mrs Boyd: I move that subsection 8(2) of the bill be struck out and that the following be substituted:
"Same
"(2) The director shall not enforce a support order or a support deduction order against the estate of a payor unless enforcement is necessary to collect arrears owed by the payor to the recipient under the order at the time of the payor's death and the estate has not been dispersed.
"In order to obtain probate of an estate an executor must obtain a certificate from the director of the family support program stating that no arrears are owed by the deceased on a support order or on a support deduction order."
1940
I'm worried about whether this form is going to be acceptable, because legislative counsel did not know anything about estate law and so wasn't able to advise us as to the appropriate areas of estate law this should amend, so I'm concerned about it. But we heard from many deputants that they did not believe that simply saying somebody died should end the order or that there was any remedy in saying, under the Succession Law Reform Act, that they could go back to court, because that again involves a lot of process and cost to the person who is doing it.
It's our belief that the problem the family support plan identified, of trying to collect on an estate after it's dispersed, is a legitimate and worrisome concern. They cannot very well collect if an estate is dispersed. But given the other provisions of this act, the registrar general's access to death certificates ought to be triggering for the plan the death of a payor, and at that point it ought to be possible for the director of the support plan to indicate that a support order has first claim on an estate and that the estate ought not to be probated according to a will if that outstanding thing is there. We all see every day the ads in the paper advertising for any claimants to somebody's estate when they die.
It seems to me that, given the high degree of automation that's anticipated by this bill, the government ought to have the registrar general's computer speak to the family support computer so that when a death of a payor occurs there's an automatic flag that rises and there's an automatic withholding of the dispersal of an estate until outstanding debts are paid.
Mr Tilson: As we know, subsection 8(2) of the bill provides that the program will no longer enforce a support order or a support deduction order against the estate of a deceased payor. Under this amendment the director should be required to enforce a support order against the estate of a deceased payor. Estate law should be amended so that every executor of an estate should have to obtain a statement from the director that the deceased has no outstanding support obligation before the probate is granted, and the director should not enforce against the estate after the lawful dispersal of the estate or where the estate was dispersed prior to this act coming into force.
To my understanding, the way it's been painted is that a recipient is simply going to be left out in the cold. All he or she has to do is file -- I don't know who is expert in estate law -- a caveat, I seem to recall is the word that's used, and that stops the estate.
The Chair: Are you speaking against this then?
Mr Tilson: I am indeed. In short, the program doesn't have the resources to check whether every deceased person in Ontario owed support obligation. We believe this is an unrealistic and onerous demand to be placed on the program, and that's what we believe the amendment is doing.
The program will no longer enforce against estates because such enforcement has proven in the past to be complex, it's resource-intensive and generally isn't successful. The program currently initiates enforcement action against estates, but only in very limited capacities. I think that in her position as Attorney General she will have found that it was done very rarely. The recipient, as I've indicated, can pursue remedies against the payor's estate and an application for dependants relief under the Succession Law Reform Act.
Mr Ramsay: The parliamentary assistant really made my point when he said it is very resource-intensive to pursue this. That's exactly why three governments now have agreed to a program such as this to marshal, basically, the taxpayer's resources to help recipients who are not getting what is their due, and this is one example where we could provide the resources through the program to go after an estate.
I'll give you an example of one of the witnesses who came before us the last couple of days: the woman whose husband -- I won't mention the name of the club, though I remember it -- owned a nightclub. She said he also owned a leasing company and that he had several cars and several homes. She's got five court orders, unable to get what is her children's due. What if this person dies and the woman does not have the resources? Why shouldn't the program, with this sort of amendment, then kick in the appropriate legal procedures to access the moneys that are her legal entitlement? I support this.
Mrs Boyd: One of the provisions of the act is for the program to be able to access records in other ministries. The registrar general has to register all deaths. The member talks about it being resource-intensive. We all know how a computer search goes. We've all done them in the library.
A computer search of 150,000 entries against the registrar general's registration of deaths over a period of time -- it wouldn't have to be done every day -- is not a huge issue and ought to be just a matter of course, given that we now have the permission for these systems to speak each other. It is not a huge resource-intensive situation, whereas hiring a lawyer and going to the court under the dependants relief act is quite onerous for individuals who do not have the money to retain a lawyer up front.
Mr Tilson: Dealing with Mrs Boyd's comment, again I believe it's a philosophical difference. You can look at it the way you want to, but we say the taxpayer simply doesn't have the resources to check every estate, every deceased person in Ontario to determine whether or not that person owed support obligation. We simply do not have those resources to set up that bureaucracy.
With respect to Mr Ramsay, I remember that woman very clearly. She came to the committee to tell us how the existing system doesn't work. If I also recall her testimony, she made it quite clear she believed that some of the enforcement measures we're putting forward in this bill will help her substantially, and I believe they will too, having listened to some of the examples of allegations of assets that were hidden. We believe that with the enforcement measures we're putting forward, those concerns she had will be alleviated.
Mrs Boyd: It's very obvious that the taxpayer pays when these payors don't pay. It's to the taxpayer's benefit to invest a little bit in seeking this out, rather than have an estate dispersed to a lot of people who have probably sheltered the assets of a non-payor rather than the family to which the payor owes the money. It is a huge cost to the taxpayer that these payors are not paying. For the member to suggest that the kind of investment that's required would be enormous is just ridiculous.
I happen to know, because I was exposed to it often enough, that the Ministry of Consumer and Commercial Relations, every time you ask to have a cross-reference to one of their files, tells you it will cost $1 million to invest, and I'd say it all the time. So the investment of $1 million to collect millions and millions of dollars is not a lot, and the time to do a computer search -- you start it and the computer search just goes. It is not a huge cost to do this, and the saving to the taxpayer could be enormous.
1950
Ms Martel: One final point to you. I have to remind the parliamentary assistant we're not talking about public money that's owing, we're talking about court orders and money that is owing to predominantly women and children right across this province. That's the money we're talking about. That's the money we should be interested in obtaining. To try to tell this committee that there are somehow huge amounts of human resources required for what is essentially a computer check is just ridiculous. It's just ridiculous to suggest that.
To invest a million bucks in computer technology when you're going to be investing money to upgrade computers to talk to MTO computers etc, if that's not worth it to get hundreds of millions of dollars back, then I don't know what is. But I just have to remind you again, we're not talking about taxpayers' money, we're talking about money that's owing to women and children, and we should be doing everything we can to get it to them.
Mr Guzzo: Mr Tilson, let me just zero in on something here. I don't do a lot of estate work but I've handled one recently where I sent a cheque, an outstanding debt, to legal aid. I don't know how legal aid became aware of the death of the individual, but at the time the executor appeared in my office, which was within a short period of the time of death, legal aid had already notified someone in the family of their claim on the estate. So someone in this government or an arm of this government is already doing what we're doing to recapture. I think I can tell you that the same thing takes place when money is owed where there have been assignments to mother's allowance or the general welfare benefit. I think in this government right now we're doing exactly this.
I think what we're doing in this act, if it is a lot of money, we're going to catch it. We're going to catch it because we're going to trigger when that automobile gets sold or whatever else is in the estate. I think that's what we've said and I honestly believe that is what's going to happen. So under it, it's really a dual check where we're going to pick up a lot of the assets anyway. But if it's so expensive, I find it somewhat strange that other branches of this government seem to be doing exactly what this suggests we should do here.
The Chair: I think you'll find, Mr Guzzo, that in an estate, when you do your probate, notices are sent out to various organizations on the list, including the beneficiaries. That's the way it works, rather than a certificate which will just set up a new bureaucracy.
Mr Tilson: I think you've partially answered the question I was going to give to Mr Guzzo. But I will also say with respect to legal aid, legal aid knows all about those things. Why? Because when you make an application for legal aid, you have to tell everything about yourself. You have to tell what you owe and what's coming to you. So they know that.
Mr Guzzo: But you don't tell them when you're going to die.
Mr Tilson: That's the point, Mr Guzzo. I don't believe any government has the resources to check every deceased person's estate in Ontario to determine whether or not that person had support obligations. I don't believe we have the resources to do that. The other examples you're giving are quite different from doing that, that universal application.
Mr Guzzo: Does the registrar general have the resources to do -- I'm not 100% certain of everything he does at the time of the decease of a resident of Ontario, but whatever the registrar general is doing at the present time, one more tick on a computer to check with the Attorney General's arm to see if it's being done is all that's required.
The Chair: We have five minutes left before I put all the questions and there can be no further debate. Mr Johnson and Ms Boyd.
Mr Klees: Mr Chair, I think you've forgotten me.
The Chair: Oh, I'm very sorry, Mr Klees.
Mr Ron Johnson: Just take four minutes, Frank.
Mr Klees: I just want to register my support for the intent of this amendment. I'm not convinced that it would take a legislative provision to accomplish this, but I want to certainly register with the parliamentary assistant my concern that we're shifting the onus here to the recipient to collect what is rightfully the recipient's. We're shifting that onus away from the payor or the payor's estate to the recipient. I have to say that I think that's wrong.
Mr Chairman, you mentioned that typically what takes place in probate is that a notice is sent out to various organizations. I think the intent here is that one of those organizations should be the family support plan. I'm suggesting that should become a matter of course. Surely that doesn't cost the government of Ontario anything. That becomes an obligation of whoever is handling the estate. That becomes a cost to the estate. I think if it can't be done in this legislation, there should certainly be an undertaking that we effect whatever legislation or regulation it might be to place the onus of notification on the probate process.
Mr Ron Johnson: I'll just be very brief. In terms of this whole process here, Frank is quite right: When you look at probate and the shift of the onus, when we are doing this -- and this is just a question. I don't know how difficult it would be to set up. The parliamentary assistant indicated the resources it would take. We are already in the process of doing that with MTO. That's the whole point. I don't know how many drivers there are in Ontario, but we seem very willing and able and ready to go through the searches required for umpteen million drivers in the province. I guess the question then becomes, what extra resources are going to be required to simply do the same thing with the registrar general?
Mr Tilson: The amendment puts the onus on the executor. Is that fair? Mrs Boyd will say yes, but do you say it's fair? I don't think it's fair.
Mr Ron Johnson: Yes, well, I think --
Mr Tilson: That's who the onus is on with this amendment, and that's not fair.
Mr Ron Johnson: One other point too is that in many respects what is being suggested here -- the one indication from Mr Ramsay was about the one witness we had in here, the nightclub owner, that sort of thing. This wouldn't help that person anyway because those assets are already secured under different names. So in that respect I don't know how it would help, to be quite honest.
Mrs Boyd: I would just point out that if we don't change this, subsection 8(2) will completely make this a moot question. Subsection 8(2) makes it impossible for the family support plan to enforce against an estate. What we're doing is, even if we could come up with a solution now, if we pass the bill as it is now, it will be impossible, because it says the family support plan can't enforce once someone's dead. While I think we could have come up with a solution were we not bound by the limits that were set by the government, we aren't going to be able to.
The Chair: I believe the witching hour of 8 o'clock has arrived and the motion states that at 8 pm:
"...those amendments which have not yet been moved shall be deemed to have been moved and the Chair of the committee shall interrupt the proceedings and shall, without further amendment or debate, put every question necessary to dispose of all remaining sections of the bill and any amendments thereto. Any divisions required shall be deferred until all remaining questions have been put and taken in succession with one 20-minute waiting period allowed pursuant to standing order 128(a); and
"That the committee be authorized to continue to meet beyond 6 pm on December 9, 1996, if necessary, until clause-by-clause consideration has been completed."
I would therefore put the question of Ms Boyd's amendment to subsection 8(2). All those in favour?
2000
Mr Tilson: On a point of order, Mr Chairman: Are we going to go back to item 21?
The Chair: Yes, we certainly are, Mr Tilson, but we are dealing with section 8 right now. I will go back to section 7.
All those in favour of the amendment? All those against? The amendment is lost.
Shall section 8 carry? All those in favour? All those against?
Mrs Boyd: Recorded vote.
The Chair: I'm sorry, we best take that over again.
Mr Tilson: Why?
Mrs Boyd: We're having a recorded vote.
Mr Tilson: Yes, after the vote was taken.
Mrs Boyd: No. He asked me --
Mr Tilson: I already voted and you ask for a recorded vote.
Mrs Boyd: He asked for it before.
Mr Guzzo: I asked for it.
The Chair: Mr Guzzo asked for a recorded vote. I missed that, I'm sorry. We shall do it over again. A recorded vote. Shall section 8 carry?
Ayes
Doyle, Hudak, Ron Johnson, Leadston, Tilson.
Nays
Boyd, Guzzo, Martel, Ramsay.
The Chair: We had an abstention, which I do not believe is permitted under the standing orders which apply to this committee also. So I shall again call the question. You are required to vote either aye or nay.
All those in favour of section 8?
Ayes
Doyle, Hudak, Ron Johnson, Leadston, Tilson.
Nays
Boyd, Guzzo, Klees, Martel, Ramsay.
The Chair: I understand my position is that I am to cast an affirmative vote to break the tie so that it can be reported to the House. Section 8 therefore is carried.
We are now returning to Ms Boyd's motion.
Mrs Boyd: On a point of order, Mr Chair: Did I understand you to say that you have no choice but to vote yes because of the rules of the committee?
The Chair: That is the decision I've made.
Mrs Boyd: I understood you to say you had no choice but to vote yes.
The Chair: I assume I always have a choice, but I understand I am to follow the traditions of this place and I have been advised that the traditions of this place would have me vote in the affirmative. But I do have a choice, yes.
Subsections 7(4), (5), (6) and (7), an amendment by Ms Boyd. Shall the amendment carry? All those in favour? All those against? The amendment is lost.
A government amendment to subsections 7(4), (5), (6) and (7). Shall this amendment carry? Against? That amendment is carried.
Shall section 7, as amended, carry? All those in favour? All those against? Carried.
There is only one amendment to section 8, a proposed new section 8.1, which is item 25 in your brief.
Mr Ramsay: I withdraw the amendment.
The Chair: The amendment is withdrawn. Shall section 8 carry? All those in favour? All those against? Carried.
On section 9 we have a third-party amendment, being item 26 of your brief. Shall section 9 be amended? All those in favour? All those against? The amendment is lost.
Shall section 9 carry? All those in favour? All those against? Carried.
Section 10: Shall section 10 carry? All those in favour? All those against? Carried.
We have a government amendment, subsection 11(2), contained in 27 of your brief. Shall that amendment carry? All those in favour? All those against? Carried.
Shall section 11, as amended, carry? All those in favour? All those against? Carried.
There are no amendments, and I would ask, shall sections 12 to 15, inclusive, carry? All those in favour? Any against? Carried.
Section 16: We have an opposition amendment to subsection 16(1), which is contained as item 28 of your brief. Shall the opposition amendment carry? All those in favour? All those against? That amendment is lost.
A second amendment to subsection 16(1), being item 29 of your brief: Shall that amendment carry? All those in favour? All those against? That motion is lost.
We have a third-party amendment to subsections 16(1) to (6), being item 30 of your brief. Shall the amendment carry? All those in favour? All those against? The amendment is lost.
We have an opposition amendment to subsection 16(3.1), being item 32 of your brief. Shall Mr Ramsay's amendment carry? All those for? All those against? The amendment is lost.
We have a government amendment, Mr Tilson's, to subsection 16(5), being item 33 of your brief. Shall that amendment carry? All those for? All those against? Carried.
We have an opposition amendment to section 16, being item 34, which I understand is to be ruled out of order. Mr Ramsay, is that satisfactory?
2010
Mr Ramsay: I guess.
The Chair: Thank you. Shall section 16, as amended, carry? All those in favour?
Mrs Boyd: Recorded vote.
The Chair: A recorded vote is requested.
Ayes
Doyle, Guzzo, Hudak, Ron Johnson, Klees, Leadston, Tilson.
Nays
Boyd, Martel, Ramsay.
The Chair: Section 16 carries.
Section 17: We have a third-party amendment to section 17, being item 35 of your brief. Shall the amendment carry? All those in favour? All those against? The motion is lost.
Shall section 17 carry? All those in favour? All those against? Carried.
Shall sections 18 and 19 carry? All those in favour? All those against? Sections 18 and 19 are carried.
Section 20: We have two amendments. The first is an amendment by the third party to subsection 20(1), being item 36 of your brief. Shall that amendment carry? All those in favour? All those against? The motion is lost.
We have a government amendment to subsection 20(1), being item 37 of your brief. Shall the amendment carry? All those in favour? All those against? The amendment is carried.
Shall section 20, as amended, carry? All those in favour? All those against? Carried.
Section 21: We have one amendment, being item 38, proposed by the third party to subsection 21(1). Shall the amendment carry? All those in favour? All those against? The amendment is lost.
Shall section 21 carry? All those in favour? All those against? Carried.
Section 22: We have a third-party amendment to subsection 22(3), being item 39 of your brief.
Mrs Boyd: This is withdrawn, Mr Chair; it's a consequent amendment.
The Chair: Thank you. Shall section 22 carry? All those in favour? All those against? Carried.
Section 23: We have a third-party amendment to subsection 23(6), being item 40 of your brief. Shall the third-party amendment carry? All those in favour? All those against? The amendment is lost.
Shall section 23 carry? All those in favour? All those against? Carried.
Shall sections 24 to 27, inclusive, carry? All those in favour? All those against? They are carried.
Section 28: We have a government amendment to subsection 28(9), being item 41 of your brief. Shall the government amendment carry? All those in favour? All those against? The amendment is carried.
Mr Klees: Can we get a recorded vote on that?
The Chair: It's a little late.
Mr Ron Johnson: You're fired.
The Chair: Yes, it's too late for that. The members of the committee can confuse me. This is a new experience for me, and not a particularly good one, so if I do make a mistake in the procedure, please correct me. Do not hesitate.
Mrs Boyd: Rest assured, Mr Chair, that we do support the enforcement measurements, so you're not going to be in any difficulty.
The Chair: Shall section 28, as amended, carry? All those in favour? All those against? It is carried.
Shall sections 29 to 34 carry? All those in favour? Against? They are carried.
Section 35: We have three government amendments. First is an amendment to subsection 35(1.1), being item 42 of your brief. Shall the government amendment carry? All those in favour? All those against? The amendment is carried.
The second amendment is to 35(2.1), being item 43 of your brief. Shall that amendment carry? All those in favour? All those against? The amendment is carried.
The third and last is to subsection 35(8.1), being item 44 of your brief. Shall that amendment carry? For? Against? That amendment is carried.
Shall section 35, as amended, carry? All those in favour? Against? It is carried.
Shall sections 36 and 37 carry? All those in favour? Carried.
Section 38: We have three amendments. The first is an amendment by the third party to clause 38(1)(e), being item 45.
Mrs Boyd: It's withdrawn, Mr Chair.
The Chair: That motion is withdrawn.
We have two government amendments: first, to subsection 38(2), being item 46 of your amendments. Shall the government amendment carry? All those in favour? Carried.
Second, a government amendment, subsection 38(3), being item 47. Shall that amendment carry? Carried.
Shall section 38, as amended, carry? All those in favour? Carried.
Shall sections 39 to 42 carry? All those in favour? Against? Carried.
We are now at section 43 and we have three government amendments. The first is to subsection 43(1), being item 48. Shall that amendment carry? All those in favour? Against? Carried.
We have a government amendment to subsection 43(4), being item 49 of your brief. Shall the government amendment carry? All those in favour? Carried.
Last is subsection 43(6), being item 50 of your brief. Shall the government amendment carry? All those in favour? All those against? Carried.
Shall section 43, as amended, carry? All those in favour? Against? Carried.
Shall sections 44 and 45 carry? All those in favour? All those against? Carried.
Section 46: We have a third-party amendment to subsection 46(1), being item 51 of your brief. Shall the amendment carry? All those in favour? All those against? The motion is defeated.
Shall section 46 carry? All those in favour? All those against? Carried.
Section 47: We have two government amendments. The first is to clause 47(1)(e), being item 52 of your brief. Shall the government amendment carry? All those in favour? All those against? Carried.
2020
A government amendment to subsection 47(2), being item 53 of your brief. Shall the government motion carry? All those in favour? Carried.
Shall section 47, as amended, carry? All those in favour? Against? Carried.
Shall sections 48 and 49 carry? All those in favour? All those against?
Interjection.
The Chair: I'm sorry? We're dealing with sections 48 and 49.
Interjection.
The Chair: That's a new section, I believe. Were there any votes against section 48 or section 49? If not, they're carried.
We are now dealing with a new section, section 49.1, moved by the opposition, being item 54 of your brief. Shall the Liberal amendment carry? Against? Mr Leadston's not voting with us here.
Interjection: He's reading it.
Mr John L. Parker (York East): He gave me his proxy.
The Chair: No, sorry. We're voting against the Liberal motion. Could I see everyone's hands, please. There's no abstaining here.
Mr Ed Doyle (Wentworth East): We're voting against?
The Chair: Yes, we're against it. Thank you.
Mr Tilson: You're doing a nice job, Mr Chairman.
The Chair: It's a lot of fun.
Mrs Boyd: We thought you were the Chair, not the whip.
The Chair: I'm sorry, Mrs Boyd, I do believe that everyone is supposed to vote, and that's all I was trying to ensure.
Section 50: We have a government amendment to subsection 50(2), being item 55 of your brief. Shall the government amendment carry? All those in favour? All those against? Carried.
Shall section 50, as amended, carry? All those in favour? All those against? Carried.
Shall sections 51, 52 and 53 carry? All those in favour? All those against? Carried.
Section 54: We have four amendments. The first amendment is to clause 54(1)(b), an amendment by the third party, being item 56 of your brief. Shall the third-party amendment carry? All those in favour? All those against? Lost.
We have a government amendment to clause 54(1)(b), being item 57 of your brief. Shall the government amendment carry? All those in favour? All those against? Carried.
We have a government amendment to clause 54(1)(c), being item 58 of your brief. Shall the government amendment carry? All those in favour? All those against? Carried.
We have a third-party amendment to subsection 54(1.1), being item 59 of your brief. Shall the third-party amendment carry? All those in favour? All those against? Lost.
We have a government amendment to subsections 54(1.1), (1.2) and (1.3), being item 60 of your brief. Shall the government motion carry? All those in favour? All those against? Carried.
Shall section 54, as amended, carry? All those in favour? All those against? Carried.
Shall sections 55 and 56 carry? All those in favour? All those against? Carried.
Section 57: We have one government amendment to section 57, being item 61 of your brief. Shall the government amendment carry? All those in favour? All those against? Carried.
Shall section 57, as amended, carry? All those in favour? All those against? Carried.
Shall sections 58 to 61, inclusive, carry? All those in favour? All those against? Carried.
New section, section 61.1, proposed by the opposition, being item 62. Shall the opposition amendment carry? All those in favour? All those against? The opposition amendment is lost.
Shall section 62 carry? All those in favour? All those against? Carried.
Section 62.1 is a new section proposed by the third party, being item 63. Sorry, Mr Tilson?
Mr Tilson: No, it's under control, I think.
The Chair: We are dealing with item 63 of your brief, which is a third-party amendment to propose a new section, section 62.1. Shall the third-party amendment carry? All those in favour? All those against? The amendment is lost.
Section 63: There are a number of amendments. We have a government amendment to clause 63(b.1), being item 64 of your brief. Shall the government amendment carry? All those in favour? All those against? The motion is carried.
We have a government amendment to clause 63(c), being item 65 of your brief. Shall the government amendment carry? All those in favour? All those against? It is carried.
Government amendment to clause 63(e): Shall the amendment carry? All those in favour? All those against? Carried.
Government amendment to clause 63(h.1): Shall the amendment carry? All those in favour? All those against? Carried.
Government amendment to clause 63(i.1): Shall the amendment carry? All those in favour?
Mrs Boyd: Recorded vote, Mr Chair.
The Chair: Recorded vote on clause 63(i.1).
Ayes
Doyle, Guzzo, Hudak, Ron Johnson, Leadston, Parker, Tilson.
Nays
Boyd, Martel, Ramsay.
Mr Klees: I haven't read the amendment yet. Just give me one second.
2030
The Chair: We'll have to start at the beginning. All those in favour of the government amendment to clause 63(i.1)?
Ayes
Doyle, Guzzo, Hudak, Ron Johnson, Klees, Leadston, Parker, Tilson.
The Chair: All those against?
Nays
Boyd, Martel, Ramsay.
The Chair: The next amendment is a government amendment to clause 63(k.1), being item 69 of your brief. All those in favour of the amendment? All those against? Carried.
Government amendment to clause 63(k.2), being item 70 of your brief: All those in favour of the amendment? All those against? Carried.
We have a third-party amendment to subsection 63(2), being item 71. All those in favour of the third-party amendment? All those against? The motion is lost.
Shall section 63, as amended, carry? All those in favour?
Mrs Boyd: Can we get a recorded vote on this one, Mr Chair?
The Chair: Yes, recorded vote. All those in favour?
Ayes
Doyle, Hudak, Ron Johnson, Klees, Leadston, Parker, Tilson.
Nays
Boyd, Guzzo, Martel, Ramsay.
The Chair: Section 63, as amended, is carried.
Section 64: First are all government amendments. Is there any objection to taking all the government amendments at one time? If there's any, I can't. If not, I will refer to the government amendments to section 64, being items 72 to 84 of your brief. Shall those amendments carry? All those in favour? All those against? Those amendments are carried.
Shall section 64, as amended, carry? All those in favour? All those against? Carried.
Shall section 65 carry? All those in favour? All those against? Carried.
There is a new section proposed by the government, section 65.1, being item 85 of your brief. We're getting down near the bottom of the pile.
Shall section 65.1 carry? All those in favour? All those against? It is carried.
Shall sections 66 to 68, inclusive, carry? All those in favour? All those against? Carried.
There is one government amendment to section 69, referring to section 198.2 of the Highway Traffic Act, being item 86 of your brief. Shall the amendment carry? All those in favour? All those against? Carried.
Shall section 69, as amended, carry? All those in favour? All those against? Carried.
We're now moving to section 70. There is one government amendment to section 70, referring to section 198.4 of the Highway Traffic Act, being item 87 of your brief. Shall the government amendment carry? All those in favour? All those against? Carried.
Shall section 70, as amended, carry? All those in favour? All those against? Carried.
Section 71: We have two government amendments. Again, if there's no objection, I'll deal with both of them. Shall the two amendments to section 71 carry? All those in favour? All those against? Carried.
Shall section 71, as amended, carry? All those in favour of section 71, as amended? All those against? Carried.
Section 72: We have one government amendment to subsections 72(2) to (5), being item 93 of your brief. Shall the government amendment carry? All those in favour? All those against? Carried.
Shall section 72, as amended, carry? All those in favour? All those against? Carried.
Section 73: Shall section 73 carry? All those in favour? All those against? Carried.
Shall section 74 carry? All those in favour? All those against? Carried.
Shall the long title of the bill carry? All those in favour? All those against? Carried.
Shall Bill 82, as amended, carry? All those in favour? All those against? It is unanimous. Carried.
Shall Bill 82, as amended, be reported to the House? All those in favour? All those against? Carried.
Ladies and gentlemen of the committee, I thank you very much for your indulgence and your good work tonight. I shall report this bill to the House tomorrow. Thank you very much. This meeting is adjourned.
The committee adjourned at 2038.