The House met at 2 o’clock, p.m.

Prayers.

Mr. L. M. Reilly (Eglinton): Mr. Speaker, before beginning proceedings, I know that you and other members of this Legislature would like to welcome, with me, several students from St. Clement’s School. They are accompanied by Mr. and Mrs. George Mills, Mrs. Lucas, and Mrs. Farquharson.

Mr. Speaker: Statements by the ministry.

ONTARIO LOTTERY

Hon. R. Welch (Minister of Culture and Recreation): Mr. Speaker, on Monday last, a week ago today, the hon. member for Grey-Bruce (Mr. Sargent) asked a number of general questions in connection with the Ontario Lottery; and the hon. members for Ottawa East (Mr. Roy) and Waterloo South (Mr. Good) asked by way of supplementary more specific questions. I wanted to reply to them, but out of courtesy to the House, as far as the question period is concerned and since this is a bit lengthy, we thought we would do it by way of statements prior to the question period.

I had intended to respond to those questions on Thursday, but out of courtesy to two of the members who were not in the House that day, I refrained from doing so --

Mr. I. Deans (Wentworth): How does the minister know they weren’t in the House?

Hon. Mr. Welch: Instead I sent a copy of my remarks to the three members concerned and because the member for Grey-Bruce received a copy of those remarks, I was a bit disappointed that he should get up on Friday and make statements about which he had complete information, and make other remarks which were without foundation.

First of all, Mr. Speaker, our Wintario lottery is not based upon a draw from among tickets placed into a drum or into a computer. Let me be clear about that particular point, as I think it is very significant. There are no tickets to be entered into a mix. Instead, the Wintario system is based on a game where people win available prizes if the numbers on their tickets match all or part of the numbers randomly selected.

I am told by the Ontario Lottery Corp. that tickets for each Wintario lottery are sold in groups of 90,000 tickets, each group being called a series. The tickets in each series are numbered from 10,000 to 99,999 so that the same sequence of 90,000 will be repeated in each series. Each series is numbered as well. I am assured that the number of series sold for each draw is determined only by public demand.

For instance, for the third draw which was held on June 12 there were 48 series sold to the distributors; so there would be 48 tickets bearing the winning number of 97729, one in each of those series. Only two of these tickets however, had the winning series numbers -- that is 19 and 46 -- thereby making those tickets worth $100,000. So, Mr. Speaker, the potential prize structure for that draw was as follows: two prizes at $100,000; 46 prizes at $10,000; 384 prizes at $1,000 and 3,888 at $100. Altogether then, there was provision made in the draw for 4,320 prizes for a total value of $1,432,000.

Mr. Speaker, the hon. members have been asking about the prize structure and the percentages claimed so far; so I’d like to report on that as well. The prize structure of the Wintario lottery guarantees that every time a new series of tickets is offered for sale, 90 additional prizes, valued at $26,100 and consisting of one at $10,000, eight at $1,000 and 81 at $100, are added to the prize fund before the tickets go on sale. It’s very important that the prizes are deposited before the tickets are offered for sale.

I’m advised by the corporation that because of this method the odds of winning a prize always remain the same; that is, a ticket buyer has one chance in 1,000 to win a prize, no matter how many series of tickets are sold. It’s a straight-forward proposition. If your number comes up, you win. It’s as simple as that.

Mr. J. E. Stokes (Thunder Bay): That sounds evident.

Hon. Mr. Welch: The corporation’s marketing system requires that distributors and retailers pay for their tickets in advance. Any tickets that are not sold to the public can be returned to the corporation after the draw, provided these tickets are still sealed in their original envelope. Any envelope that is open obviously cannot be refunded. The corporation does not attempt to identify any returned tickets.

To give the hon. members some idea of what’s been happening, I’ve been informed by the corporation that by noon June 20, that is last Friday, 94 per cent of all prizes have been claimed for the draw held on May 15 and almost 80 per cent of all prizes have been claimed for the May 29 draw. I might add that that figure will be a lot higher once the second $100,000 winner comes forward to claim his prize.

For the June 12 draw, after only one week, 41 per cent of the prizes have been collected. Bearing in mind that almost three-quarters of the prizes are collected through the postal system, I think that’s pretty good, Mr. Speaker.

So to date, as far as our draws are concerned, over $2.25 million in prizes have been distributed to the people of the province.

Let me emphasize again, Mr. Speaker, once funds are dedicated to prizes, they will only be used and paid out as prizes. In other words, all the value of unclaimed or unsold winning tickets becomes available for special prizes. In no instance does the corporation, or indeed the government, benefit from prizes that remain unclaimed.

Experience in other jurisdictions indicates that after one year approximately two to three per cent of all prizes remain unclaimed for one reason or another; we have every reason to believe that our experience will be about the same. So prizes accumulating because of unsold tickets or because they are unclaimed will become the basis for a special prize account, as specified by the regulations made in the Ontario Lottery Corp. Act. This special prize account becomes available for a bonus prize for some other draw, once the claiming period of 12 months elapses.

Mr. Speaker, in terms of the question from the hon. member for Waterloo South, I am pleased to say that administrative expenses of the corporation are in line with the original projections, The hon. members will recall that at the April 2, 1975, press conference, it was estimated that prizes will amount to about 38 per cent; commission to distributors and retailers 15 per cent and Ontario Lottery Corp. expenses seven per cent; leaving a net revenue for cultural and recreational projects of 40 per cent.

In total then, Mr. Speaker, 78 per cent of each ticket goes either in the form of prizes or to pay for cultural and recreational projects. I expect to announce shortly the method of the allocation of the Wintario net proceeds to be used for this year.

Of the other 22 per cent, seven per cent is for administrative costs to cover staff costs, advertising and printing; eight per cent is offered as commission to retailers and goes to small variety and grocery stores and the many thousands of other outlets which help to make the lottery available in every part of the province.

The remaining seven per cent presently goes to the wholesaler or distributor.

Mr. J. E. Bullbrook (Sarnia): There’s the rub.

Hon. Mr. Welch: However, I am advised by the corporation that this arrangement is now under review.

Mr. Bullbrook: Oh, to be a distributor!

Hon. A. Grossman (Provincial Secretary for Resources Development): How come it was kosher with the feds? They are all Liberals.

Hon. Mr. Welch: Thank you, Mr. Speaker, for the opportunity of making what may appear to be a rather lengthy reply to these questions but I felt that the issues were of considerable public moment and that the House would be interested in having this information.

Mr. Speaker: Order, please.

Mr. E. Sargent (Grey-Bruce): Mr. Speaker, when do we have some dialogue on this?

Mr. Speaker: Order, please.

Interjections by hon. members.

Mr. Speaker: Order, please. Question period will commence in a few moments.

WIND ENERGY STUDIES

Hon. D. R. Timbrell (Minister of Energy): Mr. Speaker, the hon. members may have noticed a joint advertisement of the Ontario Hydro Corp. and the Ministry of Energy in this morning’s Globe and Mail. For the information of the hon. members and particularly the member for Sandwich-Riverside (Mr. Burr), I would like to point out that the advertisement invites the submission of proposals for the study of the application of wind generators for local power supply in Ontario.

Mr. S. Lewis (Scarborough West): Wind energy! It finally came around.

Mr. J. F. Foulds (Port Arthur): They finally came into the 20th century.

Hon. Mr. Grossman: Windmills of the 20th century!

Mr. Lewis: A windmill for every home.

Hon. J. R. Rhodes (Minister of Transportation and Communications): The NDP will probably set us back that far.

Hon. Mr. Timbrell: The government has expressed its concern about the lack of basic amenities in small communities in the remote north of this province. As a result of this concern, two programmes involving the supply of electrical power to such communities already have been undertaken. As the hon. members know, these programmes are community electrification to support remote northern Ontario telecommunications and the electrification of northern communities programmes.

Needless to say, the government is interested in increasing even further the availability of electrical power to communities in the north. However, Mr. Speaker, as the hon. members can appreciate, there are difficulties in the supply of power to remote communities; such difficulties as transportation and access problems and high capital costs, among others. Wind energy offers the potential for energy production on a local scale with minimal environmental impact and freedom from the price escalation of fossil fuels.

Mr. Stokes: Try Armstrong and Fort Severn as a pilot project.

Hon. Mr. Timbrell: Technically, it should be possible to supply remote northern communities with medium capacity wind generator systems. To this end, Ontario Hydro and the Ministry of Energy are advertising for proposals to undertake the feasibility study I have mentioned. This study will provide: An opportunity to define how wind energy might apply to Ontario; an assessment of the potential of medium capacity wind generators for the supply of sufficient electrical power for telecommunications and possibly community uses in communities far removed from the power grid; an evaluation of the performance of wind generators and wind generator systems; a comparison of wind generation with alternative means of power supply; and an opportunity to demonstrate how load growth for other community uses can be accommodated. A demonstration project may be undertaken in 1976, if the results of this study warrant such a field test.

Mr. Speaker, I would like to mention that the consultants who will conduct the study will be selected by a committee comprised of members of Ontario Hydro, the Ministry of Energy, the National Research Council and the Federal Atmospheric Environment Service.

Mr. Lewis: How about the member for Sandwich-Riverside? Surely the minister will put him on the committee. Surely the minister will give him some special position.

Mr. Speaker: Order, please. Oral questions; the hon. Leader of the Opposition.

NANTICOKE PLANNING BOARD

Mr. R. F. Nixon (Leader of the Opposition): I would like to direct a question to the Minister without Portfolio from Brantford. Has the resolution from the city of Nanticoke come to his attention, with his special responsibilities for dealing with municipalities, asking the government to reconsider its decision on the make-up of the special planning group that is thinking about and planning for the development of a new city, I’m speaking of the proposed city of Nanticoke, within the city in the Haldimand-Norfolk region? Is the minister aware that at the present time that planning group is chaired by a Conservative member from Toronto and that there are not sufficient representatives from the elected council of Nanticoke itself, in their view? Will the minister recommend to his colleagues a change in this policy so that for the planning of the proposed new city there will be a higher ingredient, or a stronger concentration let us say, of local views in the original planning development?

Hon. R. B. Beckett (Minister without Portfolio): Mr. Speaker, I am aware of that letter. It was addressed to the Treasurer (Mr. McKeough) in his capacity as Treasurer and it is before the ministry now.

Mr. R. F. Nixon: Supplementary: Would the minister indicate, if he has a view he can indicate to the House, that would emphasize local planning rather than the imposition of centralized planning, which at least appears to be the present policy and concept, in view of the fact that the planning group is chaired by a member from Toronto and so on?

Hon. Mr. Beckett: Mr. Speaker, I am sure all these matters will be taken into consideration.

Mr. Lewis: Oh he will make out all right; he will handle the portfolio all right. He has certainly picked up his mentor’s style.

Mr. J. R. Breithaupt (Kitchener): He hasn’t used “the fullness of time” yet, but there is hope.

Mr. Bullbrook: Well ask him and see if he does.

Mr. R. F. Nixon: Well we may as well give him the opportunity; when will this be accomplished?

Mr. Bullbrook: Come on. Go ahead, go ahead.

Hon. Mr. Beckett: In the fullness of time, Mr. Speaker; in the fullness of time.

Mr. R. F. Nixon: Now we’ve got all those over with, all the old clichés are out in the open --

Mr. M. Gaunt (Huron-Bruce): Move into the Premier’s seat.

Mr. D. C. MacDonald (York South): What a burst of imagination.

MERCURY POLLUTION

Mr. R. F. Nixon: I would like to ask the Minister of the Environment if he could report to the House the information dealing with the mercury pollution levels and concentrations remaining in the St. Clair system; and particularly in the west end of Lake Erie, since the commercial fishermen have indicated that they have attempted to get this information and it is evidently not publicly available.

Hon. W. Newman (Minister of the Environment): Mr. Speaker, all of the information we have on the testing -- and we’re going ahead on a continuous basis, with our testing in both the English-Wabigoon Rivers system and the St. Clair River system -- all this testing we're doing is public information. We have released everything we have to date, to my knowledge, unless it is the latest test that is still being done.

Mr. R. F. Nixon: Supplementary: I think they are concerned about the resumption of commercial fishing in the area, and I understand there is at least another aspect to that issue, beyond just the presence of mercury as a pollutant in the waters and in the fish that would be caught. What is the government policy with regard to that? Is there a level below which fishing will be allowed to be resumed or in fact, is there going to be a special decision on that?

Hon. W. Newman: Mr. Speaker, at this present moment in time, the figure that we’re working on is 0.5 parts per million mercury in the fish.

Mr. R. F. Nixon: Are we close to that? When are they going to start fishing down there? Does the minister have any further information?

Hon. W. Newman: Mr. Speaker, as far as commercial fishing is concerned, the member would have to ask my colleague, the Minister of Natural Resources (Mr. Bernier); but the present standard for a safe mercury level in fish is 0.5 parts per million. As we know, the age and size of the fish has some varying effect on the levels, and the levels, on the overall average in the last test that we had, are still unsatisfactory.

PICKERING AIRPORT

Mr. R. F. Nixon: I would like to direct a question to the Minister of Transportation and Communications. Is there any further information he can give to the House on the government’s policy toward the development of the Pickering Airport? Have the communications with the government of Canada come to him as well as to the Premier (Mr. Davis), so that the House might be appraised of any change in the stated policy of the government of Canada which would affect the decisions taken by this government, particularly by the Minister of Transportation and Communications in giving access to the facility when and if it is built?

Hon. Mr. Rhodes: Mr. Speaker, the correspondence was addressed to and mailed to the Premier. I have had brief conversations with the Premier on the matter and I’ll be having more. I do have a general idea of the contents of the letter, and I think the Premier said last week that he would be reporting back to the House as to the contents of the letter and what our analysis of it is. I have nothing more that I can add at this time.

Mr. R. F. Nixon: If I might ask a supplementary: Based on the decisions announced by the Treasurer -- in his former incarnation as Treasurer -- that we as a province favoured that location, were there not commitments made at the time to service the airport as it was originally conceived? That is, had there not been a contractual commitment made by the province to provide those facilities that will obviously be of a provincial nature in this connection?

Hon. Mr. Rhodes: Mr. Speaker, there are no contractual arrangements that I know of that have been made to supply services. I do know that, should the project go ahead as it was originally planned, then of course we would be entering into discussions with the federal government in order to see what cost sharing may be involved on the facilities that will be going in. There are some provincial facilities that would have been installed in that particular area anyway over a period of time, as it relates to my ministry. The coming on the scene of the Pickering Airport, of course, conceivably will move the time frame of these facilities up considerably. We would like to discuss cost-sharing with the federal government, but we’ll have to wait until we get a final look at the total contents of Mr. Marchand’s letter.

Mr. R. F. Nixon: The minister hasn’t read the letter yet?

Hon. Mr. Rhodes: I have read the letter, yes, but I’m having discussions at the present time with the Premier and others on its contents,

Mr. R. F. Nixon: Supplementary: We have raised this matter before, but since this is a matter of public concern and we represent the public here, would it not be the minister’s view that we should be made aware of the contents of the letter so that if a decision is made within the next few days it can be discussed in this House; or if a decision is postponed until we might not be in session, we would at least have the information, along with other citizens of Ontario and the residents of the area, so that we would know the background to any change in government policy.

Mr. Sargent: Supplementary, Mr. Speaker.

Hon. Mr. Rhodes: Does the member want to have a supplementary before I give him the answer?

Mr. Sargent: I didn’t think the minister had an answer for the last one.

Hon. Mr. Rhodes: Mr. Speaker, the Premier has stated that the contents of the letter would be made public and he intends to do so. I don’t feel that I have the authority to release the contents of a letter addressed to the Premier from Mr. Marchand.

Mr. Speaker: The member for Grey-Bruce.

Mr. Sargent: Supplementary: If this letter from Mr. Marchand is a position point, and if the minister knows about it, the Premier knows about it and some civil servants know about it, why isn’t the Legislature entitled to know that too?

Hon. Mr. Rhodes: Mr. Speaker, I can only repeat that I do not have the authority to release the contents of a letter that has not been addressed to me. I am sure the hon. member might have some sort of contact with Mr. Marchand; perhaps he could send him his own private letter.

Mr. Speaker: Any further questions?

Mr. Sargent: Why doesn’t the minister grow up?

Hon. Mr. Rhodes: That’s a good question for the member.

Mr. Speaker: Any further questions; the Leader of the Opposition?

BRADLEY-GEORGETOWN TRANSMISSION CORRIDOR

Mr. R. F. Nixon: I have a question I’d like to put to the Minister of Energy.

What was the disposition of the continuing, perhaps misunderstanding, between the minister and the group of concerned citizens who want a public, independent hearing on the route of the Bradley-Georgetown power corridor? Since there has been reference of that matter to the environmental hearing group, would the minister not think that, in order to satisfy these concerned citizens, it should go to an independent group so that there is some thought that these citizens are going to have a public situation where they can express their objections?

Hon. Mr. Timbrell: Mr. Speaker, I would argue, and I hope the Leader of the Opposition isn’t saying otherwise, that the Environmental Hearing Board is an independent body that will report and has all the leeway at its disposal to study the situation. Following my statement in the Legislature -- the exact date escapes me; I think it was on the 6th, -- on the evening before the cabinet meeting in Kitchener, did meet with about 30, 35 or 40 people, I guess, to explain the statement and how I had arrived at it. But to answer the question of the leader of the Opposition, I’d say the Environmental Hearing Board is independent.

Mr. R. F. Nixon: Supplementary: Has the minister responded to the telegram which he received and which was sent to a number of other members of the House concerned? What was the nature of his response?

Hon. Mr. Timbrell: I sent a letter by cab, as a matter of fact on Friday, to the chairman of the committee --

Mr. R. F. Nixon: That was Mr. Mann.

Hon. Mr. Timbrell: That’s right -- responding not only to that telegram but to one or two letters as well, tying it all together.

Mr. Speaker: Supplementary. The member for Sarnia.

Mr. Bullbrook: I prefer to yield to my colleague.

Mr. Speaker: All right. The member for Huron-Bruce.

Mr. Gaunt: Supplementary, Mr. Speaker: What is the purpose of the Environmental Hearing Board’s setting up information centres with respect to this particular part of the line, particularly when the hearing is going to commence within the next two weeks?

Hon. Mr. Timbrell: Mr. Speaker, I haven’t spoken with the chairman of the board, Mr. Caverly, and I don’t tell them how to conduct their hearings or their process, but I would assume that the purpose is to make as many people as possible in the area aware of the fact that the hearing has been called and to explain to them what it is going to deal with.

Mr. Speaker: Supplementary. The member for Sarnia.

Mr. Bullbrook: By way of supplementary, since the minister regards the Environmental Hearing Board as such an objective tribunal, would he consider giving them the ultimate objectivity of making the decision?

Hon. Mr. Timbrell: Mr. Speaker, this government has never supported it, and I am sorry to hear that the member’s party does support the notion that the final decision-making power should be anywhere but in the hands of elected people.

Mr. Bullbrook: By way of one final supplementary, to clear up the question. This is a question period, not a statement of opposition policy. May I ask, therefore --

Hon. Mr. Rhodes: What is the difference?

An hon. member: The Liberals don’t have any policy to announce.

Mr. Speaker: Order, please.

Mr. Bullbrook: Can we assume that the objectivity upon which the minister relied in response to the first question is one only of apparency and not of reality?

Interjections by hon. members.

Hon. Mr. Timbrell: I am not sure I entirely understand the question. I certainly appreciate the member’s comments. If this were anything but a question period, and instead a period for the statement of Liberal policies, it would be very short indeed and we wouldn’t have to have too many in a year.

Interjections by hon. members.

Mr. Speaker: Order, please.

Hon. Mr. Timbrell: Let me just reiterate that I have great faith in the board that it will conduct the fullest possible hearings to consider this situation and will give to me a complete and impartial judgement.

Mr. E. R. Good (Waterloo North): Recommendation.

Mr. Speaker: The member for Scarborough West.

ENERGY PRICES

Mr. Lewis: To the Minister of Energy: Is he gradually coming around to the conclusion that there is likely to be an oil price increase announced by Ottawa some time today? Despite the minister’s unwillingness to recognize the obvious, has he been informed in advance of what that increase is going to be?

Hon. Mr. Timbrell: Mr. Speaker, I believe the Prime Minister of Canada will have something to say at 5 o’clock today. I have not been given the details of what it is he intends to say. Once he has made that statement the government will give its reaction tomorrow.

Mr. Lewis: Right, I understand that. Before the Prime Minister makes the statement, can the minister indicate to us his intention in advance to make sure that all the oil companies operating in the Province of Ontario are required by law to exhaust their inventories before any increase is allowed for the citizens of this province, since the oil companies have themselves this weekend admitted inventories ranging from 45 to 90 days -- and that’s just what they have admitted?

Hon. Mr. Timbrell: Mr. Speaker, this is a situation that we are actively pursuing. If the government of Canada, much against the advice and wishes of the government of this province --

Mr. Lewis: If; if it does.

Hon. Mr. Timbrell: -- and the provinces of Nova Scotia, Manitoba and New Brunswick, carries out this folly then we will --

Mr. Bullbrook: Call it Lougheed’s folly; how’s that?

Hon. Mr. Timbrell: -- we will insist on immediate consultation with the government of Canada to make sure that in fact happens.

Mr. Speaker: The member for York South.

Mr. MacDonald: A supplementary, Mr. Speaker: Is the minister pursuing it as actively as he did last year when he did nothing and they walked away with the increase on the inventory?

Hon. Mr. Timbrell: Mr. Speaker, I don’t accept that in fact.

Mr. Lewis: They walked away with the inventory profit.

Mr. MacDonald: This government didn’t do anything.

Hon. Mr. Timbrell: There is no evidence to support that charge.

Mr. M. Cassidy (Ottawa Centre): There certainly is.

Mr. MacDonald: The oil companies confirmed that they did.

Hon. Mr. Timbrell: All I would say is that we, in the Ministry of Energy and I as the Minister of Energy, are --

Mr. Stokes: Obviously the minister didn’t buy any gasoline.

Mr. Speaker: Order, please.

Hon. Mr. Timbrell: We are actively pursuing a number of options that will be available to us if they carry out this folly.

Mr. MacDonald: A supplementary question: Is the minister denying that last year the companies raised or charged the extra price on the inventory and took it as an extra profit? Is he denying that?

Hon. Mr. Timbrell: Mr. Speaker, I wasn’t minister at the time, but as I recall --

Mr. Stokes: What was he doing, riding a bike?

Hon. F. S. Miller (Minister of Health): He did that well.

Mr. Deans: He is not strong enough to ride a bike.

Mr. Lewis: I heard about his bike-riding episode for Harry Brown. If I were minister I would walk.

Mr. Deans: Slowly.

Mr. Speaker: Order, please.

Hon. Mr. Timbrell: I didn’t know the member heard of my prowess. Walking is safer; walking is much safer for me.

As I recall, the federal government imposed a 45-day adjustment period or whatever one wants to call it.

Mr. Lewis: They had 95 days’ inventory.

Hon. Mr. Timbrell: Given the nature of the oil system, from wellhead to pipeline and so forth, to Sarnia and other points in the east, we have to rely on Ottawa. That’s what I am saying -- as soon as we know exactly what they intend to do, and maybe between now and 5 o’clock they will confirm that they are going to accept our arguments and leave things as they are and should be --

Mr. Lewis: Oh, yes. Oh, I know; sure.

Mr. MacDonald: They conned the minister last year, I hope they are not going to con him again.

Mr. Cassidy: The industry wins again.

Hon. Mr. Timbrell: But if, by chance, the government of Canada chooses not to exercise its proper responsibilities to this province and the other consuming parts of the country, then we will press it on that very point.

Mr. Speaker: Any further questions?

Mr. Lewis: On that very point -- by way of helping the minister to press it, since the increases are allegedly going to be $1.50 a barrel without the inventory days set out as yet -- will the minister take into account that if it allows 30 days of inventory, that will mean a $53-million profit for the oil companies over and above their other entitlements; if it allows 45 days, it will mean $42 million from the Province of Ontario; and if it allows 60 days of inventory, it will mean $32 million additional to which they are not entitled; given the 107 days of inventory they have on hand? Can he undertake now in advance to dig his heels in on this point at least, since he has lost on all the other points?

Hon. Mr. Timbrell: Mr. Speaker, I am not at all prepared to accept -- I don’t think anybody in this House should -- the notion that we have lost. A; There is time; and B, originally they were talking about $2.50 or $3 a barrel, and if they come in below that --

Mr. Lewis: A dollar and a half is a victory?

Hon. Mr. Timbrell: If they come in below that --

Mr. Lewis: That’s six cents a gallon in Ontario.

Mr. Speaker: Order, please.

Hon. Mr. Timbrell: -- I think that would be in no small part due to the pressure applied by the Province of Ontario, although we still hope --

Mr. Lewis: Everyone will thank him.

Mr. Breithaupt: They are really afraid of the minister.

Mr. Lewis: That is called snatching defeat from the jaws of victory.

Hon. Mr. Timbrell: Absolutely right; absolutely right.

Interjection by an hon. member.

Mr. Speaker: Order, please; order.

Hon. Mr. Timbrell: That’s right. I have forgotten the member’s question; what was it?

Mr. Lewis: I just want him not to let them have profits on the inventory as well.

Hon. Mr. Timbrell: Mr. Speaker, as I have already indicated -- and I don’t know where the hon. member gets his figures -- we are working on it --

Mr. Lewis: They were corroborated.

Hon. Mr. Timbrell: -- trying to get those figures up to date as to inventories and possible ramifications.

Mr. MacDonald: Our research department worked them out last week. When is the minister going to do it?

Hon. Mr. Timbrell: The NDP researchers have nothing else to do.

Mr. Foulds: How many ministries is the minister responsible for? Our researchers have to cover over 26. And they’re still ahead of the minister.

Interjection by an hon. member.

Hon. Mr. Timbrell: The point is, and I reiterate, if they go ahead with this, we will actively pursue that very point.

Mr. Lewis: Thank you, that will be a refreshing change from last year. We lost over $62 million last year.

Mr. Speaker: Any further questions?

AUTO INSURANCE RATES

Mr. Lewis: A question of the Minister of Consumer and Commercial Relations: Does the minister know the automobile insurance companies have started sending out their little green cards, indicating a 15 per cent increase in the insurance rates effective in this next year? Can he indicate to the House what was the result of that review which the superintendent of insurance was undertaking, about which he spoke some few weeks ago?

Hon. S. B. Handleman (Minister of Consumer and Commercial Relations): First of all, Mr. Speaker, my answer to the first part of the question is I didn’t know they were sending out their rate increases. I had expected to receive mine before now but I haven’t. My anniversary date is in July and I expected to have that by this time.

The result of those discussions, I think, will indicate that we have managed to maintain a competitive differential, between the low rates and the high rates in this province, of approximately 40 per cent; so there is a wide range of choice for people shopping for insurance.

Mr. Speaker: The member for Thunder Bay.

Mr. Stokes: A supplementary: Will the minister investigate why recent increases of 30 to 40 per cent have already been applied to new underwritings in northern Ontario?

Hon. Mr. Handleman: Mr. Speaker, I think the reasons for those are pretty self-evident. The costs of repair in northern Ontario have sky-rocketed, for a variety of reasons which we discussed during estimates. I am sure the member is as familiar with those factors as I am.

Mr. Lewis: By way of supplementary: Is it possible for the minister to table some of this information in order to demonstrate to the House why the superintendent of insurance passed these increases on or allowed them to be passed on, which simply maintain the differential which already existed? On what grounds were the submissions of the automobile insurance companies approved? Can the minister now tell that to the Legislature?

Hon. Mr. Handleman: Mr. Speaker, it is not a question of them being approved. It is a question of them being negotiated with us.

Mr. Lewis: Negotiated?

Hon. Mr. Handleman: They submitted certain information in confidence and there are certain rates which are -- I assume from what the leader of the New Democratic Party is saying there are certain announcements to be made by the insurance companies very shortly, or they are in the process of making them. I haven’t seen those yet and I don’t want to comment on them until I have seen them.

Mr. Stokes: A supplementary: Has the minister taken the trouble to find out whether the cost of repairs is so much greater in northwestern Ontario than it is in Manitoba where they enjoy much lower rates?

Hon. Mr. Handleman: Mr. Speaker, I think we could spend all afternoon discussing comparison of rates in Manitoba and Ontario; I don’t believe the House would want me to go into that kind of detail at this time. There was ample opportunity in the estimates to discuss this.

Mr. Stokes: Has the minister gone into it?

Hon. Mr. Handleman: It was admitted during estimates there is a deep difference in philosophy between the party opposite and our party on the question of insurance rates and the management of the insurance plan.

Mr. MacDonald: Philosophy doesn’t alter the cost of repairs.

Hon. Mr. Handleman: I certainly don’t want to sit here and say for one minute that the rates in Manitoba are lower than those obtainable in Ontario; I won’t admit that at all.

Mr. Speaker: The member for Yorkview with a supplementary.

Mr. F. Young (Yorkview): Mr. Speaker, a supplementary. Has the minister come to any conclusions regarding the matter I raised in the estimates in respect to repair parts -- that the cost of crash parts of automobiles has been raised by one-third over the past year, while the number of accidents and therefore the number of claims have decreased because of safer bumpers and safer cars? In other words, has the ministry determined whether or not the motor ear companies are, in effect, creaming off the gain which should be coming to the insurance companies and to the consumers?

Hon. Mr. Handleman: Mr. Speaker, we thought it was a very interesting point that the hon. member raised during the estimates, and we certainly are pursuing it. As a matter of fact, I have asked some of the insurance companies in Canada if they’re aware of the position taken by their counterparts in the United States during the hearings that the hon. member referred to. Apparently these people I spoke to were not aware of it, but were going to go back to their head offices to determine whether or not they have taken a position. We are looking into it ourselves and we think it’s a very interesting point to pursue.

Mr. Foulds: Supplementary, Mr. Speaker.

Mr. Speaker: A final supplementary.

Mr. Foulds: Thank you, Mr. Speaker. Is the minister in a position to confirm or deny that in northwestern Ontario all replacement parts on automobiles are sold at the retail level, rather than at the wholesale level, to garages, mechanics and so on, who work independently of the main automobile dealers in Thunder Bay? If that is so, can the minister investigate that as a possible price-fixing monopoly?

Hon. Mr. Handleman: Mr. Speaker, first of all, I think the hon. member is quite aware of the fact that combines legislation is federal. I’m not aware of whether or not that is being done. It would seem to me that charging a wholesaler, in this case a car repair shop, the list price for a part might possibly be an unfair trade practice that we’d be prepared to look into if there’s any evidence brought to us. But as far as price fixing is concerned, of course, we have no authority in that field.

Mr. Speaker: The member for Scarborough West.

Mr. Lewis: I want to ask a related question for purposes of clarification; I put it as a new question, Mr. Speaker. Is the minister saying that the superintendent of insurance negotiated certain changes with the automobile insurance companies, but did not anticipate an increase in rates? Is that what the minister is saying?

Hon. Mr. Handleman: Mr. Speaker, I suppose it would depend on how the hon. member defines the word negotiations.

We’re not talking about collective bargaining, we’re talking about discussions in which information is brought to us. Certain responses are made by people in our ministry, including the superintendent, and as a result of those discussions a rate is established. I consider that to be negotiation, in which we point out certain factors and they point out certain factors. But there is no question here about our either approving or disapproving rate proposals put to us.

Mr. Lewis: Some additional information: Is that kind of information brought to the minister? Does he participate ultimately in the rate-setting process?

I’m confused about why it is that an arm of government -- the superintendent of insurance, acting on behalf of government in the public interest -- cannot have its activities scrutinized by this Legislature. I don’t understand why the minister cannot make a statement about the way in which the rates were arrived at, and which components. were discussed and altered.

Hon. Mr. Handleman: Mr. Speaker, first of all, no, I do not personally involve myself in the discussions. We do set forth for the superintendent the question of government policy and philosophy, and he operates within the guidelines that we lay down for him.

Mr. Stokes: That is, all the traffic will bear.

Mr. Speaker: Further questions from the member for Scarborough West?

BASKET PRODUCTION

Mr. Lewis: One question of the Ministry of Industry and Tourism, if I may: Is the minister aware of the anxiety focused in the southwestern Ontario area generally about the federal grant to the Rapp company in the Renfrew-Pembroke federal grant region, $182,000 I think it was, for the production of baskets; and a little company in Forest, Ont., called the Forest Basket Co., having reduced its employment from 120 to 20 people as a result of the collapse in the basket market? Is there any intervention being made on the part of the minister to correct this apparent anomaly of so much money going to an American-based company while a little Canadian company goes out of production?

Hon. C. Bennett (Minister of Industry and Tourism): Mr. Speaker, I am not aware of it, but I’d be prepared to look into the situation and find out exactly what is developing. Some of the financial programmes have caused some of the private sector some trouble because they have run into a direct conflict of interest in their programmes. We will take this under advisement.

Mr. Lewis: Could the minister do that? I would appreciate it.

No further questions, Mr. Speaker.

Mr. Speaker: The member for Waterloo North.

COURT CASELOADS

Mr. Good: Thank you, Mr. Speaker. A question of the Attorney General: Is the Attorney General prepared to do something about the discrepancies in the fact that his own area, the Niagara region, has six judges who had a total of 74,000 cases last year, and Waterloo region has only four judges with the same number of cases to look after?

Hon. J. T. Clement (Provincial Secretary for Justice): Mr. Speaker, I would appreciate clarification as to the number of cases the member is talking about. Is he talking about family court cases, criminal or both?

Mr. Good: These figures are for the criminal division only.

Hon. Mr. Clement: Mr. Speaker, I am aware that in the criminal process in the Kitchener area, as in one or two other areas, last year there was what would appear to be a tremendous demand for additional staff. We are looking at it. It isn’t the only part of the province that finds itself in this difficulty. There are other parts of the province that find themselves with a tremendous backlog of family court cases. It is an ongoing thing. It isn’t carved in stone that only that number of judges shall ever sit there.

I point out to the hon. member that this is one of the types of situations that the legislation that went through this very House some four weeks ago in the central west pilot project is hoping to resolve at this particular level -- that is, at the provincial level -- by having a certain portability of judges and/or resource people to assist the judges to move into an area on a temporary basis to assist where there is a certain upsurge of one type of case in a particular area. Kitchener, of course, is within the pilot project area.

Mr. Good: A supplementary: Is the minister concerned about the discrepancies in all the areas across the province? For instance, Middlesex county has 10 courtroom facilities, which is double the number of facilities in the Waterloo region, and they are handling only about one-fifth more cases. Has the minister looked at the caseloads across the province to see if there can’t be better facilities and the proper number of judges assigned to the various areas where the caseloads are heavier?

Hon. Mr. Clement: Mr. Speaker, perhaps I am not making myself clear. One can always appoint more judges if one has unlimited resources. One can always build more courtrooms and hire more staff, but that isn’t really the answer to the problem in our assessment. The answer to the problem is to utilize to the maximum the resources which we have, taking into mind the talents of the particular people we require to assist the courts as well as the availability of judges.

As for some of the interesting preliminary figures that have come to our attention indicating courtroom use in the pilot project area, in one instance we find that a courtroom is being utilized, for example, 91 per cent of the available time -- that is, during regular courtroom hours; I am not talking about 24 hours a day -- where in an adjacent area it might be as low as 38 per cent. So the idea of the project is to ascertain this and utilize adjacent or adjoining premises and adjacent or adjoining staffs and members of the bench, particularly in the family court and criminal court matters. It may well be that we don’t have to hire X judges and construct Y additional courtrooms. We may be able to do it with smaller numbers both in persons and in dollars. This will have to await the outcome of the project study.

Mr. Speaker: The member for Wentworth.

STUDENT SUMMER EMPLOYMENT

Mr. Deans: Mr. Speaker, I have a question of the Treasurer. Is the Treasurer aware that there are not nearly enough jobs in the Hamilton-Wentworth area to fill the need, both in terms of the long-term needs of the unemployed and the short-term needs of students coming into the work force looking for employment this summer? What kind of programme does the minister have in force and currently working that will produce any number of jobs in the Hamilton-Wentworth area?

Hon. W. D. McKeough (Treasurer, Minister of Intergovernmental Affairs): Mr. Speaker, I am not aware that the situation is any more critical in Hamilton-Wentworth than it is elsewhere in the province. As a matter of fact, my own observation would be that it may be somewhat better in Hamilton-Wentworth inasmuch as the steel companies have not as yet felt the slowdown which some other parts of the economy have.

The number of summer jobs that can be provided by the government has been provided. As I recall, there are something like 12,000 jobs, up slightly from last year. This is a manageable number. There is no sense in the government’s taking on summer students unless they are going to be properly supervised and unless they are going to have a meaningful job to do.

I have forgotten the total figure, but I think there are going to be many thousands of students who aren’t going to get the kind of employment that they would like this summer.

Mr. Deans: A supplementary question: Given that the minister is right that is it probably no worse in the Hamilton-Wentworth area than it is anywhere else, what kind of programmes are now going to be in effect to ensure that those students can continue in school in the fall, if and when they get through this summer without any employment opportunities?

Hon. Mr. McKeough: Mr. Speaker, if we are talking about the last figure that I saw, other than agricultural employment, it is something like 70,000 students who will not be fully employed this summer. I suggest that there’s very little we can do about that number. I can further suggest to the member that the normal provisions under the student loans and awards will be available this year, but we’re not about to embark on a job programme for 70,000 students; no way.

Mr. Deans: One final supplementary: Given that there is, as the minister says, a nominal increase in the numbers of jobs being provided by government this year, and given that there’s a substantial increase in the number of unemployed in the province this year, why is there not a programme in place now which would have compensated for the difference between the government’s nominal increase and the substantial increase in the unemployed?

Hon. Mr. McKeough: Mr. Speaker, I suggest there is no conceivable way in which we could have located 70,000 students who are without work this summer. There is no conceivable way. The member should use his head.

Mr. Deans: The government just doesn’t try.

Hon. Mr. McKeough: Why doesn’t the member use his head?

Mr. Lewis: The minister just doesn’t care.

Mr. Speaker: Order, please.

Mr. Lewis: The government wipes its hands of every programme that way.

Mr. Deans: What about the people who are unemployed? The minister decided it was too tough.

Mr. Cassidy: It was the queen of France who said, “Let them eat cake.”

Mr. Speaker: Order, please. One final supplementary from the member for Grey-Bruce.

Mr. Sargent: As a supplementary question, Mr. Minister: In Boston they have a rent-a-kid programme, which has been going over like gangbusters. Homeowners across the province could give kids jobs. This would be a great thing to put into effect and the government could do a fast programme now, if it wanted to.

Mr. Speaker: What is the member’s question?

Mr. Sargent: Would the government do it; that’s it?

Mr. Speaker: The member for Sarnia.

Mr. Sargent: The minister doesn’t know.

Mr. Bullbrook: Why doesn’t the member ask the Minister of Energy if he would undertake that programme?

REGISTERED SURGICAL NURSES

Mr. Bullbrook: I would like to direct a question to the Minister of Health, if I may, in perhaps two or three parts. It’s with respect to the obligation of registered surgical nurses to undertake, against their conscientious objection, participation in certain operations,

I understood the policy that was developed by his ministry was that they could do so if they wished. I would like him, in perhaps two or three parts, to clarify whether that was his policy. Does he agree with the directive of the Ontario Hospital Association, now apparently published on many bulletin boards? They say, and I quote: “In this way, staff will have an opportunity to decide whether they wish to start or to continue employment when these procedures are carried out.”

In essence, the OHA is saying: “You can either take it or leave it. We don’t care about your conscientious objection. If you don’t want to participate in these surgical procedures you can quit your job.” Does the minister agree with that?

Hon. Mr. Miller: Mr. Speaker, the question has been asked in various ways at a number of the cabinet meetings around this province. It has been the position of this ministry that any nurse who did not want to work in a setting where abortions were performed, should be allowed to work elsewhere in the hospital. This is a matter of their conscience. We, as a government, have no intention of asking people to work in a delivery room or any other part of the hospital where procedures are carried out that go against their own conscience. My feeling is that a person on staff should not be required to leave, but should be found other employment within the hospital.

Mr. Bullbrook: In case I misunderstood or am too obtuse to understand, would the minister follow up the question of the interpretation of the words “or to continue employment,” as contained in this directive?” And could he assure that profession and, perhaps, the members of this House, therefore, that no registered surgical nurse opting out of these procedures will lose her employment?

Hon. Mr. Miller: Mr. Speaker, I will make sure, first of all, that the Ontario Hospital Association -- which, while it talks to me often, does not talk for me --

Mr. Bullbrook: I understand that quite well.

Hon. Mr. Miller: -- has the same interpretation as the member has placed upon that statement, because if it is interpreting it the way the member is, I certainly wouldn’t be happy about it. I’m not sure that it needs to be interpreted that way.

Mr. Bullbrook: I don’t want to drag this but it’s an extremely important issue in respect to a right of conscientious objection. Would the minister answer for me, if he could, that his ministry would undertake to see that these people in that profession will not lose their employment as a result of the undertakings with respect to their conscience?

Hon. Mr. Miller: Insofar as I am able, I will.

Mr. Speaker: The member for Stormont.

OFFICIAL LANGUAGES IN SCHOOLS

Mr. G. Samis (Stormont): I have a question of the Minister of Education. Is he in agreement with the commissioner of official languages, who suggested yesterday in a TV interview that official languages should be compulsory in all schools in Canada and that the present system makes it too easy for students to drop the second language, especially at the high school level.

Hon. T. L. Wells (Minister of Education): First of all, Mr. Speaker, English is compulsory in the schools of Ontario. As to whether I think French should be compulsory in the schools of Ontario, my answer to that is “no, I don’t think it should be.”

Mr. Samis: Supplementary: Is the minister in agreement with his other suggestion that the emphasis for bilingualism be shifted from the federal government to the provincial level via the education system?

Mr. Breithaupt: He’d better not be, with that point of view.

Hon. Mr. Wells: I would say, Mr. Speaker, if my friend had seen some of the previous comments of Mr. Spicer, that I think he was very complimentary to the things that Ontario had done in this particular area --

Mr. Good: Not last night on television.

Hon. Mr. Wells: He must be talking about some of the other provinces --

Mr. Samis: He didn’t put Ontario on the same level as New Brunswick.

Hon. Mr. Wells: -- and I’m not so sure that his record with the public service of Canada is such that it would commend him to recommend to us what we should do.

Mr. Lewis: That was a nasty little touch, but it made the minister’s point -- like a little shiv between Keith Spicer’s shoulder blades.

Mr. Cassidy: It wasn’t called for.

Mr. Lewis: Who will defend Keith Spicer in this House?

Mr. Speaker: Order, please. The member for Grey-Bruce has an important question.

ONTARIO LOTTERY

Mr. Sargent: Mr. Speaker, knowing your desire for tight, brief, concise questions, I have a threefold question of the Minister of Culture and Recreation with regard to the lottery, which we in this party are in favour of, although we are not in favour of another pork barrel if we can stop it.

Knowing the number of unclaimed prizes -- from the last draw there are still 1,900 out of 3,500 kicking around, or over half -- would the minister advise why the door is open for distributors or why, according to the Attorney General, the distributors are legally entitled to collect this money if they can find these tickets?

Mr. R. G. Hodgson (Victoria-Haliburton): Who wrote this question?

Hon. Mr. Rhodes: The oral question period has expired.

Hon. Mr. Grossman: Brief and concise!

Mr. Sargent: Secondly, regarding the unsold tickets, the system is wrong when unsold tickets can be winners --

Some hon. members: Order, order.

Mr. Speaker: Your question?

Mr. Sargent: Why then --

Mr. G. Nixon (Dovercourt): What’s the question?

Mr. Sargent: Why shouldn’t it be that only people who have paid their money can be entitled to win, as is the case in the Irish Sweepstakes, for instance?

Mr. G. Nixon: What’s wrong with the member?

Mr. Samis: You’ve had 30 minutes to write this out.

Mr. Sargent: Come on, George.

Mr. Leluk: Spit it out.

Mr. Speaker: Order, please. We are wasting time.

Mr. Sargent: Thirdly, in view of the fact that many distributors make twice as much as the Premier --

An hon. member: Question.

Mr. Sargent: -- and, on the basis of 15 per cent or seven per cent net of the take, about $600,000 has been paid to date --

Mr. Speaker: And the question?

Hon. Mr. Rhodes: Isn’t this embarrassing?

Mr. Sargent: -- would the minister advise what is the current rate being paid to them and how many of these high-rollers we have in this deal?

Hon. Mr. Rhodes: The member is an absolute embarrassment to his colleagues.

Mr. Sargent: Very embarrassing.

Mr. Breithaupt: They could double the minister’s salary.

Hon. Mr. Welch: Mr. Speaker, if I could, perhaps I should go through the questions in reverse order. The hon. member for Grey-Bruce will know that at the outset of the establishment of the lottery corporation, the lottery corporation provided me with a list of distributors and a map of Ontario as to how they were divided, and the procedures by which they were appointed.

Hon. Mr. Grossman: Who were they appointed by? That’s the question.

Hon. Mr. Welch: That information was sent to all members of the Legislature, over my signature, some weeks ago.

Mr. Stokes: And he thought it was his new riding boundaries.

Hon. Mr. Grossman: He thinks we should change all the distributors.

Hon. Mr. Welch: A decision with respect to the distribution system was made by the --

Mr. Sargent: How many are there?

Hon. Mr. Welch: There are 37 distributors, I think. That decision was made by the lottery corporation itself; in responding to the request that the first draw be on May 15, they indicated they would like to start with the established distribution system of the Olympic lottery.

Hon. Mr. Grossman: The Liberal opposition wants the minister to change them.

Hon. Mr. Welch: In fact, they interviewed these particular people and others where there were vacancies, made their recommendations to the board and accepted the responsibility for those particular appointments and where they are. As I say, that information was distributed some weeks ago to the hon. member, and the hon. member will know the system, because I’m sure he is familiar with some who in fact made application to that particular board for that particular franchise.

No. 2: As indicated in my statement this afternoon, the commission paid by the lottery corporation to the distributors -- or rather the amount of the discount -- is at present seven per cent. I indicated the board was now reviewing this against the light of experience of the first three draws and soon will be making, it’s my understanding, some announcement with respect to revisions in that particular rate.

Hon. Mr. Grossman: Oh, let’s change the distributors.

Hon. Mr. Welch: No. 3: I think the hon. member is misquoting my colleague, the Attorney General, because I have read the Hansard report of the exchange on Friday. I think the point being made at that time, which I would reiterate this afternoon, is that technically there are no unsold tickets. The transfer from the lottery corporation to the 37 distributors is on a cash basis. They pay for all their tickets.

Mr. Sargent: It’s a credit system and the minister knows that.

Hon. Mr. Grossman: All the member for Grey-Bruce understands is that he can’t --

Mr. Good: Wholesalers should not be handling them.

Interjections by hon. members.

Mr. Speaker: Order, please.

Hon. Mr. Welch: The tickets are sold from the corporation to the distributor at the discounted rate. They are sold from the distributor to the retailer at that discounted rate.

Mr. B. Newman (Windsor-Walkerville): Where does the bank come in?

Hon. Mr. Welch: There is a provision for refunds provided they are turned in within a prescribed period of time in an unopened condition. They then return through the system ultimately to the lottery corporation. The Attorney General was making some reference with respect to that method of sale as between the corporation and the distributor and the retailer. The point which the member does not make and which I feel I could add to his question --

Mr. Sargent: How can they know?

Hon. Mr. Welch: -- is that starting with the next draw, the draw which will be held two weeks from Thursday, there will be no identification on the outside of the envelope with respect to the series number. There will be nothing on the outside of the envelope which will provide anybody with any advantage by knowing what is inside the envelope, at least series-wise.

As members know, we have responded to public demand that even within the envelope itself there be a mix of numbers and series so that now when one buys an envelope one has mixed series and mixed numbers which is something that even the Quebec lottery doesn’t provide for at the moment. I think that is important. There will be really nothing in the way of identification on the outside of the envelope.

May I say finally -- if I have left out anything, I hope the member will tell me -- to make any comparison between this draw and the Irish Sweepstake is very unfortunate. Anybody’s comments about that particular draw -- it’s not really my jurisdiction to talk about that but that is the very point I was trying to make at the beginning.

There are no stubs here. There is no concern on the part of the man who walks into the cigar store and buys his ticket as to whether his stub actually gets into a barrel for purposes of a draw. He has a ticket and a number is going to be drawn. It’s a simplified game which removes the risks as to whether or not stubs do appear. I think we would stand to be very severely criticized for running any type of game where there was the possibility that somebody wouldn’t be able to participate because his stub didn’t get in. The member knows what some of the complaints are not only with respect to that type of draw but other draws one might mention which are on that basis.

A man or a woman buys a ticket; it has a number on it. The numbers are being selected at public functions all over this province. It’s a very simplified way to know whether or not he has won through the system. We think it is a very simplified matter.

Before I complete this matter, if the member for Grey-Bruce quite sincerely and honestly feels that as far as the conduct of the game is concerned there could be any further improvements, any other suggestions, if he would just let me know, I’ll send them to the lottery corporation and ask them to review them. We have a game here which is done in the most objective way possible. It stands the scrutiny of any tests. We set aside a prescribed amount of money for the prize account. It’s there. It has to be there for over a year to provide for claims following which there will be some other draw. How much more can we do?

Mr. Stokes: I am sure glad he made a ministerial statement on this.

Mr. Lewis: That is what is known as quintessential Welch -- the ultimate reasonable man.

Mr. Speaker: Order, please. There is time for one question from the member for High Park.

CANADIAN WORKERS UNION

Mr. M. Shulman (High Park): A question of the Minister of Labour, Mr. Speaker: Inasmuch as the Canadian Workers Union has moved or is moving today a motion before the Supreme Court of Ontario that the head of the Labour Relations Board be arrested, is the minister in a position to make a statement of what in the world is going on with all this nonsense with the Canadian Workers Union?

Hon. J. P. MacBeth (Minister of Labour): Sir, that’s news to me. I saw the chairman of the Labour Relations Board this morning. He was still a free man and I expect he will still be a free man this afternoon. I know nothing about the motion, sir.

Mr. Lewis: He should have stayed with David Lewis’s law firm. He would have been better off.

Mr. Speaker: The time for the question period has expired.

Petitions.

Presenting reports.

Mr. W. Hodgson (York North): Mr. Speaker, I beg leave to table a report of the select committee on company law, on loan and trust corporations.

Mr. Speaker, I do not intend to take a lot of the time of the House in explaining the activities of the committee but they are all listed. Both the members and the activities of the committee for the last year and a half are listed on the first three pages of the report, but I would like to take the opportunity of thanking the members of the committee for the co-operation and excellent attendance during all meetings.

Also, I have some guests in your gallery who have made a major contribution to this report and I would like to name them at this time. Mr. David Harley, counsel; Mr. George Ness, associate counsel; Mr. Erie Brown, Mr. William Potter, and Mr. Tony Hedge, from the Trust Companies Association; Mr. Murray Thompson, Mr. Robert Brewerton and Mr. Harry Terhune from the loan and trust companies division of the Ministry of Consumer and Commercial Relations. Without their help, this report would not have been possible and I would like to thank them on behalf of the committee for the generous giving of their time and their devotion and contribution to the committee.

He is not in the gallery today, but I would also express our thanks to Mr. Peter Held, an accountant from the firm of Dunwoody, and also to Mrs. Frances Nokes, who has been secretary of the committee since 1965, and Miss Sandy Davidson who was associate secretary. There are also other members of the House who made a major contribution at the early part of this committee’s study. They are the members for St. David (Mrs. Scrivener), Haldimand-Norfolk (Mr. Allan), York East (Mr. Meen), and Eglinton.

I would like to express on behalf of the committee the valuable service of the late Gordon Grundy, registrar, rendered to the Province of Ontario and in particular the valued contribution he made to the report we are presenting today. I am sure that every member of this Legislature will join with me in offering our heartfelt sympathy and regrets to Mrs. Grundy on the passing of her husband.

Mr. Speaker, this report contains recommendations that I feel will offer protection and more security for the consumer and also will enable our financial institutions, namely the trust and loan companies, to make a greater contribution to the economy of our province. Mr. Speaker, I regret very much that we have not got enough copies to meet the requests and the demand that there is for these reports, but we hope to meet all those requests in the matter of two weeks.

Mr. Speaker, with these few remarks I once again want to thank the members of the committee of which I had the pleasure of being chairman and we look forward to doing another report on a request that has come from the minister in this last couple of weeks. Thank you very much.

Mr. J. A. Renwick (Riverdale): If I may comment briefly on behalf of my colleague, the member for Lakeshore (Mr. Lawlor) and myself about the report as the representatives of the New Democratic Party sifting on that committee, I echo the remarks which were made by the chairman about the tribute which must be paid to those in the gallery who contributed so significantly to the work of the committee.

I would comment that this is the fifth report of the select committee on corporation law and all of those reports are significant reports. Many of them have found their way into legislation already and I’m quite certain that a substantial number of the recommendations which are made in this report will find their way into legislation.

I particularly would draw the attention of the ministry, of course, to the significant recommendation and problem with which we tried to deal as set out in chapter nine of the report dealing with the administration of estates and trusts. I trust that the ministry will attend to that recommendation and perhaps take steps to move promptly to carry out the study which is required in the field of the administration of the small- and medium-sized estates, which is a significant problem.

I expect and anticipate that either in the next Parliament or this Parliament if it continues the ministry would see fit to permit the committee to be reappointed to carry on the remainder of the work which was set out 10 years ago, mainly the field of the insurance companies and the fields related to the winding up of corporations and the field with respect to corporations without share capital. When those matters are attended to and a number of miscellaneous matters are concluded, the work of the committee which set out on this long road 10 years ago will be completed and will have made a substantial contribution to the laws of the province.

Mr. Speaker: Motions.

Introduction of bills.

LABOUR RELATIONS AMENDMENT ACT

Mr. Samis moves first reading of bill intituled, An Act to amend the Labour Relations Act.

Motion agreed to; first reading of the bill.

Mr. Samis: The purpose of this bill, Mr. Speaker, is to allow union certification at 50 per cent instead of the present 65 per cent figure.

LABOUR RELATIONS AMENDMENT ACT

Mr. Samis moves first reading of bill intituled, An Act to amend the Labour Relations Act.

Motion agreed to; first reading of the bill.

Mr. Samis: The purpose of this bill, Mr. Speaker, is to allow people in middle management and private security guards the right to join an association or a union of their own choice.

Mr. Speaker: Before the orders of the day, I should inform the members that on Thursday last the member for Rainy River (Mr. Reid) raised what he considered to be a point of order with respect to a ruling by the vice-chairman of the procedural affairs committee while considering estimates.

I must again remind the House that there is no procedure for appealing the ruling of a committee chairman to the Speaker of the House. The only appeal is to the committee. In the present instance, I understand that this appeal was taken and the chairman’s ruling sustained.

There is no procedure for an individual member to bring a matter from a committee to the House. When a report of a committee has been properly presented, it is then open for consideration by the House but this is the only procedure.

However, in an effort to be as helpful as possible and to minimize such problems in the future, I will undertake to study very carefully the whole debate that took place in the committee considering the estimates of the Office of the Assembly and discuss the matter thoroughly with the Board of Internal Economy in an effort to provide some reasonable procedure.

This, I might add, will include the matter raised by the member for Scarborough West after the first matter had been raised.

Orders of the day.

Clerk of the House: The third order, House in committee of the whole.

FAMILY LAW REFORM ACT (CONTINUED)

House in committee on Bill 75, An Act to reform certain Laws founded upon Marital or Family Relationships.

Mr. Chairman: We were on subsection 3 of section 1 when we adjourned.

Mr. J. A. Renwick (Riverdale): Yes, Mr. Chairman. I return to the debate refreshed after a weekend away from the Attorney General.

Hon. J. T. Clement (Provincial Secretary for Justice): Surely he is tired.

Mr. E. J. Bounsall (Windsor West): That should have tired him out.

On section 1:

Mr. Renwick: It has been interminable. I think the Provincial Secretary for Justice’s estimates were called some time early in 1971. I think my colleague, the member for Lakeshore (Mr. Lawlor), and myself feel we have been talking to the Attorney General for months, either on his estimates or on his bills.

On item (c), I want to try to be somewhat clearer than I was on Friday about my concerns about that section. I would appreciate it if the Attorney General would confirm my understandings. I understand that item (c) of subsection 3 of section 1 is designated in a very indirect way to state in our law the effect of the dissenting judgement, of Mr. Justice Laskin, as he then was, in the Murdoch case. That is my first understanding.

My second understanding is that this section of itself does not have a bearing upon the question of the matrimonial home. While one can read this section to indicate that it refers to any kind of property, regardless of whether it can be within the description “matrimonial home” or not, that it is the intention to have separate legislation dealing with the matrimonial home. However, as I read item (c) of subsection 3 of section 1, it applies to any kind of property in which there has been work expended as well as money or money’s worth. That is the second matter I would like clarification on.

The third matter I would like some clarification on is that it is irrelevant as to whether or not the property was in the name of one of the spouses or in the name of both spouses under some holding of joint tenancy, either a tenancy in common, or a joint tenancy. Those are my first three points. Then I want to come back to the problem of work valuation which is required under this section as I understand it.

Hon. Mr. Clement: Mr. Chairman, in the same section of the predecessor of this bill which was tendered by the then Attorney General in June, 1974, instead of using the word “property” it used the word “business” and then expanded that so it read “of a business including a farm.” It became apparent to us, after receiving briefs over the summer months and last fall and earlier this spring, that the matrimonial home in all probability would not be included in the definition in that Bill 117, the predecessor bill.

It was changed therefore to the word “property,” which, of course, would include the matrimonial home or a farm. There is no question certainly in my mind about that. It was put there to do the very thing that we hoped the bill at this stage in time would do; that is, give protection to those who required protection because of money’s worth and finances and work that they had contributed to the acquisition of that property.

Mr. Justice Laskin in his Murdoch judgement, touched on by the member briefly today and a little more fully last Friday during the debate, set forth some of his concerns. It is our hope that the draft now before the House sitting here in committee will relieve him of those concerns -- let’s put it that way. The intention of the ministry is to proceed to the next stage in followup legislation. As I have indicated it will be an ongoing programme of legislation dealing with family assets and might well have a specific section dealing with the matrimonial home. I don’t wish this construed as an undertaking to deal with it specifically, because it may well be the impression of my law officers that the subsection we’re now debating might well cover that.

The member has touched on a jointly-held piece of property. That is where spouses buy property and hold it as joint tenants and not as tenants in common. If you will turn to subsection (d) which immediately follows, we look at the presumption of advancement being abolished and in its place we apply a presumption of a resulting trust. It would deal with that sort of situation. Standing here looking at the section, I wonder if subsection (c), the matter presently before us, in the wording, “except as agreed between them” might indicate a specific intention that it’s to be held equally in spite of the contribution of either side to the acquisition of that home.

Under the present law, I suppose that where the gift is transferred or where the man, let’s say, uses his acquired dollars to buy a jointly-held piece of real estate, be it the matrimonial home or otherwise, you have the present situation of the presumption of the gift passing from the husband to the wife; that is, half of the interest of the equity in that piece of realty; that presumption runs in her favour. If the situation is reversed, as I understand the law -- to simplify it -- it is a presumption of a resulting trust flowing from the female spouse to the male. Subsection (d) is an attempt to clarify this.

Subsection (c), as I understand it, really is a discretionary section in the Act to allow the judge to inquire and to make his determination. When we left the debate on Friday last, I recollect the member for Riverdale suggesting that perhaps we should have guidelines either in the legislation or probably in the regulations to assist the judge in exercising that discretion. It would seem to me he might be a little bit too hooped or constricted if it was laid down just as a simple formula because there are findings of fact which he must make after hearing the evidence as to the amount of the work or the money’s worth, the value, he has to apply to it.

It would seem to me when you get into the situation of the husband having gone to work each day of his working life while the wife has stayed home and played the role of the homemaker and assisted in the raising of the children and maintaining the home -- maintenance of the home insofar as the cleaning and this sort of thing is concerned -- doing those duties so common to a homemaker, the judge in that situation -- I recall discussing this with the member the other day -- I would think, would probably say, “In the absence of anything to the contrary I can’t see anything more equitable than to split it 50-50,” unless the weight of evidence was such that he couldn’t come to that conclusion. I don’t feel he should be fettered by some kind of a formula devised here at Queen’s Park which gives an equivalent percentage for a certain type of work which is to be applied against the whole value of the property, when dealing with one of these applications.

I think those are the only comments I have at this particular time with reference to this section.

Mr. Renwick: Mr. Chairman, I want to pursue it somewhat further. I think we’ve got to clearly understand that the Murdoch case did not solve the problem. Even if the dissenting judgement had been the judgement of the court, the court did not indicate and the dissenting judgement did not indicate as to the basis upon which the decision would be made as to the value to be attributed to the work which, in that particular case, Mrs. Murdoch had put into the ranching business which she and her husband had spent their time developing and improving.

Indeed, the dissenting judgement said that it wasn’t a resulting trust; it said it was a constructive trust. If we’re talking about implementing in our law the dissenting judgement in the Murdoch case, the dissenting judgement simply stated that there would have been unjust enrichment of Mr. Murdoch, and it would have been referred back to the court to determine the extent of the unjust enrichment at the expense of Mrs. Murdoch and the work which she had done in the business.

I don’t think that we really will have problems in the future about people who are (a) knowledgeable and, (b) relatively wealthy, who bring into a marriage or during the course of a marriage develop a substantial equity, in a property sense, in the marriage relationship. Those people, as I tried to say, will consult lawyers, they’ll consult accountants, whatever accounting has to be done will be done, and that is not a problem which we in this Legislature need worry ourselves about, except to provide that people can agree. What we’re really concerned about is the normal relationship which has its inception in a marriage between relatively young people without any significant assets on the part of either spouse and who, in the course of the time when they are married, build up an equity interest.

It seems to me that the law in those cases, subject always to whatever other agreement they want to make, is going to have to say, “In the absence of agreement the economic equity in the marriage is 50-50.” I don’t think you can ask a court, in any really significant sense -- and the minister himself indicated that he doesn’t believe that’s possible -- to do an accounting and evaluation of work done and labour expended in the marriage relationship, particularly when we’re now clear that this section covers the marital home situation. If I can call it that, the economic equity that is built up during the course of the marriage is, it seems to me, one which the law is going to have to say is a 50-50 one, except as otherwise agreed.

I don’t think it is fair to ask a court to make that kind of valuation. I don’t think it is possible to use the theory of unjust enrichment and value the contribution of one person in order that the other person in the marriage relationship will not be unjustly enriched. I think it’s quite significant that Mr. Justice Laskin, in his dissenting judgement, said very clearly, and I quote:

“No doubt legislative action may be the better way to lay down policies and prescribe conditions under which and the extent to which spouses should share in property acquired by either or both during marriage. But the better way is not the only way, and if the exercise of a traditional jurisdiction by the courts can conduce to equitable sharing, it should not be withheld merely because difficulties in particular cases, and the making of distinctions may result in the slower and perhaps more painful evolution of principle.”

I take it that what Mr. Justice Laskin was saying is that while this language in item (c) of subsection 3 may be apt for the purpose in legal terminology of embedding in the law the principle of the dissenting judgement of Laskin in the Murdoch case, that it does not fulfil what he felt to be the procedures which are necessary. He didn’t say, “Well, legislate into the law a dozen lines and that solves the problem.” He said:

“No doubt, legislative action may be the better way to lay down policies and prescribe conditions under which and the extent to which spouses should share in property acquired by either or both during marriage.”

I don’t think that this bill, and we have no indication about any subsequent bill, because of the disclaimer which the minister himself made, will be forthcoming for the purpose of laying down the policies and principles and the conditions to which reference was made.

In the absence of legislative policies and conditions and a perspective within which certain rules will apply, subject to agreement otherwise by the parties, the court said: “We’ll do it, even though it is extremely difficult.”

The funny thing which has happened by what the government has done is not really to fulfil the legislative demand that Laskin felt was necessary, all the government has done is to really reverse the majority decision of the Supreme Court of Canada and substitute for it the decision of Mr. Justice Laskin. Therefore, the courts are going to have all of the problems of which he was aware and all of the difficulties of which he was aware when he said, “Of course, we’re not in a position here to decide, so the matter will have to be referred back.” He said:

“Having regard to what each put into the various ventures in labour and money, beginning with their hiring out as a couple working for wages, I would declare that the wife is beneficially entitled to an interest in the Brockway property and that the husband is under an obligation as a constructive trustee to convey that interest to her. Rather than fix the size of her interest arbitrarily, I would refer the case back for inquiry and report for that purpose.”

He’s referring it back. Again, I think that, in a sense, this bill is an abdication of what really is required by way of government policy. I think it has got to be firmly stated as the starting principle. Bear in mind that we’re talking about the great majority of married relationships where, as I said earlier, little if any of economic assets are brought into the marriage, but that over the course of time, through the marriage as such, an economic interest or an economic equity is built up in which a decision has to be made as to what the extent of the participation is. I think the principle which has got to be placed into legislation is that, except as otherwise agreed, it shall be considered to be 50-50 until the termination of the marriage as such.

I am in a sense extremely unhappy about this provision. I am extremely unhappy both for the reasons which I have now stated and also because, so far as any ordinary citizen reading this section is concerned, it is just plain gobbledegook. He could never understand what it is designed to say. That is central to the feeling that I have about it. There are any number of variations on the theme but the fundamental principle and the starting point have got to be in legislation, as I have stated it. Then, if there are substantial variations in degree as to the rights of each spouse to assets of the marriage or to the economic equity built up during the course of the marriage, they can go and take independent legal advice, enter into a different agreement with respect to what it's about and vary their relationships; or if it happens to be the situation where one spouse has very substantial assets at the inception of a marriage, then of course there should be a clear statement that those matters are to be brought into account in accordance with an accounting principle for which they will be able to pay and for which they will be able to take professional advice and assistance.

Let me make another point which I think has to be made. It is a strange historic anomaly that in the Province of Ontario of all the provinces of Canada there is no jurisdiction in the court to decree judicial separation. I remember at one time we talked about this at some length in the House. It is purely an historic anomaly; nothing more, nothing less. It is an accident of time. It is an accident of the time 1792 -- when the laws of England came into the province of Upper Canada that the decision with respect to judicial separation was still within the ecclesiastic courts of Great Britain, if my recollection is right. For other reasons, it is within the laws of all of the other provinces, including the Maritime provinces, some of which ante-dated Upper Canada as did Nova Scotia in any event. It is in the laws of all of the western provinces. One of the matters which Mrs. Murdoch was seeking in the first action, which was not a matter being dealt with by the Supreme Court, was a judicial separation.

I think it is time in item (c) of subsection 3 of section 1 that we not leave the great bulk of the situations purely to a divorce or death situation. I don’t think we should just leave it there. Then, as every lawyer has to explain carefully to innumerable clients, when they come before him saying they want a separation, the only separation in Ontario apart from divorce is if the two parties agree to sign a contract, making them separate.

Hon. Mr. Clement: They want a legal separation.

Mr. Renwick: Yes, they want a legal separation. We all have to patiently explain that’s only possible if the two parties are prepared to sit down and each one of them is prepared to sign a document and the matter goes out to a lawyer -- or properly done to two lawyers -- and the standard boiler-plate separation agreement with the minor adaptations for the particular case situation is drafted. Then the parties decide whether or not they will sign it and they sign it.

It seems to me in the absence of a judicial separation authority, it’s within the jurisdiction of the Legislature of the Province of Ontario to provide for that kind of separation. It seems to me you would go a long way towards implementing the basic principle of item (c) of subsection 3, or the principle that I enunciated, of an assumption of a 50-50 interest in the economic equity of the marriage. These words, “except as agreed” would not vitiate the operation of item (c) because there are many situations in which the first important step is to negotiate the separation as to property. Of course, the moment that’s done and the moment there’s a separation agreement, this no longer adds or operates and if, ultimately at some point in the distant future, an actual divorce takes place, it is unlikely it would ever be varied.

It seems to me to be an additional flaw which I would like to point out. It not only appears to me to be flawed in the conception of not establishing the principle and the policies and the conditions which are to be applied under our legislative scheme but it perpetuates this question of these boiler-plate separation agreements which are prepared and which would be equivalent to the spouse’s opting out of the operation of the legislative statement of the dissenting judgement in the Murdoch case.

I think it is fair to say that after the House rose on Friday, the Attorney General and I exchanged a couple of views on it. I was pleased to hear that he was thinking about something in the nature of a formula somewhat similar to a devolution of estates formula setting out what will be the way in which property will devolve, in the absence of agreement -- as in the case of the devolution of estates in the absence of a will.

That’s why I have swung in my thinking to the proposition, “All right, this is satisfactory for the present time.” But I think that, at some point, without getting involved in the distinction between the marital home and what is not the marital home there should be some kind of statutory formula for the allocation of property in the event of the separation of the spouses.

It should rule out the separation agreement in the traditional sense and I think you should seriously consider conferring jurisdiction to decree judicial separation on the courts in Ontario, the Supreme Court and the county court. I think it’s fully within the jurisdiction of this province because it doesn’t touch upon divorce in the sense of marriage and divorce under the constitution. It touches really upon the power judicially to enforce a separation of two persons who remain married and by virtue of that decree and subject to the statutory formula for the division of the economic equity in the marriage relationship, it would seem to me we would have a reasonably workable scheme.

It would seem to me it would also have the additional advantage of not intruding upon the period of time when the spouses were living together, working together and dividing up the roles or the jobs or the work or whatever you want it to be called which are part and parcel of a marriage relationship in what is becoming, of course, an extremely difficult and very much an economic relationship. Those decisions can continue to be made in whatever way the two people work them out.

I think each spouse has to understand that the moment you enter into the marriage you are embarking upon a 50-50 partnership unless you each take independent advice elsewhere and decide to enter into another agreement, and certainly the independent advice of each spouse is a necessary ingredient of an agreement, because otherwise you would have problems of duress or lack of understanding or undue influence -- perhaps not in any punitive sense, but simply undue influence in the sense that one party might be much more knowledgeable than the other one and property matters than the other one would be.

Perhaps the Attorney General would see fit to comment on those remarks.

Hon. Mr. Clement: Mr. Chairman, starting with the last and moving back through the observations of the member for Riverdale, I am advised that the Ontario Law Reform Commission has considered the question of judicial separation in this jurisdiction, as we know it from reading the English cases, and has advised our ministry that there is some constitutional difficulty with that particular concept but that it will report to us in greater detail in due course. So I’m sorry; I wasn’t aware of that.

I cannot detail what the constitutional difficulty is, although I presume it is something relating to the powers possessed by the ecclesiastical courts and vested in the English courts of equity and law, and perhaps flowing down to us through the British North America Act some 108 years ago. But I will leave that, for the speculation of the hon. member, to await the observations of the Ontario Law Reform Commission.

I think we’ve got to tune in right now on what we’re really trying to do with this subsection (e) that we’re talking about. I’m confident that when the Murdoch decision became public knowledge, sympathy was certainly very, very heavily on the side of Mrs. Murdoch. She had made all of these contributions of her work and talents over an extended number of years for the growth and success of the family farm, which she regarded as the family business. I think generally that’s a conception we all have of that case, and it seems so unfair to us that she could make this contribution and end up finally receiving really no recognition in a tangible form for that contribution.

Subsection 3, with which we’re now dealing, really relates to that type of situation, but can also apply to the matrimonial home if, indeed, the spouse made a contribution in either dollars or money’s worth or work to -- it is all set out there -- the management, maintenance, acquisition, operation and improvement of the specific property. We’re not talking about other property or other assets of the family right now. Let’s talk about the accordance with one or more of those contributions set forth, then she can, regardless of how title is registered, make that known to the judge.

Let’s take the situation where a man owns a home, say under a deed to uses. As I understand the law today, if his wife gave him sufficient funds to pay off the mortgage -- and, of course, because of all those technical things we learned at law school we know that we don’t with the deed to uses; we get a release and reconveyance -- but in any event, he discharges the obligation registered against that title and it would then be vested in him under a deed to uses. He can dispose of it as he sees fit, regardless of the fact that his wife has made a contribution in one form or another. There is no way she can restrain him that I am aware of, barring registering some kind of caution on title or something of this nature, but not in the ordinary day-to-day dealing of that property.

To date, this was the law of the land. It is a property, she could prove a contribution, and that contribution would be recognized if the tests were met under this subsection (c). That could be extended into other areas, where she advanced him money to buy a business and together they worked in that business. But you cannot look at all of the functions that each has done in their respective roles of being husband and wife and try to equate them.

If he was a lawyer, you can’t try to equate his taking a large lawsuit with her babysitting the children for six weeks. You can’t equate those kinds of thing. I don’t know what formula anybody could ever develop that would say one hour of litigation is equal to six hours of babysitting. I mean, that is just ridiculous, and I won’t explore it any further.

Mr. M. Cassidy (Ottawa Centre): Why not?

Mr. Renwick: That is why it has to be distributed 50-50.

Mr. Bounsall: That is why it should be 50-50.

Hon. Mr. Clement: All right: but there are matters that can be more readily identifiable and pinned down. If one contributed money for money’s worth, money’s worth might be in the form of kind and very easily equated into dollars and cents.

So what we are doing here, if this was the law of the land, and Mrs. Murdoch resided in Ontario, Mrs. Murdoch’s contribution would be a very proper matter to be litigated before the courts. I would presume that if she made her case, she would have received out of the farm business or operation recognition for her contribution. If it was a matrimonial home today, and this was the law of the land, the same thing.

But if she made no contribution in terms of work, money’s worth, to the home, if it was not in her name, then she may not be able to claim against that particular asset.

Now, we must distinguish the second type of thing, as I see it in my mind, after acquired assets; that is, assets acquired after the marriage. He is worth $20,000; she is worth $20,000; they get married. Now, the growth of the relative assets may vary and likely would. That type of thing as to the expansion of the after-acquired assets in the marriage will be hopefully dealt with this autumn when we get into the next stage.

I take the view that that is where the function that each has played is much more significant. Because while he is out litigating in the courts and she is kept in the home atmosphere, it might be that 50-50 is the equation. On the other hand, it may not be.

You see, I am torn. I am agonizing whether or not to have a formula winch leaves no jurisdiction or discretion to the judge. I am a little frightened of those inflexible sort of things. It is awfully easy to say 50-50 and, in effect, you are in community of property. I don’t lean in favour of community of property in any way, shape or form -- just to say blindly community of property.

Mr. Renwick: I agree with that.

Hon. Mr. Clement: There are too many inherent risks, even in undertaking an ordinary commercial venture.

Mr. Renwick: That’s right. I agree with that.

Hon. Mr. Clement: I say this not from an emotional point of view, but I say this from a practical point of view -- that it would be a regressive step if we ever have that.

Let’s take the situation where the young couple marry, each contributes the same number of assets in terms of dollars to the marriage. They start their marriage, and let’s say that he, through no fault of his own, maybe is certified mentally incapable because of an injury in a car accident. The wife continues her type of activity and manages herself very well; and he lingers in a mental institution for a number of years and then dies.

I am not saying it is not, but is it equitable that immediately on his death that his family should be able to step in and receive half of the efforts that she has contributed to the growth of their asset portfolio following their marriage? I don’t know the answers to these things and I want to think them out.

I just say it is not as simply resolved as saying, “Oh yes, it is 50-50.” There are multiple problems that have to be looked at and this is why I think that one must lean in favour of certain discretions in the court as opposed to just drawing an arbitrary line legislatively and saying this is how it should be done. That makes it easier for us here in this House, but I think that the hardship it would work on great numbers of people who would be affected by it would just be a horrible situation.

Mr. Cassidy: Spoken like a Tory.

Hon. Mr. Clement: it is not spoken like a Tory at all. You are saying from my example that his family should be able to walk in and take half of her efforts. That’s what you are saying. Is that it?

Mr. Cassidy: You are taking a very rare case and saying that should apply to all cases.

Hon. Mr. Clement: I am not taking a very rare case because I will speak to you privately afterwards and tell you the name of someone known to you whose brother had this very thing happen to him; he was the victim. I tell you that it happened a number of years ago and that man is still alive today and is little better than a vegetable. They have one youngster. The wife has worked and in essence has been the whole family unit. I am not criticizing him, but he has made absolutely no contribution to that marriage because he couldn’t. That wasn’t his fault.

Mr. Cassidy: That’s a rare case.

Hon. Mr. Clement: Yes, but those are the ones that sometimes you find very difficult to reconcile. The Murdoch case might well have been a rare case but it made a very strong point in terms of reaction across this country. I don’t think anyone can readily stand up and say: “To hell with Mrs. Murdoch. She should have had an agreement. She got herself into this tangle.” I don’t think anybody who has thought that one out would ever say that. That, of course, would have been the perfect answer but it simply didn’t happen. We have all become very much aware of the responsibility on us who make the law to see that it doesn’t happen again. This is the reason that the bill is going forward.

Mr. Renwick: Mr. Chairman, may I just pursue a couple of points that are involved in it? The point which I was trying to make is that you have to start from the assumption that it is a 50-50 relationship. It may well be that you don’t do it by a rule of law which provides no leeway. The legal language is quite apt to provide for the kind of flexibility which you may wish to have in such a statute in order to provide the leeway so that a court can vary within the 50-50 presumption of what those relationships should be. Either you can do it by a presumption that it’s 50-50 and then it would be up to either party who wanted to dispute the presumption to raise the minter in the court so it could be dealt with that way or, somewhat more formal than that, you could begin to carve out the exceptions with respect to the situations which bring about a decision as to what that allocation should be.

I am pleading with the ministry to start from an overview, whatever the local language may be. I am just as anxious as anyone to see the element of flexibility which will provide that it is not a straitjacket and that equity can he dealt with during the course of it. But I think the courts should have and are entitled to have that kind of framework from which they start their assessment, because it does concern me.

I am not an expert in the housekeeper cases but that kind of situation usually means a very conservative, in the small “c” sense of the word, valuation about the value of the housekeeper’s service at the time when the owner of the home dies and she appears on the scene to indicate that he promised her that in his will he would leave her such and such a part of his assets and failed to do so and that she comes into court very much on an unjust enrichment or a quantum meruit as to what the value is.

If you leave it without the guidance of an overview of the 50-50 marriage relationship as the starting point from which the court then operates where it is necessary to provide for the equity, you are likely to find judges looking, quite properly, to those areas which they can analogize, and they are likely to start to analogize or at least have some influence on their speaking, on the work aspect as distinct from the money and money’s worth valuation.

Of course, this bill speaks of work, money or money’s worth: and it’s the work part of it which is so difficult to evaluate and where the problems are so difficult in making an adequate value judgement. I think it’s a new field. I really don’t think we have ever thought of it in terms of valuing things called looking after the home; raising the children; taking part-time employment; one spouse having a higher educational qualification and therefore, economically, being able to earn more money than the other spouse; even though each spouse spends the same number of hours per day at their economic chores. For example, there is the person who takes a job in an office as distinct from a spouse who has a particular professional qualification and who, if all goes well, is likely to earn more money.

I think in the legislation the minister has to establish the approach which the court is to take. That’s why I say I tend to be a sceptic. I tend to think that had the dissenting judgement in Murdoch been the judgement of the court -- which is what we are trying to do in the Province of Ontario -- and had it gone back for a report and an evaluation, the value of the work of Mrs. Murdoch -- it’s quite clear there was only a marginal financial contribution by Mrs. Murdoch -- would not have come anywhere close to equalling a 50 per cent interest in what was their joint venture; even though in their case, for practical purposes, all of the actual assets were built up out of the product of the joint efforts of both of them. I think that is a significant and serious problem.

If I may just advert for a moment to the Law Reform Commission’s comment with respect to judicial separation, I didn’t think for one moment there wouldn’t be some kind of an issue on constitutionality raised. I am inclined to think it’s one of those situations in which if every other province in Canada has jurisdiction through historical accident and we don’t have it through historical accident, but in the Province of Ontario we pass the kind of legislation conferring that power on the courts, I don’t think for one single moment we are going to find the constitutionality of it challenged. If it is challenged I am inclined to think it would be upheld.

I don’t think the law works that way -- that the other provinces would have the jurisdiction and we couldn’t devise a method by which we would have the jurisdiction, simply because of the strange historical anomalies involved in the introduction of English law into Upper Canada.

Mr. Chairman: Does the minister want to reply?

Hon. Mr. Clement: I want to make one thing clear; I think I have misled the House; because I was advised by staff about the constitutional problems, I indicated we were going to hear back from the Ontario Law Reform Commission. The policy division of the ministry is taking a look at it right now and we are going to hear back from ourselves, not the Ontario Law Reform Commission. As I understand it they mentioned to us that there are some difficulties here so we will take --

Mr. Renwick: I take it you are seriously considering it then? Would that be putting it too strongly?

Hon. Mr. Clement: It’s an avenue we are exploring.

Mr. Chairman: The member for St. George.

Mrs. M. Campbell (St. George): Mr. Chairman, I have listened with a great deal of interest to this interchange between the minister and the member for Riverdale. I must say that in viewing this section, trying to come to grips with the very problems outlined, as to how a court will really look at the value of the work, if we take the simple case of the wife who is in the home and the husband who is the breadwinner. I don’t know and I worry about how a court would interpret this section with a view to trying to ascertain the value of that contribution. As my friend has suggested, I think of those cases of the housekeeper and the quantum meruit situations.

I also think of a couple of partnership cases that I was unfortunate enough to have to deal with as a lawyer, where it was a restaurant business and where one had the male in this case presumably putting up money and the female running the restaurant. Actually, in those circumstances, because there was no proper partnership agreement again, it was held in the first instance that the business was entirely his as a sole proprietorship and that really she had no claim at all.

It’s this kind of thing that bothers me when we don’t have any way of delineating or of advancing to any of the judges any kind of guidelines for interpreting this section. I am sure that will happen until something is done to change it. I don’t know how you arrive at a 50-50 proposition. I think we could find as many inequities in that as we can in what is before us now. I agree with this, but there has to be some rule and some guideline by which judges can some way interpret the money’s worth of the work performed in the home, if that is what we are talking about.

The other thing that bothers me about this section is that I don’t see that it does provide for the matter of the business. I wondered whether the business was removed from this in order that it should not be considered or whether one is talking about property in that very broad sense. The Attorney General may remember in my opening remarks I discussed the matter of those cases which happen so frequently these days, where a wife does put her husband through the educational process. He becomes, we’ll say, a lawyer; then they separate, usually because he has more sophisticated tastes at that point, and there she is.

Under this section does she have or is she intended to have an interest in that business? If so, is it over and above what she has done in the way of providing financial assistance to him to get his education or would that be deemed to be not only money but money’s worth or effort which would entitle her to something more than just what she put into his education? What about the fact that she has worked in the home at some stage, raised children and then apparently has this other type of contribution? What is her position in that case?

I may say that it is interesting, in speaking to the Attorney General on this, that this woman may have a claim, as he has indicated, in the family court; but in this case, if the husband chooses to go to jail on contempt rather than pay, which is not unusual, the Law Society doesn’t consider this to be a breach of anything whatsoever, and there is no criticism of him if he continues his practice; so that she is completely out.

I’m interested that the Attorney General is so concerned about equity in these cases, as a result of his discussions the other day. I wonder why he is so happy to support that wife and family, as opposed to his concerns about supporting somebody on the domicile situation, which he outlined the other day.

It seems strange to me that when there is some chance for equity for a woman, we always get so awfully concerned that she may get too much or that things may be very difficult. It’s only when she is treated as she was in the Murdoch case, to such inequities, that we get some tiny step forward. I would like to know how we approach this question of the assets of a business, which would be personalty and not realty. I want to know if that is covered. Do you cover both here? Is that what you’re saying?

Hon. Mr. Clement: Yes, we do.

Mrs. Campbell: This is what I wanted to know. In that case then, would she have a claim only for that portion of what she put out in money’s worth in educating him? Would she have any claim over any matrimonial home she gave up during that time? This is the kind of problem a judge will face. It’s not going to be a simple answer or a simple position, because she’s going to have contributed in various areas of that marriage. The husband is also in the same position.

This is why it’s so important that you have some kind of guidelines, or else she is probably going to end up as some poor servant in the relationship, and not as a partner to the marriage in any real sense. I would like to hear the minister on that point.

Hon. Mr. Clement: The proposed legislation is not to construe by statute the relationship of economic partnership to the parties to a marriage.

Mrs. Campbell: That’s the problem with it.

Hon. Mr. Clement: That’s right; only in this sense, if we decide that an economic partnership shall exist for all of the assets, then we should say so, if we want community property; I suppose we’re saying it in a different sense, 50-50 that’s it.

Mrs. Campbell: There are other problems.

Hon. Mr. Clement: There are problems which we have discussed earlier. The member for St. George has wondered whether the young woman who marries the law student or medical student is going to have any interest in him. Let’s just take a look at the section for a minute.

Mrs. Campbell: They didn’t suggest she wouldn’t have an interest in him.

Hon. Mr. Clement: I don’t think you would, because you have to look at what is meant by the word property.

What is property? Property, I am advised, is certainly not defined in this Act and is not defined in the Interpretation Act. It may well be defined in certain other Acts for the purposes of those other specific Acts.

So a judge finds himself looking at this, referring to the common law decisions to see what has, in fact, been held to be property. I am advised that includes realty, moveables and so on; but it does not include a young man or a young woman who is a medical student.

I suppose there are cases that even would include a human being in the definition of property, but those probably antedated the abolition of slavery; so we won’t deal with those today.

We’re forgetting the part about there being an agreement to the contrary, because if there’s an agreement to the contrary, well then we’re not concerned about it.

All right. The judge who’s adjudicating this section looks at subsection 2 first and says: “A married person has and shall be accorded legal capacity for all purposes and in all respects as if such a person were an unmarried person.” He says; “I am not going to be cowed by the interpretation of their lawful relationship of husband and wife so I will forget that. I don’t have to look at that at all.” Then he looks at subsection 3, and we forget about the agreement, so he says: “Where a husband or wife contributes work, money or money’s worth in respect of the acquisition, management, maintenance, operation or improvement of a property in which the other has or had a property interest, they are really being dealt with as strangers.” The reason that is there is so that again we are not misled by the relationship of husband and wife and so on. The wife, if she was the one making the clam under that section, I think, would have to demonstrate to the court that what she seeks to be recognized is, in fact, in law, a property. If it was a piece of real state, a matrimonial home or something, that’s trite, there is no problem, or a business.

Mrs. Campbell: Or a business?

Hon Mr. Clement: Or a business. Or, I suppose, it could be a copyright held by the other spouse.

We can go on forever. Now what contribution has the woman made to that home if we are talking that side -- or it could be the reverse; it could be the wife’s home; what contribution has the husband made to the home? Did he build a porch on it? Did he ever put the roof on the house? Did he paint it?

I don’t mean those routine things when he went out and shovelled the snow every winter. I don’t think the court is going to pay any attention to that, but did he make a donation in the form of money or work or money’s worth and all those things set out for the management of the home; for the maintenance of the home; for the improvement; for the operation of it. I think he is going to have to show more than just saying, “I used to pick the litter off the lawn as I walked up each night from work and I want to be recompensed for that.” I don’t think the court is going to pay any attention to that.

The court wants to see a positive donation of one of those things set forth in order that the asset still remains there.

It doesn’t matter, of course, whether it is there at the time the matter is before the court or something acquired beforehand and disposed of beforehand. Say the person had really contributed nothing; say the husband had really contributed nothing and it was an asset the wife acquired prior to her marriage. Why should he get anything? Because what we are really talking about, which seems so difficult to accept in the Murdoch decision, is that someone has been prejudiced. Mrs. Murdoch was prejudiced. She gave all these years of her life and the effort to make the business a success and got nothing out of it.

Mr. R. Haggerty (Welland South): Isn’t any house a business?

Hon. Mr. Clement: I beg your pardon?

Mr. Haggerty: Any home is a business.

Hon. Mr. Clement: Well, all right, it is still covered here so it doesn’t matter. You take the view it’s a business. I don’t know what you do at your house, but in any event it’s a property and it meets the test.

The husband in my example contributed nothing, he didn’t paint it; he didn’t roof it; he didn’t put a verandah on it. He didn't do anything more than, as I say, the routine things -- put the ashes out and this sort of thing. It ends up that he has no interest in that home or is so found by the judge. How has he really been prejudiced; because he didn’t put anything to it?

Let’s talk about strangers; and that makes it a little better. Perhaps it’s a very apt type of thing, because maybe this is the reason the matrimonial relationship has been destroyed.

You have a business and a stranger to you in blood comes along and you are going to sell your farm. We will say there’s the Haggerty farm and you decide to sell it and a fellow says, “You are selling your farm. I think you owe me $3,000.” You say, “What for?” He says, “When you were sick last winter, I used to bring the mail up to the house from down there at the corner”. You say, “Come on?” The guy says, “I am telling you I want some money out of your farm. I hear you are making a profit and I want some money.”

Do you know what you are going to say? “Then sue me. You demonstrate to the court that you contributed something to that farm.” If you have a case in that sense, as a stranger, then of course the same thing would apply in the marriage relationship. So you have really to equate it -- would a stranger doing the same thing as this person did, a stranger in blood, be entitled to share --

Mr. Haggerty: You are gasping for thin air now.

Hon. Mr. Clement: -- in the disposition of that asset? You see now, business partnerships are a little different because there already is a law dealing with business partnerships, the Partnerships Act, which says that in the absence of an agreement to the contrary -- if there is nothing to the contrary -- then business partners shall he deemed to own equal shares. It is set right out in the Act, and that’s another type of thing.

I don’t think that many people going into the marriage relationship, certainly for the first time, will probably have agreements to the contrary. I think they are a bit of a rarity. I have drawn them, but it has always been when one or both of the parties are going into the relationship for the second time and really want to preserve what they have out of their first marriage, usually for the progeny of that first marriage. Each looks after his or her own.

Businesses are the same way. Most people who go into businesses in partnership put their arm around each other as they are in the lawyer’s office -- if they ever get there -- and say: “We don’t need anything because old Charlie and I grew up together, we went all through school, and nothing will ever break up good old Charlie and I.” The law recognizes that and says: “Okay, when you don’t have an agreement then here are the ground rules, you and Charlie are going to be 50-50 partners.”

Hon. A. Grossman (Provincial Secretary for Resources Development): Never has been a love as great as ours.

Hon. Mr. Clement: But you never see it happen a second time around in a partnership, I can tell you. You can hardly get them to sign the agreement because they are so leery -- I am talking about a business partnership now, not a marriage one -- they are so leery if they have been once stung, because good old Charlie often takes off with the bank account, the accounts receivable and anything else, and then the light goes on.

I think people should have that opportunity to not be compelled to go into a partnership agreement in writing. I don’t think we should be forcing people into these things, because we are just forcing them to do something they don’t want. Experience has certainly taught me that people who go into any kind of a partnership would be well advised to have what they really intended at the time reduced into something in writing, because memories do dim, interpretations do vary, and one should always spell out what his or her intentions are, certainly in a business relationship; and perhaps, why not, in a marital relationship. But it doesn’t matter; we can make it compulsory that people have such agreements and it simply is not going to be effective because people won’t do anything about it.

So what I am really saying to the member for St. George is that he or she who alleges an interest in a property will have to prove that they have an interest in it, that they have made a contribution, through one of these things set out, to the enhancement, management, operation and so on, of that particular piece of property.

Mr. Renwick: Mr. Chairman, unfortunately I have to leave in a few minutes and I want to make just one further point about this, and I want to express this as my ultimate scepticism about this section of the bill.

As I ruminated on this bill more and more, I began to realize that it doesn’t deal with the marital home situation and my confusion about the matter. The minister will recall at the beginning of today’s session on this bill I raised the question; indeed, when we come to the section that repeals all of the other sections of the Married Women’s Property Act, except section 12, there is a specific statement in the explanatory note that the question of the interest of husband and wife in marital property is not dealt with in this bill.

Then the minister explained to me the change from Bill 117 to Bill 75, and I began to assess that the language of the section that we are talking about -- that is, item (c) of subsection 3 of section 1 of the bill -- in the use of the term “property” and the elimination of the words “business including farming,” is broad enough to do it.

I think we’re in agreement that this is an attempt to legislate the dissenting judgement of Mr. Justice Laskin into law in the Province of Ontario. I think we’re agreed about that. Then one looks always at what the judge said.

Mr. Justice Laskin said this -- and I want to repeat a portion of what he said and then include another portion of it.

“No doubt, legislative action may be the better way to lay down policies and prescribe conditions under which and the extent to which spouses should share in property acquired by either or both during the marriage.”

I interpolate, this bill doesn’t do that. Somewhere along the line, you’re going to have to do it.

Hon. Mr. Clement: That’s right.

Mr. Renwick: To continue:

“But the better way is not the only way and if the exercise of a traditional jurisdiction by the courts can conduce to equitable sharing, it should not be withheld merely because difficulties in particular cases and the making of distinctions may result in a slower and perhaps more painful evolution of principle.”

Well, I would interpolate again that what you are legislating into existence is a slower and perhaps more painful evolution of principle unless you deal with it by legislation.

Then he goes on:

“A court with equitable jurisdiction is on solid ground in translating into money’s worth a contribution of labour by one spouse or the acquisition of property taken in the name of the other, especially when such labour is not simply housekeeping which might be said to be merely a reflection of the marriage bond.”

I emphasize those last words of that section. Mr. Justice Laskin is saying that this isn’t the housekeeping marriage situation -- the bringing up of children, the contribution to the home. This isn’t what Mr. Justice Laskin is dealing with. I emphasize the words: “ ... especially when such labour is not simply housekeeping which might be said to be merely a reflection of the marriage bond.” Then he goes on: “It is unnecessary in such a situation to invoke present-day thinking as to the coequality of the spouses….” I repeat: “It is unnecessary in such a situation to invoke present-day thinking” -- not law, but thinking, attitudes of present-day reflection upon the equality of spouses.

“It is unnecessary in such a situation [that is, the situation with which he is dealing] to invoke present-day thinking as to the co-equality of the spouses to support an apportionment in favour of the wife. It can be grounded on known principles whose adaptability has in other situations been certified by this court.”

So he is saying: “I’m dealing with it not because they’re spouses, not because they’re spouses at all.” And to emphasize what I’m saying, he himself goes on to say: “This court is not being asked in this case to declare an interest in the appellant merely because she is a wife and a mother.” And then he goes on: “Nor is there any implicit plea for community of property regime to be introduced by judicial fiat,” and so on and so forth.

If one reads those two paragraphs at page 385 of the Supreme Court of Canada reports on the Murdoch case in 41 Dominion Law Reports, third edition, at page 385, you will see the one sentence and the one clause by which Mr. Justice Laskin says: “I am not dealing with a marital situation.” I repeat the one clause: “ ... especially when such labour is not simply housekeeping which might be said to be merely a reflection of the marriage bond;” and the next portion of the sentence: “It is unnecessary in such a situation to invoke present-day thinking as to the co-equality of the spouses.”

Then he goes on to say: “This court is not being asked in this case to declare an interest in the appellant merely because she is a wife and mother.”

When I said that this is my ultimate scepticism about the clause which you have inserted, I find it difficult to think that we are in item (c) of subsection 3 of section 1 dealing with An Act to reform certain Laws founded upon Marital or Family Relationships.

I think if one reads Mr. Justice Laskin in entirety with what he tried to say and his striving under the doctrine of constructive trust and the doctrine of unjust enrichment, one will see that he was not dealing with that relationship. The strange thing and the strange scepticism which I have about it is that, in the negative way it is expressed, this leaves it entirely open to the court in the Province of Ontario, should a question come up requiring this kind of decision, not with respect to some business venture that they’ve been involved in or some farming operation, or as it was in the Murdoch case a ranching operation, but the simple, normal, everyday, type of marital relationship where the partners to it, one way or another, apportion the chores of the married life and the earnings of enough money for the family unit or the marital unit to survive and the investment of whatever surplus there may be, the development of some kind of economic equity in their assets, either through their own efforts or through the dollar appreciation of the assets which they acquire, such as has taken place recently.

I would think that a court would be in a position today, reading carefully what was said, simply to say that the negative expression in item (c) of subsection 3 of legislating into law Mr. Justice Laski’s dissenting opinion on the most constrained basis possible was not an endeavour by this Legislature to deal with the marital relationship.

If that’s so, if there is any validity to the proposition which I put, because of what Mr. Justice Laskin said, I want to emphasize to the ministry that they have simply got to deal with the everyday marital relationship. They’ve got to deal with it on the assumption that whatever the accounting is for assets brought into the marriage relationship, or whatever the accounting must be for assets which one or the other spouse may inherit through their family during the course of the marriage relationship, or whatever the disposition may be at the time of death, which can be covered by a will or by the Devolution of Estates Act, within that general framework the spouses have got to understand that the economic equity which they are building up over the course of their married relationship or the economic liabilities that they are incurring during those relationships are presumed to be in law 50-50.

If they want to bury it or get their own independent advice or go and do whatever else they want to do, that is fine. But the regular type of marriage -- the one which covers most of the cases -- should not hinge upon in whose name the property is held, whether it is under a deed to uses, whether it’s a joint tenancy or a tenancy in common or whether all the assets are invested in one person’s name.

Those things within the kind of relationship which we want to deal with have got to be treated as though they were irrelevant, so that the question doesn’t arise. “Do we take the house in joint names?”, or, “Do we take it in one person’s name?”, or, “Do we take it in the other person’s name?’, or, “Which one is it?”, or, “Should it be a deed to uses or any of the innumerable proprietary schemes?”

I come back to what I say, that the more one explores with the minister, the more one thinks about what is said by Mr. Justice Laskin and the more one believes that one should be very sceptical about thinking that this section deals at all with the marital relationship in the marriage sense. I think the arguments or the submissions which I made on this clause are sufficient to indicate that my scepticism is well founded.

Mr. Chairman: Does the minister wish to reply?

Hon. Mr. Clement: I want to make it clear to the members of the House that at no time do I take the position that subsection 3 is dealing with the marital relationship. I hope I’ve never made that statement to the House because I don’t intend that it be made. The bill deals with property which happens to be owned by two people or which happens to have received contributions from two people who happen to be married; it doesn’t mean the bill is designed to answer wholly the Murdoch case.

I think the member for Riverdale would agree that Mrs. Murdoch, if she had enjoyed the advantage of this type of legislation in the Province of Alberta, would have had some claim --

Mrs. Campbell: Some claim?

Hon. Mr. Clement: I don’t know. She would have had some claim. She would have received a judgement for X number of dollars or thousands of dollars which she did not receive.

Mr. Cassidy: Like an unpaid farm hand.

Hon. Mr. Clement: The Act deals with many other relationships between people who, because they happen to be called man and wife, have certain barriers which have grown up over the years and it deals with that. It deals with prenatal injuries so it isn’t just designed for one thing. It deals with a variety of family relationships which have had certain legal barriers raised because the parties to a certain matter happen to have been married to each other or related in blood to each other.

It’s a step; as I said earlier when I introduced the bill, it’s an ongoing process. This is not the end all and the be all. The supportive role of the parents of parties to a marriage is very important. We know that the matrimonial home, for example, is usually the biggest asset in the marriage. What do you do with that asset when there are those who have claims against it? The wife who makes some kind of contribution à la subsection 3; the children who have a right to be maintained if they are under a certain age or certain disabilities. Those things are going to be the subject of further legislation because I think this House will be dealing with legislation involving family relationships and interspousal relationships for a good number of years.

Mrs. Campbell: Mr. Chairman, I guess the only thing I can say at this point to add to anything which has gone before is that what you have here is a section which, in my view, has been introduced by people who really haven’t been in the courts recently and certainly don’t know the kinds of matters which come before the courts and the ways in which judges have to look at cases.

It’s easy, perhaps, if it is the matrimonial home and you can find out what contribution the wife made, whether it was as babysitter, housekeeper, chauffeur, nurse or whatever, that’s one thing; but where you have a marriage which lasts for a period of time, the kinds of things which go into it as contributions may be going in as contributions to business or going into it as contributions to the matrimonial home. How is a judge going to work that out, except to take into consideration that perhaps this really wasn’t intended to deal with business; perhaps it wasn’t intended to deal with the matrimonial home but it was intended to try to deal with the problems of the Murdoch case and perhaps only applies to the farm? It is almost impossible really to work out from this clause exactly what a judge would look at in trying to assess the work or the value or the money’s worth or whatever in this situation.

Like the member for Riverdale I have the same kind of cynicism about it. It’s not good enough, from my point of view at least, to say we’re going to deal with this in the fall again maybe and maybe we will straighten out some of the bad features of this particular section.

As I said before, we are supporting this bill but it is with that kind of reluctance. Why is it that with all of the people available to this government to draft legislation we get such bad legislation coming through here for our consideration? In this case, I believe the fact is that you didn’t really want to do anything to resolve these problems but rather you wanted to give an appearance of doing something. On this section, I have nothing further to say.

Mr. Cassidy: I would like to comment.

Mr. Chairman: The member for Ottawa Centre.

Mr. Cassidy: Thank you. I just want to speak briefly, Mr. Chairman. I won’t speak in general about the bill but about this particular section. I would like to take the minister up on his own ground. Before I do that, I am sure the minister realizes that I, like the rest of my party, dislike what is being done on this particular section. It is far too little; it is far too constrained.

The minister says that under this section with regard to the matrimonial home that this will give the wife an entitlement. I would like to raise that particular point with him because I think that the language of the section as drafted -- and it is badly drafted -- is ambiguous. Let me give you an example right now. All of us in politics who are males -- most of us, in effect -- can tell our wives to work in the home in order to allow us to practise politics. We have wives who participate in the management, maintenance, operation and improvement of the matrimonial home because, inevitably, most of us aren’t there a lot of the time; we are down here in Toronto. Is that the kind of function which is referred to in this particular section? I would like to know that from the minister? Or is it that the wife must demonstrate that she lifted a paint brush, wielded a hammer or did such things like that in order to qualify under this particular section?

If it is demonstrated that she did participate, is it on a basis of equality or should she get tradesmen rates, which are slightly higher than the rates earned by MPPs, or should she get rather lower rates, the rates that are paid to unskilled labour and to women for women’s work, as has been mentioned, in the Province of Ontario? These kinds of things have not been spelled out by the minister. I think he might try and do it now.

Hon. Mr. Clement: I would prefer your latter interpretation of it. I think you are confusing the function of the party to a marriage in terms contrary to the terms of a contribution in kind, money’s worth, money and all those things set out in subsection 3(c). This is the very point that your colleague, the member for Riverdale and I, were debating at great length on Friday last, as I recall the debate.

One cannot say: “All right, I painted the house and that took me so many hours.” That’s fine; that’s a contribution of work. How do you contrast that to the wife who said: “I never did that sort of thing but I babysat the children within the house”? I say that the courts will take the interpretation that if there was a contribution made to the property -- not as to what went on inside the property but to the property -- the putting on of a roof, the painting of the side of the house, the attaching of a veranda and determine if that met the test in the Act as to the acquisition, the management, the maintenance, the operation or improvement. Looking after the baby in the house didn’t improve the leaky roof. Washing the children or the dog doesn’t really come into the maintenance of the property. I am not being facetious when I say this.

Mr. Cassidy: You sure sound it. You really do. Surely this is really discriminatory.

Hon. Mr. Clement: No, I am not being facetious. Do you want me to try to deal with what you asked? You put it on two basics. Is it the one or the other? I just earlier in detail, I thought, said to your colleague from Riverdale that the contribution has to be to the property -- not to the relationship that exists within the property, but to the property. That is the sort of thing that will be measured by the court on the application of the husband or on the application of the wife. It is just as simple as that. The contribution to the marriage relationship that the parties made within that house or that family unit will be dealt with, and is dealt with, in fact, each and every day in the family, county, district and Supreme Courts of this province.

Mrs. Murdoch, when she took her case, tried to have some financial recognition of the work done on that farm to make the farm a success; that’s what she tried to get paid for and couldn’t. She was really in the same role as the so-called housekeeper type of claim, where the person says: “I worked, believing that I would get some kind of reward at the end of the road.” That’s the kind of claim she made.

This bill tries to clarify all those red herrings which have been drawn across litigation for years, saying, “Well, the claims are a little different if the parties are married to each other.” Because they are married, one cannot sue his wife, or a wife can’t sue a husband, if one happens to be driving a car and the other has an injury. This bill deals with that sort of thing.

There is case law that has been on the books for literally hundreds of years saying a person could not sue for an injury that one received before birth because at the time of the suffering of the injury you weren’t a person in law, and this is really the state we found ourselves in here in Ontario until we were suddenly awakened with the Thalidomide situation which occurred probably 12 or 15 years ago. We have clarified that in the bill.

So I want to make it perfectly clear that I have at no time come forward and said this bill is a constitution for married women of this province. It deals with many facets of family relationships in dealing with family rights -- interspousal and between parent and child and so on.

Now, we have the supportive study and the recommendations completed by the Canadian Law Reform Commission. We are presently assessing those, looking at them and going on to the next stage, which may or may not -- I don’t even know at this stage of the game -- deal specifically with the matrimonial home as a separate unit, and take it out of here and put “except when dealing with the matrimonial home,” and give it its own section or its own Act, but you can’t just bring all these things together because of the very involved nature of a marriage relationship. There are many facets which had to be examined and brought up to date and that’s exactly what we are doing. I have said it 10 times in the last two or three days here; it’s an ongoing process and this is the first step.

Mr. Cassidy: Part of the full maintenance of an office building, without which it becomes impossible to rent it, is the washing and waxing of the floors, the cleaning of the windows, opening the door for workmen coming in to do particular kinds of work and supervising the work to make sure that they keep time and do the work as required. If a wife performs those functions -- that is, she washes the floors, waxes them, cleans the windows and lets workmen in and out and supervises them -- could that qualify under this section in order to give her a claim on the matrimonial home, and if so, what kind of a claim?

Hon. Mr. Clement: To me it would seem logical that that was part of the maintenance of the home and may well be considered by the judge when it comes to this problem.

Mrs. Campbell: It is only if she puts the roof on.

Hon. Mr. Clement: Oh, no, it isn’t restricted -- don’t interpret me literally. You know, I can just see it in the papers tomorrow: “In order for wife to claim, must put roof on house.” Please, I don’t mean that. I use that as an example. If she was involved in the maintenance -- that’s why you mentioned the paint brush -- yes, if she painted, I would think that would be in the maintenance of the home. I would think --

Mrs. Campbell: It might not.

Hon. Mr. Clement: -- that very well might be. If she decided she wanted to paint because she wanted psychedelic colours all over the outside of her house, there might be a dispute on that, but it’s conjecture here in this assembly at this time.

Mr. Cassidy: Since the matrimonial home is the major piece of property which we are talking about, this is another area where this whole thing is so desperately unfair. The wife’s major claim may well in fact amount to those normal maintenance activities, and then, given the fact that there are often disputes between husband and wife in these cases anyway, does the wife have to come in and say: “Well, over the last 15 years I have spent an average of 15 hours a week dusting and cleaning and waxing. Of that time, so much was devoted to the furniture and the fittings of the house, which doesn’t count, and so much was devoted to the fabric of the house, which does count. On these particular five occasions I devoted these many hours to painting.” It is a ridiculous kind of way of treating it, and this is why we are so upset with your proceeding --

Hon. Mr. Clement: Tell me what you suggest.

Mr. Cassidy: The member for Riverdale has already suggested that the rule should be a basic splitting of the matrimonial property. The question that you raised about the rare exceptions -- I am not sure in my mind whether a judge should have the power to vary the basic 50-50 split under exceptional circumstances. Quite possibly he should. But you are taking the exceptional cases and saying that because those exceptional cases exist, therefore no wife or husband shall be able to benefit from a basic equality of property.

What we are saying is that there should be a basic equality of property and then we should discuss whether or not there should be exceptions that would be adjudicated by the judge. That’s a pretty fundamental difference, it seems to me. But I think that you should be able to make that step now, since the matrimonial property is the major part of the property. If you wanted to start off with the matrimonial property and then look into matters of the business and things like that, that is a possible series of steps. But this is so retrograde as to be completely useless.

Hon. Mr. Clement: All right. Thank you for your confidence, which is always expressed in your usual diplomatic style. I just tell you this: You can’t just draw the 50-50 line and say that is what the law of the province is going to be tomorrow, and we will let the odd exceptional case fail by the wayside.

Mr. Cassidy: No. You have got the courts for that.

Hon. Mr. Clement: Because if you are talking about the wife maintaining the home in terms of waxing and cleaning -- to me that would be perfectly logical that that certainly contributed to the maintenance of the home and the upkeep.

I just say that I would have more confidence in a judge making a judgement call on hearing the evidence than I would on a judge being forced to make a call that really doesn’t take any of his judgement on a 50-50 slice right down the centre on the basis that this was equity, because it may well not be.

Here is what is going to happen. In the first place, we are talking about an asset, the matrimonial home, that is registered we will say in the husband’s name. Because if it is registered in both their names, they are not going to get into this hassle too much. Or if it is in her name, why is she going to bother going to court?

So, now they have a piece of matrimonial home or a piece of real estate on which their matrimonial home is located and registered in his name, and she wants to have a claim on that home. She may well base her claim on the fact that she made a contribution in the form of waxing and cleaning and the sort of things we have been discussing. He equally might say, “I contributed the same amount of time; I maintained it. While she was waxing I was painting; I was cutting the grass; I was keeping it up.”

At the conclusion of that, the judge may well come to the impression that they both worked pretty well equally on this thing, and he may well say 50-50; and that’s fine. But I think the court should have the discretion.

You are saying that we in here are wiser than the courts in making these calls. And this is where you and I lock horns, because I don’t think that we are. We are talking in generalities more or less in here; while the court is dealing in individual, specific Mrs. Murdochs and Mr. Murdochs, who are standing before them. And the circumstances just don’t fall into different prearranged buckets. It is different because you are dealing with people, and all people are different.

Mr. Cassidy: The courts are essentially conservative, Mr. Chairman. In a very cautious kind of sense they are going to say: “Here is a $50,000 home which is in his name, the husband’s name -- he owns it. Now what are the mitigating circumstances, since we don’t have to treat them as being husband and wife, under which she should have a claim?” The mitigating circumstances are that she has, over the last few years, contributed 15 hours a week of dusting, waxing and polishing.

Then the court will go on and say: “But that kind of work has only been worth about $2 an hour, or $30 a week; and much of that was offset by the fact that he cut the grass and painted the eaves. Anyway, they shared it and she had the benefit of it. Therefore, we will give her $5,000 for her share. Because, essentially, he owns it and she just has a little piece of it because of some work that she may have done to it; and that’s all.” Whereas, what you ought to be doing is saying the basic shares are 50-50; if the house is paid for, that is $25,000 apiece.

Now, under mitigating circumstances, he was a ne’er-do-well who never did a damn thing around the place. She essentially paid the mortgage out of her egg money. Or on the other hand, she was a ne’er-do-well who never did anything around the place, was a wastrel, was seldom around the place, left him all the responsibilities of paying, looking after, doing everything else connected with the house, and the other marital obligations.

Therefore the 50-50 rule is not particularly fair in that case. Although the basic rule is 50-50, it was a marriage that was barely consummated. It was a six-month thing. She was in and out of his life in that period of time and no more, or vice versa.

Those are the kinds of mitigating circumstances I am sure the courts can look at quite fairly. But, if you side with property first, you will not be fair to the women who are almost invariably discriminated against in these cases.

Hon. Mr. Clement: Mr. Chairman, one thing the hon. member is, I think, overlooking, and probably it’s the most critical issue before us, is the children of the marriage.

Mr. Bounsall: Oh, again.

Hon. Mr. Clement: What about the children of the marriage? Forget mom and dad and waxing and washing. Who is going to look after them? Invariably the matrimonial home is the major assets of a marriage. Maybe there should be some looking in the door on behalf of the children. Forget about mom and dad for a moment. Presumably they are free, white and 21, and can look after themselves.

Mrs. Campbell: They don’t even look after that.

Mr. Cassidy: The courts don’t look after that now.

Hon. Mr. Clement: No, but that’s why you cannot just draw a line down the centre and say 50-50 is it.

Mr. Bounsall: You don’t want to, that’s all.

Hon. Mr. Clement: You have to see how the supportive role of the parent is fitted into this thing to deal with likely the most major asset in the marriage. That’s why we have to have the recommendations of the Ontario Law Reform Commission.

Mrs. Campbell: You don’t.

Hon. Mr. Clement: We have them. We had them within a day or two after we introduced the bill. We are studying them now. You cannot look at these things piecemeal as you have suggested. I say that with the greatest of respect.

Mrs. Campbell: You are --

Mr. Bounsall: You are responsible.

Mr. Cassidy: You are not the one who is looking after --

Hon. Mr. Clement: No, you cannot --

Interjections by hon. members.

Hon. Mr. Clement: You cannot draw your 50-50 line down the centre and say, “That’s the matrimonial home out of the way. Let’s go on to the family business.” You may run into the situation where the family business is much more substantial than the matrimonial home. I say you have to look at it all. This is the first step.

Mr. Cassidy: You guys are unbelievable. The sexism that comes through your party stops you from looking at any particular case.

Mr. Chairman: Order.

Hon. Mr. Clement: Mr. Chairman, with the greatest of respect, I am trying seriously to debate this thing. The member for Ottawa Centre somehow takes exception, or takes the idea he has everything garnered in his own camp. I am willing to listen --

Mr. Bounsall: He is not saying anything that isn’t true.

Hon. Mr. Clement: -- to suggestions, but I tell you we have thought these things over. I am not saying we have the corner on brains. I just point out that you may create a worse problem by drawing the line down the centre.

Hon. Mr. Grossman: It just happens that way.

Mr. Cassidy: Try.

Mr. Chairman: The member for Windsor West.

Mr. Bounsall: Mr. Chairman, I find the minister’s comments, as he tries to defend what he has written in subsection 3(c) contradictory, to say the least. I don’t know whether the minister has not come to grips with this legislation or, in fact, has, and is trying to defend the particular piece of legislation which the government has foisted on him. Whenever they get close to delineating the difference between what we in the opposition and in this party see in this bill and what you have in this bill, you start bringing in the red herrings about how you can’t do anything in this particular sense, because the kiddies are going to have to be involved in the discussion of section 1(3)(c), and so on, and so forth.

Hon. Mr. Clement: With a matrimonial home, specifically.

Mr. Bounsall: They don’t need to be involved in the terms of how the property, upon the dissolution of a marriage, should be divided. The minister has talked on, and on. Whenever we get close, he changes ground.

Let me say, at this point, apart from the general principle of equal sharing, and equal division, what bothers me most is the minister saying, when he gets caught, “This is going to be the first of a series of steps. This is going to be an ongoing process. There are going to be changes in this area with time,” and you imply fairly soon. You are going to keep the whole situation of marital and family relationships in the division of property upon the dissolution of that marriage completely up in the air until you get definitive legislation.

If this is supposed to be the first step of a series of ongoing steps, what this in essence does is stopper any decision until the next step comes. And that won’t be a definitive step. It will be as wishy-washy as the wording in section 1(3)(c) again, and that will prevent any definitive decisions being arrived at or decisions based on what is very inadequate and unclear wording in the bill.

The minister gets up and he says what he feels may well happen. The minister comes close to saying, or in fact says, that he thinks it may be reasonable in a division of property upon the dissolution that it should be 50-50. We say this is what it should be, but the minister starts bringing in various items such as not wanting to get into counting babysitting. It is the minister who has got into that counting by not making it clear that there should be an equal division. Whenever we get him to the point where he seems to realize that, he says: “Hold it now. I can think of an extenuating circumstance in which that equal division should not apply.”

You can write an extenuation circumstances clause into the bill, into this very section that should be dealing with 50-50 division, to take care of the one spouse who gets clobbered in a car accident and lives on for years in a state that they can’t contribute to anything or who is a vegetable. That would be taken by any court to fall under the category of extenuating circumstance. But write that extenuating circumstance phrase into the very bill to allow for that and you then proceed to have your 50-50 division.

The bill, I might say at this point, Mr. Chairman, has in its very title marital and family relationships, yet the minister stands up here no more than 10 minutes ago and says we can’t get into those relationships that are occurring inside the piece of property. Then what the heck is this name doing on this bill at all in this form? You are not coming to grips at all with marital or family relationships as is in the title in this bill. You are not coming to grips either with how the division of the property should equitably be made. I intend to have a few more remarks on this section, Mr. Chairman, after I put the amendment which I would like to make.

Mr. Bounsall moves that section 1(3)(c), be amended by adding thereto:

“In the absence of extreme and extenuating circumstances, the division of assets and property shall be 50-50 between the spouse and the valuation period shall include one year immediately prior to the commencement of an action for nullity or divorce.”

Mrs. Campbell: Mr. Chairman, would it be possible for us to get a copy of it? I’m not following what it is.

Mr. Bounsall: I’ll give you my copy.

Mrs. Campbell: Thank you.

Mr. Chairman: Does the member for Windsor West want to speak on the amendment before it is put?

Mr. Bounsall: Yes, Mr. Chairman. I would hope that the members of this House and the minister, if he’s being at all serious about reaching a satisfactory conclusion which will stand for some time in this area about the division of property, would accept this amendment.

The minister talks about the extenuating circumstances. The amendment includes the extreme and extenuating circumstances which the minister has talked about which allow the judge to use his discretion, if it can be argued and proven to his satisfaction that there are extenuating circumstances that would and should not permit the 50-50 division between the spouses for all assets and property.

Anything short of a 50-50 division, except for these extenuating circumstances, means that you are going to get into the very thing which you accuse us, through your examples, of our proposing and your not wanting to get into: That is, what contribution to the marital and family relationship should be given to the babysitting, to the taking of messages at home or to the supervision of work that is performed around that marital home.

What you are really saying, by not spelling it out as a 50-50 division, is that the woman is always going to have to prove an actual money or money’s-worth contribution to that particular home in which they live, let alone the other property and assets which they have acquired jointly between them, before it’s going to be considered at all. Every other contribution of hers goes for nought.

You’ve made it very, very clear in your remarks that the normal working around that home -- that is, babysitting the children; and you can extend that on into cooking of the meals, the washing and so on -- doesn’t add one whit of value to the property which one defines as the marital home. You’ve made it very clear that that is not going to be taken into account by the courts, as you see it, in this totalling of the assets.

In terms of family relationships, this is where your party and our party differ with respect to how the woman in particular in that relationship should be treated. By saying “the woman in particular,” I am not implying that there aren’t instances where it is the man who stays home. I know of one case where a friend of mine --

Hon. Mr. Grossman: You are being sexist now.

Mr. Bounsall: -- the man stays home and does exactly what is considered to be traditionally the role of the woman, while the woman is a department head in a high school and earns the kind of salary commensurate with that position. Very clearly, those roles are directly the reverse of the traditional ones.

But the general case we are speaking of is the traditional situation in which the woman is left in the home to do the washing of the clothes, the dog and the kids, to use your terms, and the cooking of the meals, and the babysitting of the dog and the children -- and none of that effectively can be taken into account in any division of that property because she has not wielded a paint brush or supervised the wielding of the paint brush.

That is the kind of contribution which should be recognized and can only be recognized effectively by putting right in the bill that there should be a 50-50 division of that property upon dissolution. This is the principle we would like to see and that I put forward in the amendment. If you want to make it clearer by saying it’s the property and assets that they in their separate legal personality have acquired since marriage, that would be quite acceptable too, but in order that it be clear in section 1(3)(c) that we are talking about a 50-50 division, then this is the wording which would cover that.

I have added an additional phrase at the end to the effect -- I don’t have my copy now at the moment --

Mrs. Campbell: Evaluation period.

Mr. Bounsall: Yes. I am concerned, in terms of assets and property, that if one is contemplating this beforehand that, upon the dissolution of marriage, one can in fact convert one’s assets to cash or take one’s cash assets and in fact give them away to a third party prior to the commencement of the action for a divorce.

I think that we must have in this section, which talks about a 50-50 division, some safeguard to protect for the spouse who is not wanting to leave the marriage what would be joint assets of the two of them upon dissolution. There must be a safeguard against some of those assets being given away to a third party. So if you have a year prior to when the action commences, those assets and property held during that year would be brought into the division. This is at least some sort of a safeguard against the complete giving away of assets and property to a third party.

I say to the minister through you, Mr. Chains-man, that as I have sat here and listened, to virtually every objection or every point we bring up, the minister has another point which does not directly speak to the problem proposed by section 1(3) (c) -- that problem being what is a fair division of property. The only way we can see a fair division of property is for that property which has been acquired to be divided into their separate legal identities. We have no argument with you on the community of property idea but upon dissolution those properties and assets should be divided equally.

Mr. Chairman, I suspect from his remarks there is no way in which the minister can or is willing to accept an amendment which talks about the equal division of property upon the dissolution of a marriage. He has proved it by his statements time and time here. He gets into arguments such as we are really talking about community of property during a marriage and if we are going to split it equally after the dissolution. That’s not what we are saying. I am going to make this very clear.

We have no argument with the first two subsections of the bill which talk about the legal separation while married but when there comes a dissolution, we are saying the assets, however acquired or in what proportions by either, should be divided equally between them because that is the only fair way. That is the only fair way of taking into account those other things such as the washing of the joint dog; such as the washing of the joint kids --

Hon. Mr. Grossman: Kids have to be joint.

Mr. Bounsall: -- or any children which perhaps are not joint but which the other spouse has agreed to accept into his or her house. That’s the only way that contribution can be recognized as being anything but absolutely zero.

Anything which the minister does not bring in to section 1(3) (c) to see that property division should be equal, simply means the minister is quite content to see decisions by the judiciary in this province come forward only on the basis of actually counting and actually putting a valuation on work associated directly with the property owned by either of the spouses in the marriage and takes not into account at all any of the services not related to property which either or both of the spouses contribute to that marriage situation, in spite of the bill purporting to be a bill dealing with marital and family relationships.

Mr. Chairman: Does any other member want to speak on the amendment prior to the minister?

Mrs. Campbell: Yes, Mr. Chairman.

Mr. Chairman: The member for St. George.

Mrs. -Campbell: Mr. Chairman, I have some difficulties with this. I suppose I have to bring to bear my own experience in the law, such as it is, on this type of phraseology which is before us. I think it would be very difficult to test extreme extenuating circumstances and I don’t know how it could be worded so that it would give assistance to the courts in trying to define what was meant by them. I wonder whether perhaps the court is going to do that? That’s the problem.

Certainly I would take the position that there ought to be an equal division and I have said it from the start. I think, however, and I would submit that this particular amendment does one of the things that bothered me. It seems to require apartition, almost at the time of dissolution, if one looks at it from that point of view. That may not be in the best interests of either of the parties.

The evaluation period I now understand. I wasn’t clear about it when I first read it. Certainly, with the principle that there has to be a basis upon which a court may find the contribution made by the partner who is not in the work force, or in the market place, and that of the spouse who is, in fact, there is one problem with this bill. Certainly, there ought to be an ability in the courts to make a 50-50 decision on the matter.

Perhaps, if the Attorney General in this particular bill had decided he would deal with the family relationships only -- i.e., husband and wife relationships -- then we wouldn’t be in this kind of muddle trying to work out the clause as it relates to the matrimonial home. But, he has, in fact, muddied the waters, if I may put it that way, by introducing the parent/child relationship.

Again, by not clarifying, and not looking at it in depth, it does make it difficult for me as a lawyer to accept this clause. However I am inclined to accept it on the principle on which it is based in order to indicate how concerned I am with the wording as it stands.

As I said in opening, it is strange that this government, whenever it tries to come to grips with something of this nature, always makes the woman less equal than the male.

Let me give you another statute you have used this year. I gave you one in my opening. Take the child welfare legislation. That was amended to ensure there would be no ambiguity. That was amended to ensure either parent could have an order made against them, but you made it abundantly clear that, notwithstanding the woman’s responsibility in that role, the religion of the child was still going to be the religion of the father.

You can’t seem to come to grips with any kind of equality. You have to put the woman down in every possible relationship.

Hon. Mr. Clement: How can you do it the other way?

Mrs. Campbell: Why isn’t it good for once to have the inequity on the other side of the fence?

Mr. Bounsall: If you have to have it.

Mrs. Campbell: Why do you have to work out so painfully equity for everybody else but the woman? What kind of statute of limitations will apply in these cases, when you think of the medical statute of limitations?

You’ve always got to turn the knife in her back. You have done it every time. You are doing it again here because you can see some inequity.

It is the same in the rape issues. We have been through that so often. It would be a terrible thing that an innocent man might suffer. It hasn’t been terrible for centuries that innocent women have suffered without any recourse to law. This is your one-sidedness. I don’t know how you do it; I don’t know how you overcome it. But, notwithstanding my concerns about the legality of this kind of a provision and its far-reaching effects, I am inclined to support it simply to indicate my concern for your lack of interest in any equity for women in this kind of legislation.

Mr. Chairman: Does anyone else wish to speak on the amendment?

Mr. Bounsall: If I could just have another word, I must admit I was influenced in adding the last clause of that amendment by something that does appear in section 1(3)(c). Would the minister at this time like to indicate what he specifically means in this bill -- this is off the main point of my concern over this section -- by adding “or had” to the “has” here in line five? Does this have anything to do with whatever way the judicial decision is to divide a property interest? Hopefully, the minister would see that it has to be 50-50 or he gets into all these problems -- the 50-50 that I have proposed in my amendment.

But that aside, what is the “or had” that’s added to the “has” in effect do? Are we into the whole game now of tracing property which has been owned and is now not owned? How do you propose to do this? This worries me because I can see a tremendous amount of work here in determining that.

All of the assets and all of the property acquired since marriage are being divided 50-50. I can see on top of having to determine the actual work or money’s worth of work that the one spouse has contributed to the property that there is the problem of tracing property which has been sold. Could the minister comment at some length or make it very clear to me just how one goes about this property which has been had in the past in terms of the judicial division of it or the judicial tracing of it to arrive at some sort of a division.

Mr. Chairman: Would anyone else like to speak on the amendment before the minister? If not, the hon. minister.

Hon. Mr. Clement: Mr. Chairman, the “has or had” is to prevent the person who ends up with the title of a piece of property in their name from disposing of it and saying: “Well, all right, sure I had a piece of property but I don’t have it today, and today we are in court. I got rid of it last week. Prior to coming to court I disposed of it.” If we had the word “has”, that means current tense. The person could say: “I don’t have any property now. I sold it a month ago and therefore it’s dealt with. You have no jurisdiction because you can only deal with property that I own in the present tense.”

As far as tracing it goes, there is nothing unique about this in those matrimonial disputes, particularly where title ends up in the name of one spouse and the other one is attacking that type of arrangement. One traces usually the whole chronology of their identification with their opposite spouse and what ventures they went into trying to show a joint type of arrangement all the way through. There is nothing unusual about that at all.

The woman says: “When Bill and I got married, I had so much savings and he had so much and we bought a piece of property. We held it for four years and sold it at a profit. Then we bought a shoe store or a corner grocery store. We went on and on and finally we had our third home. I always understood Bill and I owned it until we split. Then I found out, lo and behold, it was in his name alone. I think I have a half interest in that house.”

That is the sort of thing. It is very, very common. The other side tries to say otherwise. Their evidence is always that some other type of arrangements existed. You run into this all the time.

Mr. Bounsall: Do I understand that there is no limitation in terms of a division in how far back one goes in tracing properties which one of them owned?

Hon. Mr. Clement: No, I don’t think there is any limitation in the sense that counsel for the husband, if we can keep it in this kind of a context, says: “She is telling about something that happened in 1928 and that doesn’t count.” It’s an ongoing thing.

You used the proceeds of the 1928 sale to buy something in 1929. Then you developed that in the form of a business or a piece of real estate that you improve. Really you are ending up with 1975 dollars that originated back in those days. The person is trying to trace them all through to show the contribution that she made to the acquisition of the eventual asset which might be an apartment block or something of this kind. There is nothing unusual about it.

If you just had the word in there that the person “has”, then they merely dispose of it prior to the trial of the action and they look the judge in the eye and say: “I haven’t got it today and you can’t deal with anything unless I’ve got it in the current sense.”

With reference to your amendment, I want to make this perfectly clear. At this particular moment, I am not anti-50-50; I am not anti-female. I am not -- I don’t know what I’m not except one thing that I am -- I’m very cautious about the approach we are taking to this thing until we’ve had a chance to look at the recommendations of the Law Reform Commission insofar as they relate to the supportive role of the parent. We may end up on the same wavelength six months from now.

Mr. Bounsall: But you have placed things in limbo by this clause and not making it clear.

Hon. Mr. Clement: No, we haven’t; because if you are really concerned and say don’t place it in limbo; leave them the way they are, you’re going to turn right around and tell me in the next moment that simply isn’t good enough because the Irene Murdochs of the world are not protected in Ontario today. And I’ll agree with you.

Mr. Bounsall: I am saying six months from today should be the day.

Hon. Mr. Clement: Yes, you are saying six months from today should be the day. I tell you there is a little more to it than just the matrimonial home and Irene Murdoch. There are certain other considerations which have to be weighed, too.

Mr. Bounsall: That is what we have been saying.

Hon. Mr. Clement: Okay. Maybe we will be on the same wavelength and maybe you are much faster than we are. In the absence of extreme extenuating circumstances -- and I share the concerns of my friend from St. George; I realize the draftsman is not a solicitor nor professing to be one but it’s difficult. A judge may come out and say: “I found extenuating circumstances but not in the degree of extremity I think should be or was the intention of the Legislature.” You are making work for lawyers. You really are.

Mr. Bounsall: If you will accept it with the extreme out of it, we will accept it in that form.

Hon. Mr. Clement: Perhaps in a drafting way that would be right, “in extenuating circumstances.” Okay. You are saying it is going to be 50-50 except -- here are some of the practical things you are going to run into. You are going to run into some real problems here.

Mr. Bounsall: It is you who brought up the problem examples; you wouldn’t take it on a straight 50-50.

Hon. Mr. Clement: I beg your pardon?

Mr. Bounsall: It is you who brought up the extenuating circumstances: It is you who will not accept a straight 50-50; and you quote the odd example. Now you are going to get up and quote the same examples as some proof of why you need extenuating circumstances there.

Hon. Mr. Clement: No, I am not. You start off with the proposition that a person is not entitled to any interest in another person’s property unless they have made some contribution to the acquisition, maintenance or operation of that property. Right?

Mr. Bounsall: That is your assumption.

Hon. Mr. Clement: That is the law today. Your neighbour can’t say to you when you move, “I cut your grass four years ago and I maintained your house.” That’s being facetious.

Mrs. Campbell: Neither can your wife.

Mr. Bounsall: My spouse is a bit different from my neighbour.

Hon. Mr. Clement: All right; neither can your wife today.

Mr. Bounsall: That is what should be changed.

Hon. Mr. Clement: That is what I am trying to change. I’ve been here for two days trying to change it to say if she has made a contribution -- or he has, if it is her property -- by golly, they ought to be recompensed for the contribution they have made to the operation, acquisition and so on. That’s all I’m trying to do.

That will apply not only to the matrimonial home, which is a piece of property, it will apply to the Murdoch type of business; it will apply to many things. To stop at that point and say: “That is it. Look what we’ve done for womanhood in Ontario” I agree is simply not going far enough. It’s an ongoing thing.

Do you see what happens if you impose a 50-50 duty? You say 50-50 is the law of the province except in extenuating circumstances. You come to me some day when we are not members of this House and you want to take the business you operate and merge it with the one I operate. We are going to go into business together and maybe I think that might not be a bad idea. Then we decide that maybe we are going to sell the business we have created and go into something else or enlarge. Boy, you are going to have a hard time convincing me that your wife is going to agree to this. All of a sudden --

Mr. Bounsall: But that is what subsections 1 and 2 of section 1 of the bill does. It allows you and me to engage in that kind of operation without anything needing to be divided, from my point of view, as long as I continue to be married and you continue to be married. We go about doing, with our own legal personality, as I understand it, what I wish with my legal personality and you with yours.

Hon. Mr. Clement: Your perception is commendable. Then, in your amendment, you put the stringer back on.

Mr. Bounsall: No.

Hon. Mr. Clement: You do, because you tell me, in the absence of extenuating circumstances, the division of assets and property shall be 50-50 between the spouses.

Mr. Bounsall: That is right. Should there be a dissolution of that marriage, there is a property settlement at that end. This does not prevent you and I from entering into any business agreement that we wish.

Hon. Mr. Clement: All right, fine.

Mr. Bounsall: Neither your spouse nor my spouse have a say, because we each have our own legal personality, as do both our spouses, in whatever business transaction we are doing.

Hon. Mr. Clement: Right, that is fine. Now you put up your $10,000 and I put up mine, and then I say: “Okay, we are going into this venture which is going to last two years. I want some form of guarantee from you that you are not going to have a marriage breakdown, and a separation, within the next two years, because when we go to sell the assets your bride may say: “Uh uh, I don’t want to deal with her. I don’t even know her. I know you. I trust you.”

You see what you are doing. You are putting a string around. You are complicating the law of merchants. People won’t go into partnership together unless they are celibates.

I would be afraid to go into a business. I would be afraid to practise law with somebody who is married because we might acquire assets for the firm, the photocopiers, the library, that are unique between he and I, and then he has a marriage breakdown. And I say to him: “Charlie, there’s no sense continuing on. You’ve got so many personal problems, let’s sell the practice.”

Along comes somebody and says: “I’ll buy it.” I say: “That’s good enough for me.” He says: “Good enough.” She says: “Uh uh, it’s worth more than that because of the 50 per cent. It’s 50-50, his share and mine. I have a voice in how you two fellows, who formerly were partners, are going to distribute your assets of the partnership.”

I’m telling you, nobody would go into any type of business venture with anyone else unless they were out of their skull, or contracted themselves very carefully out of it if they could. It would be a step backwards.

You can recognize that, because you’re a married person. Under subsections 1 and 2, like they say about women, they are femme seule, single woman.

You are not going to be fettered; you are not going to be fettered with this artificial covering called marriage that is going to disrupt in any way that sort of thing. That’s good. Then you come along and you hang, whether I like it or not as your potential partner, you hang a ring around me. I may end up having to do business with your wife and I may not want to. You and I may get along just fine, and she is going to say: “No, Teddy Bounsall and I have split and I want a lot of money out of his share; not yours, Clement, his share of the business.” That may delay the liquidation of the business.

I tell you it’s a very regressive step. I can’t accept it. I ask you to speak to your colleague from Riverdale about it, in terms of some of the impairments it could have. I mean community of property is such a failure; in the Province of Quebec everybody contracts out of it. All the law reform commissions, including the federal, have really recommended against it.

Mr. Bounsall: You said again and again, they are in agreement with section 1 and 2 of the bill.

Hon. Mr. Clement: Ah yes. If you have an agreement, naturally that’s fine; but in Quebec most people do agree. I mean you get the situation where the husband to be from Toronto goes down to marry the girl from Quebec, or vice versa. They sign the agreement, but they are going to come back here to live because it may have ramifications on his assets and on hers.

One last thing, Mr. Chairman; the member for St. George felt badly that, under the Child Welfare Act, we had been somewhat prejudicial to the, and she used an example; the role of the child and the religion of the child. Up to the present time, the wife always took the husband’s name.

Mrs. Campbell: Not always any more.

Hon. Mr. Clement: Not always any more. Up to 10 years ago, I think you would agree with me that the wife always took the husband’s name. There is no legal obligation on her to do it, but it was for purposes of identification and purposes of property initially under the English common law. The child always took the father’s name unless the child was bastard, in which case certainly the last name the father wanted the child to take was his. A child of an unmarried mother follows the mother’s religion, and that’s fair enough. If a child is not raised in the religion of a father but in another religion, the judge can declare the religion that the child is reared in is in fact the religion of the child.

I think the rule in the Child Welfare Act that the child takes the religion of the father is just a starting point in the absence of something else to the contrary and bearing in mind history. It is the same thing with domicile, which we were discussing here the other day, in the case of a married woman taking the domicile of her husband.

Mrs. Campbell: She still isn’t a person.

Hon. Mr. Clement: These things come gradually. We are dealing with 200 or 300 years of background, legislation and custom. To change them all on June 23, 1975, is just a great problem.

Mrs. Campbell: The difficulty is the fact that it has taken 200 or 300 years, and with this kind of step at the end of 200 or 300 years one has no real assurance that it is going to be a meaningful progression. I think that is the problem.

Certainly I said there are some steps forward in this. But when you rule that a woman may have an order for support and the child takes the religion of the father, it’s a putdown and you know it is. That’s all I am saying.

Mr. Chairman: The hon. member for Windsor West.

Hon. Mr. Grossman: In the original faith, the child takes the religion of the mother.

Mrs. Campbell: That’s true, but that might change.

Mr. Bounsall: In my opinion, in his reply the minister continues to muddy the waters to a point where I really don’t know whether the minister has his thoughts cleared away or will do anything to protect the 12 or 14 lines he has here without any sort of change. The intent of my amendment was to talk about the 50-50 division.

It is the wording that he uses to achieve not only the Murdoch case, but in his own explanation the effort the wife is going to expend in applying paint to a matrimonial home. It is all covered very inadequately in this base. My amendment gets across the principle of the division, but I would be the first to recognize it would need more spelling out than my amendment does in terms of indicating what I would wish to see achieved inasmuch as I say these 12 lines do not do anything really to spell out what you appear to be trying to achieve.

What I would suggest, but have not in my amendment, is that anything acquired since marriage should be divided equally between them. One has a starting point and one has a point at which a divorce or a nullity occurs and the assets acquired jointly, or the appreciation of assets priorly owned, would be split 50-50. This does not mean that a business enterprise in which one spouse is acting would necessarily need to come close to dissolving because of a split of assets which that person and his spouse have acquired since marriage.

In fact, one could go on and say, if there is any doubt about the fact that a business or a farming enterprise or what have you would survive because of that division, there could be a three-year period or a five-year period over which to pay that equal divisional split. This whole area needs to be spelled out.

This is what is wrong with section 1(3) (c); but what is perfectly clear with section 1(3) (c) from what the minister has said and what he is unwilling to do in terms of accepting the amendment is that whichever spouse is not involved in activities directly relating to the improvement, maintenance or management of property which the two spouses own -- that is whichever spouse is involved in doing a lot of the things which pertain to a marriage relationship; that is washing the children and washing the dog; cooking the meals which the children and the other spouse eats; washing the clothes which the children and the other spouse wear -- all of that contribution is for nought because it does not relate to the acquisition, management, maintenance or operation of any property which one or the other owns or which they own jointly. That is basically what is wrong with your whole concept of what this bill does.

Mr. Chairman: Does the member for Windsor West want this amendment stacked?

Mr. Bounsall: Yes.

Hon. Mr. Grossman: He wants to withdraw it?

Mr. Bounsall: Stacked.

Mr. Chairman: Section (d).

Mr. Bounsall: We’ll have you here at 10:30 tonight.

Mr. Chairman: Subsection (d) of section 1 ( 3). Any comments on this? Let’s move to section 2.

Subsection 4? Carried.

On section 2:

Mrs. Campbell: I have to go back to this matter of domicile and I suppose it’s equally fair. If you sit in a court in Ottawa in a marital case -- in family court -- you are very much aware of the way in which husbands take off for Hull or other points. The minister spoke of the matter of inheritance in dealing with the matter of domicile; I point out that I wonder what equity there is. It doesn’t change anything in existence today. It simply continues the limitation of a woman in the right to inheritance, I suppose, like anything else. If he happens to be in Quebec or in some other jurisdiction which does not permit her to inherit freely or to deal with an inheritance freely, I suppose that’s okay.

This is the way this government looks at this kind of thing and we bring in all sorts of other outside considerations to say you mustn’t move too quickly. I don’t think anybody in his right mind is going to accuse this government of moving too quickly.

I have said what I had to say about domicile and I suppose we can continue this way. It was interesting, Mr. Chairman, one of the things that amused me and irritated me was that when I was the budget chief of the city of Toronto I had two certificates, none of which yielded me any great amount of money, but they were in two different names, Mrs. S. C. Campbell and Margaret Campbell. It was suggested that I should change them into one and I agreed, but when I got a letter asking me to have my husband’s approval of this transaction, I decided they could keep it the way it was.

I don’t think unless you have been through this kind of thing you really appreciate the humiliation many women have in dealing with matters in Quebec. Certainly I would like the minister to discuss, if he will, what the situation would be, in his opinion, in the matter of inheritance when the wife is deemed to be domiciled in the Province of Quebec because her husband is; and what he would propose should be done about such a situation in this century?

Hon. Mr. Clement: The laws of domicile, of course, when you first start studying them always seem peculiarly framed, because people tend to confuse domicile with residence. You find all kinds of peculiar situations, particularly during the war, when a Canadian serviceman from Toronto transferred to England -- still domiciled in Ontario in law, but resident in England from 1939 to 1945

-- took upon himself an English war bride who had never been out of her home village and immediately on being pronounced man and wife by law recognized internationally, was domiciled in the Province of Ontario. People had difficulty in resolving this.

On her entry into Ontario, or even before leaving England, she may have found that he had been unfaithful to her and decided not to accompany him to Canada but to bring an action for divorce. She could only bring her action in the law of her husband’s domicile, or in a court that her husband’s domicile would recognize. You started those whole series of cases -- most difficult.

But, again, I suppose there have to be some rules; there has to be some form of order. This may not be the best; but it’s the one that at least most of us understand.

Mrs. Campbell: The federal government recognized it.

Hon. Mr. Clement: That’s right.

Mr. J. E. Stokes (Thunder Bay): Why is the law so complicated?

Hon. Mr. Grossman: Because lawyers run it.

Mrs. Campbell: Because of people like this.

Mr. Stokes: Surely you, as the chief law officer of the Crown --

Hon. Mr. Clement: Because we want to put it in straightforward layman’s language. When you do that sometimes there is difficulty, and if you don’t, there is difficulty. So if I knew the answer to your question, I’d be glad to put it forward to you. It’s just that people really put different emphasis on different situations and different words -- each to their own degree of validity.

Mr. Stokes: Law is a battle of words, and you people are supposed to be meticulous grammarians.

Hon. Mr. Grossman: Who? Lawyers.

Hon. Mr. Clement: Litigation in this province and the common law countries is based on the adversary system, where one takes on the other. Two champions are fighting -- all right?

Hon. Mr. Grossman: It sounds like a marriage.

Hon. Mr. Clement: It wasn’t too many years ago in England that if you didn’t want to fight your own battle, you could hire a champion. He’d come in with a great big cudgel and hit your opponent on the head. Now you hire a lawyer because, you see, we are civilized.

Mr. Stokes: There are two kinds of violence. There is a violence of words.

Hon. Mr. Grossman: The other guy gave you more value for your money.

Hon. Mr. Clement: The member for St. George -- I don’t intend to put words in her mouth, but I think she’ll recognize why we must have the section we are now on, Mr. Chairman -- that if you have it one way, you have got to have it the other. The section, of course, will remove that restraint on alienation of property. Now, insofar as the woman dealing with the Province of Quebec goes -- I don’t really understand that. Are you telling me that in Quebec a woman cannot inherit under the civil code? I’m not familiar with that concept. I don’t understand your question.

Mrs. Campbell: It is a question of dealing with that which she inherits -- to be enabled to deal with it without consent. And in this case it would probably be almost impossible to get any consent.

Hon. Mr. Clement: That’s right. I have heard a little bit about this; although I know very little about it. But she is considered to be --

Mrs. Campbell: She can’t even sell a motor vehicle there without her husband’s consent.

Hon. Mr. Clement: She has to have some kind of consent from him. I think there used to be a ploy -- I don’t know if it still exists -- where you would put the car in your brother’s name rather than your own, to get around this problem. Of course, everything was fine until your brother sold the car or gave it to his girlfriend, and then you were after him. I don’t know whether it was a six or two threes.

But I think that that sort of situation demonstrates what can happen when you community of property. Again, I’m not suggesting the member for Windsor West is suggesting community of property; but in a sense there is a blending and equal sharing in your proposal, which brought me to my feet a few minutes ago when dealing with the suggestion you made -- which has now been stacked.

Mr. Bounsall: Mr. Chairman, on subsection 2 of section 2 on domicile, in my opening remarks in debate on second reading I had some remarks to say on this. Assuming those remarks were based on the assumption that in Ontario we would have the right or the power to change the domicile if we so saw fit. Am I correct, Mr. Minister, in this, that as far as divorce goes, as far as domicile would affect divorce, or affect the situation of which spouse deserted and which one didn’t in terms of support, or as it might affect the divorce proceedings or the divorce settlement, these are federal divorce laws and that in Ontario we could have no effect one way or another through legislation on domicile, or are we hamstrung completely by the federal laws and federal interpretation in the divorce area?

Hon. Mr. Clement: The law of domicile is pretty well universally accepted through the common law world. The wife always takes the husband’s domicile. That generally is the perception of domicile. We want to make it perfectly clear in this legislation, and that’s why we specifically refer to it, that nothing in here is going to change that because we may end up adversely affecting domicile. We don’t want to do that. We may not be happy with it the way it is but we know where we’re at in it.

The divorce law in Canada is dealt with under the Divorce Act of 1968, which is a federal statute. And for the first time ever in Canada, with the enactment of that legislation in 1968, they said you can bring an action in Canada in a place where you’ve resided over the previous 12 months, I believe it was, and you weren’t bound to bring it in the province of your husband’s domicile. Previously, for example, say a married couple living in Ontario become involved in a terrible situation, the wife leaves and moves to Vancouver then, in due course, hears that her husband is living with somebody in Ontario, she files the evidence here and has to come all the way down here to launch her action, in effect -- I’m overly simplifying it, but generally this is what happens -- for whatever reason, so she could comply with the domicile law. She can now bring her action in Vancouver as long as she has been a resident there for 12 months and is domiciled.

A man’s domicile can change too. You might have been born in Arabia and that might have been your father’s domicile at the time of your birth, but circumstances change through your life and your domicile can change. So we didn’t want to interfere with this bill, or if we tried to, it wouldn’t be recognized by other jurisdictions in any event.

Mr. Chairman: Does subsection 2 carry? Carried.

Section 3 carried?

Section 3 agreed to.

Mr. Chairman: The member for St. George.

On section 4:

Mrs. Campbell: Yes. I really have some problems with this section -- and I raised this before -- on the matter of limitations of the action. Is this an action which can go on forever? Is the right inherent forever? Surely there would be some point at which the action would be barred, particularly when you deal with the matter of the medical profession and if, for instance, it were the mother against whom the action was taken, she might have a claim over against the doctor which would be barred by the statute?

Hon. Mr. Clement: Excuse me, I am not ignoring you.

Mrs. Campbell: No.

Hon. Mr. Clement: I just want to get this clear with my staff.

Mrs. Campbell: I just wondered what provision there would be. The same thing, I suppose, would apply -- I think most of these would be far more likely to be actions against the mother than against the father, I would suppose. It is strange there seems to be no provision anywhere for any limitation period for the right to bring such action.

I am not opposed to the child having the right. I never have been. I did say in opening, it seemed to me there should be a whole bill of rights for the child. They should be dealt with in a statute dealing with children, and not dragged in here in this way.

Section 3 simply gives the right without this entitlement. Now you have a recovery in specific terms for injuries incurred before birth. Is this to be interpreted for medical purposes, being namely the time at which the injured party realized a claim was available, or is it to go on for as long as the mother, for example, is in a position where she can be sued at any time as long as the child lives and she lives? I would like an answer to it.

Hon. Mr. Clement: I was having some difficulty understanding, and I hope the member doesn’t think I was degrading what she was saying because it is a very good question.

All this does is confirm that the prenatal injuries suffered by someone are, in fact, recoverable by that person following his or her birth, subject always to those time limit periods that exist for a human being -- put it that way -- for the ordinary citizen about to recover in tort.

We have recently enlarged the time under the Highway Traffic Act, as you will recall, from 12 to 24 months. Let’s take a woman who gives birth to a child three months after an accident. That child has suffered injuries because of the tort of the driver of the other car --

Mrs. Campbell: No.

Hon. Mr. Clement: We don’t profess to deal here with the limitation periods. We just want to make it very clear so that the person isn’t met with a defence: “Well, at the time of the injury, you weren’t a person in law,” and we get into all that argument. They have a specific right of action. They would bring their action within 24 months of the date of the injury.

Mr. Campbell: That would be through an accident. I am talking about the case of something which may have occurred for the reason that something the mother did prior to the birth of the child, or that the father did prior to the birth of the child, had, in fact, injured that child.

Hon. Mr. Clement: An assault?

Mrs. Campbell: It could be an assault; something of that nature: It could have been something a mother had taken by way of treatment that she didn’t know was going to have that effect. The doctor is barred as of a certain time. The mother, I would think, would still be open. When would you ascertain the right in such a case? That is the kind of case I think is open under this, and it gives me concern. The tort action in the normal case, of course, has its own limitations.

Hon. Mr. Clement: I think one would expect the child, the potential plaintiff, is going to be placed in no better position than the normal adult plaintiff. I would not, at this time, consider there should be any enlargement of time.

If you are talking about an assault, a personal injury of that nature, I forget the limitation, but I think it is two years for bringing an action for an assault. The child would, I suppose, have the right of recovery from the time the injury was inflicted.

That would count. I think what we are talking about is the time of entre sa mere; that would run against the youngster. I would think, just talking off the top of my head, that it probably would. There would be those who would argue it could only run from the time the injury was perceived or known. Of course, as I understand the law in the province today, I may have taken medication 20 years ago but now I find out even though I followed that doctor’s advice, it was very serious and, in fact, could harm me. The period has gone by. Even though I have improved medically, I have suffered harm as a result of taking that prescription. I would have no right of recovery against the medical practitioner who advised that type of treatment.

I think you would find the same thing here. I would be inclined to think that the time would run against the infant from the time that the injury was inflicted, not from the time of its birth or the time that it was perceived, because the infant might be 10 years old before the damage was readily ascertainable. The infant today is met with those same kind of defences, and I can’t see this section putting that type of potential plaintiff in a better position than the normal plaintiff is in today.

Mrs. Campbell: With this exception, Mr. Chairman: I recognize that so far as the medical profession is concerned, they have special protections; and notwithstanding our attempt to make it clear that the statute should run only from the time one knew of one’s rights, that did not follow.

Here you have children who can claim against parents if you combine sections 3 and 4, but the child is really not in any position to claim at all because it doesn’t know; you’re not going to see an official guardian getting into the picture at that point, and the family is not going to say anything. To me, it leaves this situation wide open, with no one quite clear about what the rights are.

You say you’re not enlarging the rights, but you have enlarged the rights in order to enable the action between the parent and child. That is an enlargement, is it not?

Hon. Mr. Clement: Yes.

Mrs. Campbell: All right. Then you follow with this particular clause 4. I would suggest strongly that either one makes it clear or doesn’t make it clear that there either is or is not a statute of limitations. As I read this, there can be surely no statute of limitation if it amounts to something that has to do with some action which the mother has taken.

I can buy the suggestion that on an assault on the mother there is a limitation. But the mother is in a position to know she has been assaulted. Here is an infant injured prior to birth but with no knowledge whatsoever that a criminal act has been involved or a tortious act or whatever. It’s the criminal aspect of the assault. as I understand it, that would have this kind of limitation, rather than the tortious portion of it.

Sections 4 to 9, inclusive, agreed to.

Mr. Chairman: I will now leave the chair and return at 8 o’clock, p.m. As you know, there is a vote that will be called immediately on our return, when we come to section 10.

It being 6 o’clock, p.m., the House took recess.