L083 - Thu 9 Jan 1986 / Jeu 9 jan 1986
CHANGE OF NAME ACT
CHILDREN'S LAW REFORM AMENDMENT ACT
VITAL STATISTICS AMENDMENT ACT
CHILDREN'S LAW REFORM AMENDMENT ACT
VITAL STATISTICS AMENDMENT ACT
The House resumed at 8 p.m.
Hon. Mr. Scott: If I have unanimous consent, I ask that Bills 11, 12 and 13 have second reading together as they are interconnected.
The Deputy Speaker: Is there unanimous consent for Bills 11, 12 and 13 to be read together?
Agreed to.
CHANGE OF NAME ACT
CHILDREN'S LAW REFORM AMENDMENT ACT
VITAL STATISTICS AMENDMENT ACT
Hon. Mr. Scott moved second reading of Bill 11, An Act to revise the Change of Name Act; Bill 12, An Act to amend the Children's Law Reform Act, and Bill 13, An Act to amend the Vital Statistics Act.
Hon. Mr. Scott: If the three bills presented this evening are approved, they represent approval in principle of major reforms of our laws relating to names and changes of names. Given the importance of these reforms, particularly to women, I invite the support of this crowded assembly to these important charter-inspired amendments.
Members will be aware the Supreme Court of Ontario has already found that one of the provisions of the current law is inconsistent with the Charter of Rights and Freedoms. In my view, respectfully, it will be only a matter of time before other provisions of the existing law will be challenged, perhaps successfully. Therefore, these bills, as a package, are intended to bring our law into conformity with the charter, particularly into conformity with section 15 of the charter, and to address the charter conflict the court has already identified and passed upon.
The reforms are not only legally significant as expressions of equality rights under the charter, but are also personally significant to the unique identity of every Ontario resident. Every constituency office -- or certainly mine, which has been open only a short time -- knows of the problems of a married woman who comes to the office wishing to revert to her maiden name or combine her surname with her husband's name, or of a deserted single mother who wants her child to have the same surname as hers, her husband having disappeared or abandoned all custodial or other rights to the child.
In recent years, members of all parties have introduced bills of one description or another designed to remedy and respond to these kinds of problems, much in the way the proposed legislation does. Accordingly, I am modestly confident the members will join at second reading in supporting the principle of the bills. Every birth and marriage creates a need for these reforms. Therefore, following second reading, we hope to proceed to enactment as quickly as possible.
As a result of a brief submitted by the Canadian Bar Association, Ontario section, I understand some members of the Legislature are anxious that Bill 11 be referred to the standing committee on administration of justice to consider the proposals the Canadian Bar Association has made. The government has no objection to that, but if, during second reading, members should change their minds, we would be delighted to see speedy enactment of these amendments designed to deal with the Charter of Rights challenges that confront us at present.
I should add only that it is the government's intention to ensure, as it has done in respect of every bill introduced by the Attorney General's department, that the Change of Name Act is enacted in both English and French, giving equal status to both versions.
Mr. O'Connor: I welcome the opportunity to provide our party's endorsement to these three bills in principle and would like to take the opportunity to say a few words with respect to each of them.
I would like to direct a few remarks to the Attorney General (Mr. Scott) with regard to these bills. I particularly note that upon his arrival in the chamber tonight, approximately five or six minutes ago, he announced or asked or whatever that these three bills have second reading together or in tandem -- I have forgotten his exact phrase. We have no objection to that, but I raise the matter because it is something he might have discussed with the opposition parties or at least sought our consent for that type of procedural matter.
I want to indicate we will be co-operating with him to the fullest, particularly with legislation such as this that was initially drafted by the Conservative government when it was in office and introduced by the then Conservative Attorney General. For that reason, if no other, we have no objection to the bills in principle.
However, some difficulties other than with regard to these bills arose today and in the past little while, with the processing of legislation. I would simply implore the Attorney General, if he could, to see his way in future to being a little more consultative with us. I think he will find there will be a considerable degree of co-operation in the processing of what is now his legislation, which was previously ours.
Hon. Mr. Scott: Mr. Speaker, on a point of order: I hasten to make the point that I would have consulted as my friend suggests had the possibility or even the idea of doing this sensible thing occurred to me before now.
The Deputy Speaker: That is not an appropriate point of order.
Hon. Mr. Scott: I am sorry.
Mr. O'Connor: I do not raise these points in any way to scold my friend opposite, but only to indicate a greater degree of co-operation with regard to his legislation, particularly when it was formerly ours, could be achieved with a bit of advance notice on some of these things.
We endorse the principle of these three bills which were introduced by the previous government for the reasons the Attorney General has noted; that is, the requirements of the Charter of Rights and the necessity for implementation of equality between the sexes and between married spouses in regard to all aspects of their relationship.
The history of the use of names and the ability or right of people to change them is one that is rife with discrimination, particularly against women, children and, in some cases in the recent history of Ontario, against non-British subjects who, under the existing legislation not too long ago, had a more difficult time changing their names than did British subjects.
8:10 p.m.
As a few examples in the recent past, I would simply note that until 1972, which is not all that long ago, a married woman could not apply to change her name even if she wished to change the name of the whole family. It simply was not her right to change her own name, which was a highly discriminatory measure in our then existing law. In 1972, the law was changed to mollify that situation to a certain extent, but not completely.
Until recently, when a Supreme Court of Ontario decision held otherwise, a woman who retained her maiden name after marriage and then wished to change it had also to apply to change the surname of her husband and her children. She was not free of her own accord to deal with her own name. That would be the law today but for the decision of the High Court of Ontario which ruled that section and the result of that section in the Change of Name Act to be unconstitutional and unfair.
At present, even under the existing law, certain provisions of the current law are unfair, particularly to women and children, and require amendment in the very near future. That will be resolved and taken care of by the provisions of Bill 11. At present, an unmarried mother cannot change her child's name to her own name. The child must bear the name of the father. If the child bears the name of the father from birth, the unmarried mother does not have the choice thereafter to change the child's name.
Another provision in the law as it currently exists is that a man cannot assume his wife's name on marriage as the wife can assume the man's name. As another example of the state of the law as it currently exists, parents cannot give their children the mother's name upon the birth of a child. The option in the law as it exists is for the child to use the surname of the father, or alternatively, to use a hyphenated name of the mother and father, but not to use that of the mother alone.
It is necessary to bring this whole area of the law into the 1980s. The Human Rights Code and the Charter of Rights guarantee equality between the sexes and between spouses. There are numerous examples where such equality does not exist and which should be rectified.
Further, under the present law, to change the name where it does permit change of name -- I have indicated areas where such equality does not exist -- a lengthy and cumbersome procedure is required, one that requires a court application to the district court in the jurisdiction where the applicant lives. The costs involved run between $300 and $500 for an individual and up to $1,000 for an entire family. That is an exorbitant amount of money for what should be a simple and straightforward procedure.
There is paperwork by way of an application and supporting affidavits. There is the necessity to publish the application and its provisions in the local media. Alternatively, if one wishes to avoid that publication, one must make a separate application to the court to dispense with the necessity for local publication, adding to the expense and the delays involved in the processing of the application.
Wisely, we have seen the cumbersomeness of all this and the need for simplifying such procedure. Bill 11 does two very important things. It provides two very important services to the people of Ontario.
First, it removes the various discriminatory restrictions to which I have referred and it puts all parties involved in wishing to change their name on an equal footing. Husbands, wives and children, with the consent of the custodial parents, would have equal rights generally in this area of name changes.
Further, and quite important, it dramatically simplifies the whole procedure of name-change applications. Hereafter, upon the passage of Bill 11 -- which we hope will be done in the near future as has been indicated by the Attorney General; we support him in his view in that regard -- there will be a simplified, straightforward application to be dealt with by the registrar general under the Vital Statistics Act. There will no longer be the necessity for court applications; there will merely be the filing of a single form with a considerable amount of information required.
Whether all that information is necessary and whether it can be modified and cut down to a certain extent is something we can perhaps raise at the committee stage of this bill. However, the thrust of the application now is one simple form that is to be processed by a person who will no doubt be experienced in reviewing these things quickly. The time will be cut down dramatically and the cost will be considerably reduced. Although there are no regulations to the bill as yet, I would expect a cost somewhere in the neighbourhood of $25 to be sufficient to accommodate the work needed on the part of the civil servant involved.
According to the bill, the application must be processed and approved by the registrar general. There is only one condition upon which he cannot and must not approve the application, and that is if he deems the change to be sought for an improper purpose. The statute is thereafter silent about what is considered to be an improper purpose, and again perhaps at committee stage we could do a little bit of work to assist the registrar general and the courts -- some of these matters do go that far -- in defining what is and what is not an improper purpose.
I have some ideas I will put to the Attorney General at that time about how we might better define that area. To leave it as broad, as general and as open as it is, I suggest, would invite some discretion, perhaps too much, on the part of the registrar general. He might welcome, and the citizens of Ontario would welcome, some guidance in determining and defining those terms .
If the registrar general sees fit to turn down an application for the reason mentioned, there is then the right of appeal to the district court. Thus, there is judicial input, judicial review of that decision should the applicant feel unfairly dealt with.
The improvements are significant, they are necessary and they are ones with which we will agree entirely, as I said, at least on second reading.
The second bill we are dealing with is Bill 12, a bill that amends in very brief fashion the Children's Law Reform Act. It is not tremendously significant or important, except that it is complementary to Bill 11. It is necessary to give full effect to those changes in Bill 11 that relate to children. Again, there will be no difficulty in our party agreeing in principle to those terms.
The third bill we are dealing with tonight is Bill 13, An Act to amend the Vital Statistics Act. This bill, as was indicated previously, is complementary to Bills 11 and 12. The three of them, I agree with the Attorney General, should be dealt with and passed in tandem to give full effect to the meaning and intent of the change of name changes that are being recommended as necessary to give effect to the Charter of Rights.
The present laws dealing with vital statistics -- that is, generally the registration of children's names at birth, spouses' names on marriage and so forth -- have some anomalies that must be changed. At present, a couple may give the child of a marriage or a relationship either the husband's name upon that child's birth or a hyphenated name comprising the husband's and the wife's names. The element lacking in that choice is the possibility of giving the child the wife's maiden name.
8:20 p.m.
Further, an unmarried mother may give her child either her name or a hyphenated name comprising both her name and the father's name, provided consent is obtained from the father. The element lacking in that situation is that the child may not bear the name of the father.
Ms. Fish: The mother.
Mr. O'Connor: The father; unmarried. Shall I explain it again to the member for St. George (Ms. Fish)? I can go right through it again.
Interjection.
Mr. O'Connor: She will get her turn. She should leave me alone. On a point of order, Mr. Speaker: The member for St. George is out of order.
Under the new bill, a child under either a marriage relationship or a common law relationship can bear the name of the mother or the father or the hyphenated name of both of them. There is a small situation that could arise in this circumstance and lead to some interesting scenarios.
There is an option for a couple registering their child. They now each have an equal right to register the child's name in their name or the spouse's name. If both spouses indicate they wish to register the child in his or her name and cannot resolve that difficulty, the registrar general has the right in those circumstances to register the child with a hyphenated name comprising the names of both the mother and the father.
The bill requires that he register them in alphabetical order. There may be some difficulty in that both parties might wish to be first in alphabetical order. One can anticipate that with the birth of the child mere days or a week away, one party will rush to change his or her name to Agronsky or Aaron or some such name to ensure that he or she is first, and the other will try to upstage the former by a similar manoeuvre. I wonder whether we are going to get into such situations.
One other significant matter dealt with by the Vital Statistics Act is a step that is almost common in the other provinces across Canada, I believe with the exception of one. Hereafter, all change-of-name procedures will be dealt with by the registrar general under the Vital Statistics Act.
The registration of the names of people and the issuance of birth certificates and all matters relating to that area will be dealt with by that functionary under the Vital Statistics Act. All these matters now will be dealt with in the same office by the same person, whereas previously the change-of-name application had to be made to a court and then referred to the vital statistics office for registration and for to be dealt by the civil service.
We will be supporting the provisions of Bill 13. I am not sure whether my friend's intention is to seek to have all three bills go to the standing committee on administration of justice. We are in agreement that at least Bill 11 should. Since the others are complementary, perhaps they should be dealt with at the same time.
I go back to my initial remarks to the Attorney General about some kind of courteous notice to us when he intends to proceed with bills of this nature. Having only yesterday been requested to be prepared to proceed on these bills, I was curious why the timing was such that he wanted to do it in such quick fashion and at this present time.
I read recently a story in the newspaper about a gentleman who was seeking to change his name. That gentleman is a friend of the Attorney General. I was wondering whether the Attorney General was seeking to accommodate his friend who is seeking to change his name. His friend's name is Richard A. Bain, QC. For a gentleman seeking to change his name to Richard A. Bain, QC, he has to go through the cumbersome procedure of applying to the court.
Perhaps the Attorney General is attempting to accommodate him in his wishes with his new name and that is why he brought these bills here this evening. For that reason, we are prepared to accommodate him to the fullest.
We are in support of these bills, and I thank the House for the opportunity to speak.
Ms. Gigantes: I also rise in support of the three bills before us. I am puzzled why the Attorney General has chosen to ask us to discuss all three together when it is quite likely we will want to deal with them in different ways. However, on behalf of our caucus, I should like to express our pleasure at seeing these bills before us, particularly the main one, Bill 11, which changes the very principles on which names and changes of names are made and given in Ontario. It has been a long time coming, it is very welcome, and it is most welcome by women, as has been noted before, and I am sure it will be by children, too.
I have just a few comments on the Attorney General's note that there was a desire on the part of some members of the House to see Bill 11 go to the standing committee on administration of justice. I would like to point out that though we were in a position to begin first reading on Bill 11 on October 24, I think the Attorney General at that time adjourned the debate rather than beginning to speak to it.
On November 28, the Attorney General and the critics for his ministry received from the Canadian Bar Association proposals for amendments to Bill 11. I have indicated to the Attorney General in the meantime that there are several points raised in that submission by the bar association that I think is worth considering. In particular, I note four items that were raised in that brief, which I feel should be looked at by the justice committee. I think the Attorney General might, upon hearing discussion of these points, decide they should be incorporated into the bill.
1. The Ontario branch of the Canadian Bar Association suggests that spouses, while they are cohabiting, should be able to change names only with the consent of the other spouse. While that may be a debatable point, it is certainly one worth considering and having a thorough discussion about.
2. The bar association also suggests that a child over the age of 16 who has withdrawn from parental control should be able to change his or her name without parental consent, though it suggests the parents should be notified after the fact. I think that too is worth considering. There are plenty of young people who, for very good reasons, having left home, may decide they wish to change their names and should perhaps be allowed that right without parental consent.
3. The bar association has suggested -- and this is quite a serious point -- the change of name of a child should not be accomplished by a custodial parent without the consent of the noncustodial parent. Again, to me that is a debatable point, but I think it is one that deserves discussion in committee and a good, deep discussion of the kind we are unlikely to have here. We do not have amendments before us from the Attorney General. I would certainly like to hear discussion on these points and I would consider putting forward amendments following discussion.
4. The bar association has suggested a person cohabiting, or a second spouse, should not be able to apply to change the name of the child in the family without the consent of the spouse who is the father or mother of that child. As the bill sits before us now, I read it the same way when I read it carefully.
In the case of a person who is cohabiting and in a familial, parental kind of relationship, as we have deemed it under our new Family Law Act, with a child in the household, neither the natural nor the adoptive parent of that child could make an application for the change of name without the consent of the natural or adoptive father or mother of the child.
The Attorney General has pointed out that notice would be involved, but it seems to me the law could be made better on that point. I think the point raised by the bar association deserves our attention.
8:30 p.m.
Even though these suggestions have been brought to us late, given the fact we are considering the bill late, it is worth taking a look at them. I would welcome some response from the Attorney General this evening, if we could have it.
I point out that Bill 12, as far as I can see, in conjunction with Bill 11 and with the proposed amendment the Attorney General has presented to us, looks to me to be quite straightforward. When we get to Bill 13, An Act to amend the Vital Statistics Act, I would like to raise some questions with the Attorney General concerning subsection 10a(1).
If I may make reference to that, what we are dealing with here is the change of name of a child under 12. This permits a child who is 12 or over to have the right to be consulted about such a change of name. I am wondering whether that is not too high an age limit. It seems to me that by the time a child is about eight that child probably has pretty strong feelings about his or her name and that the wishes of the child should perhaps be taken into account at an age earlier than 12.
I suggest to the Attorney General that in the amendments he has proposed to us for Bill 13, I see no problem except for section 5a. The amendment proposed by the Attorney General to section 5a refers to the registrar general and, in fact, makes mention of where the change-of-name certificate shall be obtained, which is in the registrar general's office.
Strangely enough, it refers to the registrar general's office as "his" office. I am sure this was not the intent of the drafters of the amendment and I am sure it is something we can clean up quite easily in the spirit of this legislation and our real interest in having these bills accord fully with the charter.
I would like to find out from the Attorney General whether it is his intent to deal tonight in committee of the whole House with Bills 12 and 13 and to allow us to refer Bill 11 as a separate matter to the standing committee on administration of justice, or whether he wants to throw them all to the justice committee?
Like the previous speaker, I prefer to have these bills passed quickly. If we can get Bills 12 and 13 completely through second reading tonight, I would be pleased to do that. I hope we can get to Bill 11 relatively quickly in the justice committee. I do not think it will take us long to deal with it once it is there.
Mr. Partington: I rise to speak in support of the passing of Bills 11, 12 and 13. I support them in principle. I am pleased to see that the thrust of the bills is to remove any discrimination on the basis of sex, marital or family status with respect to names and name changes.
I am happy to see in Bill 11 that it is now possible for a married couple to take the name of either spouse, the husband or the wife, or for them to have a third, independent name. More important than the right to have that choice of names, I think, is the simplification the act provides with respect to applying for a name change.
Up to the present time, as the member for Oakville (Mr. O'Connor) has mentioned, the procedure has been relatively complex, with an application to court and either publication of the application or an order dispensing with notice; and perhaps even a more awkward step of having the applicant individually, or if it is a family application the children as well, appear before a judge to answer questions in support of the application and declarations that are filed. The simple application now is a step that will assist the people who seek this very necessary service.
I would also like to speak in support of section 7 of the Vital Statistics Amendment Act, particularly the part that will now permit the child of a marriage to take the mother's name. I was very interested to read paragraph 7(3)2, which states that if the parents cannot agree on a child's surname, the child will be registered with the surname of his or her parents if they have the same surname, or with a hyphenated surname in alphabetical order if they cannot agree. That would be a very interesting circumstance to see, and I am sure it will lead to problems other than that of just trying to determine the child's name.
However, as I said before, the acts together go far. They provide fairness in the selection of a name as between spouses and they simplify the change-of-name procedure, which is a step that should be taken, because in the great majority of cases the applications are made for very good and proper reasons.
Mr. Warner: I appreciate the opportunity to participate in second reading of this bill. I am very concerned about the procedure we are following. I certainly appreciate the exuberance and energy of the Attorney General. He is always quite concerned about handling legislation properly and swiftly and getting the job done well --
Ms. Gigantes: Except equal pay.
Mr. Warner: -- on most things, except equal pay.
However, in his exuberance and his enthusiasm I fear we are doing something that is really not a good idea. The House has agreed that we will deal with three bills at once. I do not think this is a particularly good way to proceed. I realize that the three bills are related to each other and share a common principle. If we pass Bill 11, for example, then Bills 12 and 13 are necessary; they are companion pieces of legislation. However, the normal route for us to follow is to deal with one bill at a time.
For example, now that we have grouped these three together, in the course of the debate we have discovered that we wish to deal with at least one of the three bills in committee outside the House and that we wish perhaps to deal with the other two bills in the House. However, we have put them together as a single entity, it would seem, by three-party agreement. By the time we conclude this second-reading debate, some wise individual is going to have to decide how to untangle the mess we have created, because one of the three bills needs to go outside the House while the other two remain, and yet we want them all dealt with tonight.
I respectfully submit that at the outset we should have dealt with Bill 11 first and, having completed second-reading debate, then with Bill 12 and Bill 13. We should then have dispensed with Bill 11 outside the House and dealt with Bills 12 and 13 individually here. However, we are in the midst of this little jumble, and I am sure some creative soul will figure out how we are going to untangle it.
8:40 p.m.
Obviously, many of us are very pleased to see the principles of Bills 11, 12, and 13 come forward. It is a welcome and necessary step towards equality between the sexes in our province. It is one many people have contributed to over the years.
In particular, I wish to pay tribute to an individual who spent quite a bit of time in research and a fair bit of time in court on the issue of the Change of Name Act. Carol Ateah is a lawyer for Scarborough Community Legal Services who spent quite a bit of her time attempting to bring about the change we see before us. She is very pleased to see the bill come forward because in part it was her efforts, along with those of many others, that helped bring this legislation forward.
At the same time there are many others, including the people who work in the Attorney General's ministry who put the bill together under the previous administration and again under this one. Naturally, they deserve credit as well.
As do other members of the Legislature, I wish to see these bills go forward as quickly as possible. I urge the Attorney General to find some compatible way to separate Bill 11, get it to committee quickly, dealt with and back here. As my colleague has mentioned, while the items are arguable, they are worthy of being debated. We deserve that opportunity, and so do the people of Ontario.
Mr. Speaker: The member for St. George. [Applause]
Ms. Fish: Did I see the Attorney General applauding recognition of the member for St. George.
Hon. Mr. Scott: It is always great to hear the member give a short speech.
Ms. Fish: My goodness. I am glad to see he is cheerier than on occasion at committee.
I am very pleased to rise in support of all three bills. Like my colleague the member for Oakville, I believe the proposed changes are very much in keeping with today's society. They afford an advancement in recognition not only of the changes in society but also of our views to provide flexibility and sensitivity in handling things that are rather important to individuals, families and family units as a whole.
I am very pleased and proud to have been associated with the formulation of this legislation as it was originally launched under the previous government. I was very proud to have been a member of the executive council that brought forward the legislation in its initial form.
In giving his careful thought to changes of this sort, I hope the Attorney General will continue to afford a sensitivity to individual needs within our society and explore ways to ensure the court procedures, administrative procedures and requirements we put people through are regularly reviewed, streamlined, sensitized and, one hopes, made simpler for all of us in a society that is ever more complex.
I feel this is particularly important, but not for the usual reasons. Many of these concerns about vital statistics or a change of name come up often when one points to a growing trend of common law relationships or a general North American pattern that speaks to changes in the relationships between men and women in our society. Those are very important reasons for bringing forward this legislation and for speaking appropriately to changes we know have been taking place in our society.
I believe we should be very proud, and I am sure all members in this chamber are very proud, that our society has changed dramatically in other ways as well. It has changed dramatically, in the last generation in particular, with the numbers of people who have come from around the world from a variety of different traditions and languages, people who bring with them an enriching opportunity to our society. Among other things, that affords a challenge to those who have been here before as much as it does to those who arrive new to our shores.
In considering the relationship between the state and the individual, every time we can encourage people to participate in our society and make the decisions that govern their lives and the lives of their families, and reinforce the very positive concept so important in Ontario's tradition, which is that authority is there to be of help, not to be fearful of or to move away from; and every time we are sensitive to streamlining a procedure and making it simpler; we are responding to all our people.
In particular, we are responding to those who may be in third-language groups, to those who have come from regimes where authority was something to be feared, to those who find themselves in a circumstance where they are rebuilding their lives and putting down new roots for their families. They carry with them a concern about the extent to which they should look at exercising their rights and opportunities within our society.
I realize that changes in vital statistics, changes in name and changes in the circumstances for children may seem in many respects a small contribution in response to the overall thrust of ensuring that authority within our society is authority that is helpful and not authority that is oppressive. I believe, however, that if we have that theme in our minds at all times, we will be making very steady progress; and that if we make it in this area, we can make it equally in a variety of other areas.
It is for a combination of many reasons -- a return to some of the fundamental principles in our society, principles of opportunity for some freedom of choice, principles that afford a human and compassionate side to the procedures and requirements we put in front of people, converting them rather into opportunities for individual decisions -- that I am very pleased this evening to be supporting all three of these bills.
On the small matter of the way in which three bills being considered at once can be dealt with, I am sure the solution is as obvious to the Attorney General as it is to me. We will simply have all of them go together to the standing committee on the administration of justice.
Hon. Mr. Scott: I thank the honourable members who participated in the debate and who have joined in the support of these bills, particularly the member for Brock (Mr. Partington), the member for St. George and the member for Ottawa Centre (Ms. Gigantes). I have left out the member for Oakville and the member for Scarborough-Ellesmere (Mr. Warner) because I want to deal particularly and specially with the procedural observations they made.
Let me begin by saying that if I had understood there to be any rule or procedure that prevented the request for unanimous consent as I made it, I would have honoured the rule. Of course, there is no such rule, and it was open to any member who felt that in any sense his or her privileges were offended by the request simply to refuse it.
8:50 p.m.
The member for Oakville is an old friend of mine and a distinguished colleague in the profession. A mere six months of this exercise in opposition has made him inordinately prickly. I counsel him to take lunch at the earliest opportunity with, let us say, my colleague the Treasurer (Mr. Nixon), who has experience of opposition and who can help him to devise methods to get through a decade or two in his present seat with good humour.
Mr. Foulds: The Treasurer's good humour only arose when he went to that side of the House.
Hon. Mr. Scott: I will be coming to the member for Port Arthur (Mr. Foulds) in a minute.
I want to make it perfectly clear that in my second bill in this House, I did not intend to overrule, as the member seems to think I did, some 400 years of parliamentary procedure. That was not intended. His response is rather like the response that the descendants of the Duke of Buckingham made when the reforms were instituted by Cromwell in the Long Parliament.
I am not surprised the member for Oakville would take such an archaic position on a matter of procedure. I am stunned the member for Scarborough-Ellesmere, as far as I knew heretofore a progressive force, should take the view that supports the same proposition.
Mr. Warner: The Attorney General has not heard my speech about the Magna Carta.
Hon. Mr. Scott: We are not talking about the Magna Carta. We are talking about parliamentary responsibilities, and the royalist view of procedure has been taken by the member for Oakville and the member for Scarborough-Ellesmere. I would not have done what I did had I known --
Mr. Foulds: The member for Oshawa (Mr. Breaugh) would say the Attorney General was being sneaky.
Hon. Mr. Scott: Yes; the member for Oshawa said I was being sneaky. My mother, who is in Florida, complained about that. I sated her in some fashion by pointing out that "sneaky" is the member for Oshawa's highest compliment.
I would not have done what I did if I had thought it presented any logical or practical problem. It creates no logical problem because each of the bills will be called separately, and the House leader may suggest to the House how each of them, in turn, will be dealt with.
So it will be clear, I emphasize what I said in opening: it is my proposal to recommend to the House that Bill 11, when it is called, go to the standing committee on administration of justice, and that Bills 12 and 13 go to committee of the whole House so they can be dealt with in that fashion. There is no procedural impediment to that.
I moved as I did because, as a relative newcomer, it struck me it was logical and practical that three bills, absolutely interconnected, should be discussed as one. The fact that the member for Scarborough-Ellesmere and the member for Oakville wanted to take three times the required length of time to discuss one issue is a matter that is upon their own consciences entirely.
Mr. Breaugh: It is not on the minister's conscience.
Mr. Foulds: Why is the Attorney General going on so long about this? Why is he talking so long?
Hon. Mr. Scott: It is good to see a little movement around here after 8 p.m.
I regret, and I want to emphasize that I will never again challenge the member for Oakville or the member for Scarborough-Ellesmere to deal with anything expeditiously or efficiently. I will concede from now on their right to deal with any issue at inordinate length and three times rather than once.
Having said that, I want to turn to the observations that have been made about the bill. I want to say that I accept and adopt, and wish I had said, what the member for St. George had to say about the spirit of the bill, because I think that is the important thing. This bill deals with matters that are very close to ordinary people, to families and to young children. I know we are all conscious of that as we proceed to deal with what is, for people like those, perhaps one of the most directly important pieces of legislation we will pass in these months. The spirit her remarks revealed is one I would like to adopt.
Let me come to the observations made by the member for Ottawa Centre, the new slave of the Canadian Bar Association. The recommendations of the Canadian Bar Association on the bill have been in our hands since November, I believe. They raise important policy questions that are inconsistent with the policy disposition which the bill represents. I do not agree with them as being central or particularly significant, but I am perfectly content -- indeed, as a matter of policy it is probably desirable, though again it will involve a delay -- that the matter go to committee because, as honourable members know, I do everything I can to please and pacify my critics on these important matters.
Ms. Gigantes: Except equal pay.
Hon. Mr. Scott: We are going to satisfy the member on equal pay too.
I note particularly the observation of the member for Ottawa Centre that the registrar of vital statistics is referred to in the possessive as "his" in the legislation. I note that difficulty. The Interpretation Act, which has always been relied on, takes care of that pronoun, though no doubt in due course an appropriate amendment can be made.
I note the rather facetious suggestion by the member for Oakville that Richard A. Bain may utilize the provisions of this legislation to apply to change his name to Richard A. Bain, QC. Indeed, it had not occurred to me until now, but that is probably the best reason this bill should go to committee and not be available for enactment for a period of time. I am sorry this is the kind of application the member for Oakville could not himself advance with justification.
In summing up, I want to thank the honourable members for their co-operation. I apologize for the breach of historical etiquette. I countenance that it will not occur again unless it is necessary to do it, and I thank the individual members and the parties they represent for their support of this significant legislation.
Mr. Speaker: The motion was placed for the second reading of these three bills. I appreciate the comments made by many members on this procedure. However, I will place the motion on each bill separately; it will give the members the opportunity to fulfil their duties through standing order 56, which allows them to send these bills to committee, to standing committee or to third reading.
Hon. Mr. Scott has moved second reading of Bill 11.
Motion agreed to.
Bill ordered for standing committee on administration of justice.
Mr. Speaker: Hon. Mr. Scott has moved second reading of Bill 12.
Motion agreed to.
Mr. Speaker: Shall the bill be ordered for committee of the whole House?
Mr. O'Connor: On a point of order, Mr. Speaker: May I address that point?
Mr. Speaker: Under which order?
Mr. O'Connor: My friend has indicated that he prefers the bills go to the committee of the whole House. I think there is a valid and substantive reason that this should not occur, and I would like to address that point. I do not know under the procedures whether I can do it now or otherwise.
Mr. Speaker: It really is not proper to address that. I refer to standing order 56 because included in that standing order is the provision that if 20 members rise in their place, the bill automatically will be sent to a standing committee.
The Attorney General has recommended that this be sent to the committee of the whole House. Agreed?
Some hon. member: No.
Mr. Speaker: The bill will go to --
An hon. member: Justice.
9 p.m.
Mr. Speaker: Twenty people have to stand. I do not see 20 members standing in their place. Bill ordered for committee of the whole House.
Mr. Speaker: Hon. Mr. Scott has moved second reading of Bill 13.
Motion agreed to.
Bill ordered for committee of the whole House.
House in committee of the whole.
CHILDREN'S LAW REFORM AMENDMENT ACT
Consideration of Bill 12, An Act to amend the Children's Law Reform Act.
Sections 1 to 3, inclusive, agreed to.
Mr. Chairman: Hon. Mr. Scott moves that the bill be amended by adding thereto the following section:
" 3a. Section 36 of the said act, as enacted by the Revised Statutes of Ontario, 1982, chapter 20, section 1, is repealed and the following substituted therefor:
"36(1) On application, a court may make an interim or final order restraining a person from molesting, annoying or harassing the applicant or children in the applicant's lawful custody and may require the person to enter into the recognizance or post the bond that the court considers appropriate.
"(2) A person who contravenes a restraining order is guilty of an offence and upon conviction is liable,
"(a) in the case of a first offence, to a fine of not more than $1,000 or to imprisonment for a term of not more than three months, or to both; and
"(b) in the case of a second or subsequent offence, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both.
"(3) A police officer may arrest without warrant a person the police officer believes on reasonable and probable grounds to have contravened a restraining order.
"(4) Subsections 2 and 3 also apply in respect of contraventions, committed after those subsections come into force, of restraining orders made under a predecessor of this section."
Hon. Mr. Scott: As I told the members of the House, and as members of the standing committee on administration of justice will know, this simply reflects changes that parallel provisions in the Family Law Act, section 46. It is in that sense a technical proposal.
Mr. O'Connor: I have a few remarks with respect to this bill. I refer to my previous attempts to make some comments during the brief time we were referring this matter to committee of the whole House. The point I wanted to make at that time was that as the Attorney General (Mr. Scott) correctly pointed out at the beginning of this evening, these three bills are closely interrelated and interlinked. They should be and were upon agreement of the House debated on second reading at one time. They are that closely interconnected with each other.
The reason I felt all three should have gone to the same committee was a difficulty that the Attorney General perhaps did not anticipate, which now may arise because of dealing with it in this manner. Bill 11 is the most substantive of the three bills. It is the one for which the Attorney General has proposed 25 amendments and has delivered them to us. There will be considerable debate, discussion and amendments to Bill 11. Because the other two bills follow closely on and are complementary to Bill 11, further amendments may be required to those two bills as a result of having dealt with Bill 11.
If we now deal totally with Bills 12 and 13 at this stage, pass them through committee of the whole House and send them back to the House for third reading, without consent of the whole House we will not have the opportunity to effect possible amendments that will be required as a result of whatever happens to Bill 11 in the standing committee on administration of justice. I raise that for his consideration. I have no specific comments on the subsection under review.
I thank you, Mr. Chairman, for giving me latitude to discuss this matter when, perhaps quite properly, it was not in order at this time.
Ms. Gigantes: I will support the amendments that have been put forward by the Attorney General, but I will draw to the attention of members that Bill 12 is about change of names, vital statistics and the relationship of the Child and Family Services Act with those matters. The amendment before us, which will undoubtedly pass, is one which has a totally different source. It comes to us as a result of the family law legislation, with which we have now almost completed our dealings here in the Legislature, and which we cannot wait to be finished with and get out to the public that has been waiting for it.
I find it kind of strange that we are dealing with this kind of amendment in the context of this bill, and I would suggest to the Attorney General that in future, when he wants to make an amendment to a bill to accommodate changes we have made in another piece of legislation, he separate the two things. We really are mixing up the discussion here. Essentially, what we are dealing with in the amendment is a matter of preventing excesses that can occur on separation or the breakup of a marriage, the harassment that one partner may inflict on another and the need for reasonable and efficient enforcement methods to prevent such harassment.
I personally, as a member of the Legislature, do not like mixing up these different kinds of motions or throwing in an amendment to a bill simply because we have not had the Children's Law Reform Act before us. I think we are going to run into much the same kind of discussion when we get to Bill 7, and I suggest to the minister that from here on he take a look at the amendments coming forth in great rushes to him from eager staff and ask himself whether he really wants to incorporate every little bend and twist of legislative reform that has a piece of legislation X as an object when the sources are very different.
Mr. Warner: My colleague the member for Oshawa (Mr. Breaugh) has obviously vindicated the principle of the three bills neatly tied together as a package with a bow around them as, overall, an amendment to the Change of Name Act. That is a principle with which we agree.
The proposed amendment setting out section 3(a) has nothing to do with that principle, but we now have it before us. No one objects to it. It is a desired change in the law. It is something we wish to see. We would have been happy to have seen this introduced as an amendment to the Children's Law Reform Act, but this appeared to be a convenient opportunity to slip something in that had nothing to do with the principle of the bills with which we are dealing.
Having said that, we are pleased to support the amendment. I have one question, and it is designed to elicit a lawyer's response more than anything else. Not being a lawyer, it will be instructive to me.
I always have concerns when we allow police officers to operate without a warrant, and the operative phrase here is "reasonable and probable grounds." I would appreciate the Attorney General's opinion as to what "reasonable and probable grounds" should properly include in the amendment he has proposed.
9:10 p.m.
Mr. Chairman: Does the Attorney General wish to reply at this point?
Hon. Mr. Scott: Yes, to a number of points. First, the procedural objection raised by the member for Oakville (Mr. O'Connor) that launched this evening's endeavours was that somehow it was wrong, without consulting him, to present three bills as one.
That happened. Although I am advised by the Clerk of the House there is ample precedent for it, I apologize to the member if he felt offended by that process. His practical objection to what we did was that we would not be able to separate the bills in terms of their disposition; they would all have to go to either committee of the whole House or the standing committee on administration of justice. That is why he objected to it, and because he had not had notice of it.
We are past that stage and it is clear they did not all have to go one place. Now the objection is being advanced that there is something wrong with the House in committee of the whole dealing with a bill that may be impinged upon by a bill that is going to be dealt with by the justice committee. Surely that happens in legislatures every day, and there is nothing wrong with it.
If fundamental changes are made by the justice committee and upon report by this House in Bill 11, then certain parts of Bills 12 and 13 that have been passed may have to be modified or may be ineffective. There is nothing new about any of that. Let us not get carried away with the procedural difficulty that is presented.
My friend the bar association representative for Ottawa Centre makes the point that the amendment I proposed to Bill 12, section 3a, is somehow inappropriate because it is inconsistent with the balance of Bill 12 and raises a different matter. I think I have her objection.
The reality is that the balance of Bill 12 does deal with amendments made necessary by the Vital Statistics Act, but, as she will also know, what we are doing there is amending the Children's Law Reform Act to take account of changes we are making in the Vital Statistics Act. We also have to amend the Children's Law Reform Act to take account of changes we are making, which we have reported to this House, in the Family Law Reform Act.
What my learned friend seems to want is two separate bills in one session, each to amend the Children's Law Reform Act. That, to me -- and I may be a complete ninny -- makes no sense. Why have two separate bills to amend one act when we can have one bill with two sections to amend the same act? There may be some historical rationalization for that proposition, but if there is I have some difficulty understanding it.
Next time I will try to do better and, instead of presenting one omnibus bill, will seriously consider taking each section apart and giving each section its own bill, according to its subject matter, to meet the concerns of my honourable friend.
The royalist from Scarborough-Ellesmere asks what is meant in subsection 36(3) of the proposed amendment, which permits a police officer to arrest without warrant when he believes "on reasonable and probable grounds" that a restraining order has been contravened. That phrase "on reasonable and probable grounds" is a historic, traditional and well-understood phrase in which the police officer, the provincial judge, the justice of the peace or the superior court judge, whoever has to exercise the authority, is obliged to consider the evidence before him, the knowledge, the factual information he has, to measure whether that evidence reasonably justifies that there is a probability that an offence, or in this case, a breach of a restraining order, has occurred.
It is simply a section quite traditional in statutes which casts a burden of a relatively precise legal type upon a person to consider matters and make a determination at a certain level before acting. There is nothing novel in the language. It is the traditional language that is necessary, for example, before an information can be laid, and I do not think the member for Scarborough-Ellesmere (Mr. Warner) will, on reflection, find anything unusual about it.
Ms. Gigantes: Very briefly, I feel a grave responsibility to remove any suspicion by the Attorney General that any member of this Legislature considers him a ninny. That is not the case, and I am sure you already know that, Mr. Chairman.
I was suggesting to the Attorney General that, while we are quite prepared to pass this amendment in conjunction with what is essentially another matter, because it does fit exactly with the needs of amendments that arise out of the family law bill, it is a kind of legislative manoeuvre, if I may call it that. There is nothing illegitimate about it except that each bill that comes before us is supposed to have a purpose.
The purpose of an omnibus bill is not to amend a given piece of legislation in 15 different ways unless that is the stated purpose of the bill. The purpose of this bill is to introduce consistency with the Change of Name Act, and that is what it says before it. It does not say that the purpose of the bill is to deal with all the necessities that arise because of the family law bill.
I have no particular objection to this amendment in this bill, but I would suggest to the Attorney General that he be careful of this kind of manoeuvre. I think it is going to cause problems when we get to Bill 7. I am not talking about the past; I am not talking about the present. I am asking him to be careful about this kind of thing in the future.
Motion agreed to.
Sections 4 and 5 agreed to.
Bill, as amended, ordered to be reported.
VITAL STATISTICS AMENDMENT ACT
Consideration of Bill 13, An Act to amend the Vital Statistics Act.
Mr. Chairman: Are there any questions, comments or amendments to the bill, and if so, to what sections?
Hon. Mr. Scott: I have amendments to subsections 6(9) and (10), subsection 10a(5a) and subsection 10b(2) of the act as set out in section 2 of the bill. Then I propose the addition of sections 2a and 2b; an amendment to subsection 3(1); the addition of a section 3a; the addition of a section 5a; an amendment to subsection 7(2) and the addition of a section 11a.
Section I agreed to.
9:20 p.m.
Ms. Gigantes: I indicated earlier a problem with subsection 10a(I); and in subsection 12(2) there is some wrong lettering. I would also like to see whether we can clean up the question of whether a man or woman necessarily is going to be registrar general and receive people in his or her office. That has to do with the amendment to section 5a suggested by the Attorney General.
On section 2:
Mr. Chairman: Hon. Mr. Scott moves that section 2 of the bill be amended by striking out "sections 12 and 13" in the first and second lines and inserting in lieu thereof "section 13."
Motion agreed to.
Mr. Chairman: Hon. Mr. Scott moves that subsections 6(9) and 6(10) of the act, as set out in section 2 of the bill, be struck out and the following substituted therefor:
"(9) Where a statement completed by only one parent of the child or by a person who is not the child's parent is registered, any of the following persons may apply to the registrar general to amend the statement: (1) The child's mother and father together; (2) the child's mother, if the father is incapable or unacknowledged by or unknown to the mother; (3) the child's father, if the mother is incapable.
"(10) The registrar general shall amend the registration accordingly.
"(11) If one parent applies to amend the statement without the other because the other parent is incapable, a statutory declaration of the fact shall be attached to the application.
"(12) On receiving a certified copy of an order under sections 4, 5, or 6, child's parentage, of the Children's Law Reform Act respecting a child whose birth is registered in Ontario, the registrar general shall amend the particulars of the child's parents shown in the registration, in accordance with the order."
Hon. Mr. Scott: The purpose of these amendments is perhaps clear from the notes I have sent to the critics. Subsections 9 and 11 make provision for the case where the birth was originally registered by a nonparent and one parent wishes to amend the registration. Subsection 12 clarifies how the registrar general is to amend the registration where an order is made under the Children's Law Reform Act.
Mr. O'Connor: I have one small point and a question for the Attorney General. Subsection 11 provides that if one parent is incapable of statutory declaration, that fact shall be attached to the application. Should there be some indication as to by whom that declaration should be made and perhaps the form it should take? As it is now, it is left open, and since there is no restriction on it, it is anticipated the other spouse might be the one who is capable of making that statutory declaration.
I see that as a somewhat dangerous situation in a case where, for nefarious reasons or for less-than-honourable reasons, a spouse might make that declaration to achieve his or her purpose under the act. Perhaps there should be a restriction against the other spouse or a restriction providing that it has to be a competent medical practitioner or somebody who is capable of making that decision or judgement.
Hon. Mr. Scott: The practical difficulty is that it may not always be possible to tell who is going to be available to make the application. I am conscious of the concern the honourable member has, that it may be used, as he seems to suggest, in some fraudulent way to obtain the change. If that happens, the entire proceeding can be promptly set aside and will be of no effect whatever.
The problem is that the statutory declaration is a document in solemn form and would normally be justification of proving the fact. What is the fact? -- that the parent is incapable.
If I may respectfully say, the concern of the member is cautious in the extreme and might create more difficulties than it would resolve.
Mr. O'Connor: I would just make a further comment that the word "incapable" is one that is not defined in the act. It is subject to many interpretations and is a subjective call. If it is left open for anyone in society to be able to make that subjective call, there is some potential. With a very minor amendment requiring that it be done by someone such as a medical practitioner, we may resolve that problem.
Hon. Mr. Scott: I want to be sensitive to the request, but we are dealing with an attempt to simplify procedures in order that it can be done by ordinary people without lawyers, but with a reasonable amount of solemnity so that it will not be a simple formality. What is required here is a statutory declaration that one of the parents is incapable. That is a judgement most parents are capable of making. It would be a misfortune if it were necessary for them to go out and get a doctor or doctors to make this simple declaration.
If my friend is concerned about the chance that the determination of incapacity will be wrong in the end or will be done for some improper purpose, I remind him that if it is done in either of those circumstances, the whole proceeding can be set aside and is of no effect. Also, the person who did it is guilty of a criminal offence for having made a false statutory declaration.
We lawyers are anxious to close every gate and every avenue, but it seems dangerous to be too punctilious in legislation of this type. We simply create machinery that ordinary people are not able to work without our almost miraculous, though sometimes expensive, intervention.
Mr. Chairman: Shall Hon. Mr. Scott's amendments to subsections 6(9) and 6(10) of the act, as set out in section 2 of the bill, carry? Carried.
Hon. Mr. Scott moves that section 10a of the act, as set out in section 2 of the bill, be amended by adding thereto the following subsection:
"(5a) The election shall be accompanied by all birth certificates of the child that are in the possession of the person making the election."
9:30 p.m.
Hon. Mr. Scott: This is the same change as in the Change of Name Act.
Mr. O'Connor: I make a brief comment to suggest this makes the point I attempted to make earlier as to why we should not proceed with this bill at this time. If this section happens to be changed by the Change of Name Act, this is complementary to it. It will have to come back and have the same change made here. I know it can be done, but it would have been simpler to do it all at once.
Mr. Chairman: Shall Hon. Mr. Scott's amendment to subsection 10a(5a) of the act, as set out in section 2 of the bill, carry? Carried.
Hon. Mr. Scott moves that subsection 10b(2) of the act, as set out in section 2 of the bill, be amended by striking out "new" in the third line.
Hon. Mr. Scott: I do not think any explanation is required for this one.
Mr. Chairman: Shall Hon. Mr. Scott's amendment to section 2, subsection 10b(2), carry? Carried.
Hon. Mr. Scott moves that the bill be amended by adding thereto the following sections:
"2a(1) Subsection 12(1) of the said act is amended by striking out `under subsection 6(1)' in the 11th and 12th lines and inserting in lieu thereof `by section 6.'
"(2) Section 12 of the said act is amended by adding thereto the following subsection:
"(3) This section does not apply to a birth registered after the coming into force of section 2 of the Vital Statistics Amendment Act, 1985.
"2b. Subsection 14(1) of the said act is amended by striking out `furnish particulars of the birth under subsection 6(1)' in the second and third lines and inserting in lieu thereof `certified it under section 6.'"
Hon. Mr. Scott: I will just note, as I have noted on the comments I have provided to the critics, that the act requires disclosure of the mother's marital status. Section 12 permits parents who are unmarried at the time of the child's birth to reregister as married if they intermarry. Hundreds of people reregister each year, so the provision should be retained for births that are already registered.
Mr. Chairman: Shall Hon. Mr. Scott's amendment to add sections 2a and 2b carry? Carried.
Section 2, as amended, agreed to.
On section 3:
Mr. Chairman: Hon. Mr. Scott moves that subsection 3(1) of the bill be struck out and the following substituted therefor:
"(1) Subsection 24(2) of the act is amended by striking out `in lawful wedlock' in the 15th line."
Hon. Mr. Scott: It is only to be noted that the section is not necessary under this legislation.
Mr. Chairman: Does the motion of Hon. Mr. Scott on subsection 3(1) carry? Carried. Section 3, as amended, agreed to.
Mr. Chairman: Hon. Mr. Scott moves that the bill be amended by adding thereto the following section:
" 3a. Section 26 of the said act is repealed and the following substituted therefor:
"26(1) Upon receipt of a document that satisfies the registrar general that the name of a person whose birth is registered in Ontario has been changed in accordance with the law of the province or territory of Canada or of the foreign state in which the document was made, the registrar general shall register the document and note the change of name on the person's registration.
"(2) If the person's marriage is registered in Ontario, the registrar general shall also, at the person's request, note the change of name on the person's marriage registration.
"(3) Where a change of name has been noted on a birth or marriage registration and application is made for a birth or marriage certificate, the certificate shall be issued as if the registration has been made in the name as changed.
"(4) Upon receipt of a document that satisfies the registrar general that a document effecting a change of name has been annulled in accordance with the law of the province or territory of Canada or of the foreign state in which such documents were made, the registrar general shall register the document and note the annulment on the person's birth registration, on the document effecting the change of name and, if the change of name that is annulled is noted on the person's marriage registration, on that registration.
"(5) Every notation made under this section shall be dated and initialled by an officer designated by the regulations."
Hon. Mr. Scott: The purpose is purely technical because the amendments will not automatically be made without a section such as this.
Motion agreed to.
Sections 4 and 5 agreed to.
Mr. Chairman: Hon. Mr. Scott moves that the bill be amended by adding thereto the following section:
"5a. Section 40 of the said act is amended by adding thereto the following subsection:
"(4) Upon application and upon payment of the prescribed fee, any person may obtain from the registrar general a change of name certificate in respect of any change of name of which there is a registration, made after the coming into force of the Vital Statistics Amendment Act, 1985, in his or her office."
Hon. Mr. Scott: This incorporates the change that the member for Ottawa Centre (Ms. Gigantes) requested. It should be noted that without this section, the present act does not make provision for copies of change-of-name certificates.
Ms. Gigantes: I think that is just terrific.
Mr. Warner: I am a bit disappointed that the Attorney General has not moved all the amendments for all the bills together.
Motion agreed to. Section 6 agreed to.
On section 7:
Mr. Chairman: Hon. Mr. Scott moves that subsection 44(4) of the act, as set out in subsection 7(2) of the bill, be amended by striking out "names" in the second line and inserting in lieu thereof "name."
Hon. Mr. Scott: This is so all the names will be kept on file --
Mr. Timbrell: What is your hurry?
Hon. Mr. Scott: I beg your pardon?
This is so all the names will be kept on file, but will not be obliged to be given out unless it is required.
While I am here, I might comment to the member for Scarborough-Ellesmere (Mr. Warner) that the reason I do not move all the amendments at the same time is that it would be logically unsatisfactory to deal with them all at once, whereas it is not logically unsatisfactory, as we have seen, to deal at once with the principle of three bills that are connected.
Motion agreed to.
Section 7, as amended, agreed to.
Sections 8 to 10, inclusive, agreed to.
9:40 p.m.
Ms. Gigantes: I am quite confused and if the members will apply a little sympathy to my case, they will understand why. The numbering in this bill to amend the Vital Statistics Act is awfully confusing. Sections 1 and 2 are on page 1 and section 3 is on page 6. In the meantime, we have numbering and lettering that are discernible -- with my 43-year-old eyes plus glasses -- to be no different at all in terms of size, weight of lettering or anything.
I indicated earlier that I wished to raise a question concerning what I called section 10a; however, it is in truth section 2 of the bill. I do not know quite what the Chairman can do to help me except get permission to go back so I might raise a question about that section.
Mr. Chairman: Which page?
Ms. Gigantes: Page 5. It is section 2 of the bill, section 10a of the act.
Mr. Chairman: Do we have unanimous consent of the committee to revert to section 2 of the bill, section 10a of the act? Agreed? Agreed to.
On section 2:
Ms. Gigantes: I appreciate this kindness. The question I wished to raise had to do with the right of a child who might be younger than 12 to be consulted about a change of his or her name. It seems to me that children under the age of 12 could very well be considered to have some right to be consulted about such a change and to give permission for a change of name.
I have no idea of the psychology of children and names -- I am no expert in the area -- but it seems to me that an eight-year-old in many cases would feel a pretty strong attachment to a name, particularly if it involved a change of name to that of one or other of the parents once the parents had separated. It seems to me the child would want to be consulted. I ask the Attorney General why the proposed age here is 12 and whether he does not think that might bear some review.
Hon. Mr. Scott: Can I ask the honourable member whether she is referring to subsection 10a(1)?
Ms. Gigantes: I am indeed.
Hon. Mr. Scott: The problem presented is, at what age shall a child have the right not to be consulted? One can consult a child of any age, but at what age shall a child have the right to be the determining factor in whether his or her name should be changed? One has to pick an age. One might pick five, 12 or eight. A difficult and probably impossible policy choice has to be made. The policy choice of a statute is 12, which means under that age the child will not have the right to prevent his or her change of name and will not have the right to institute a change of his or her name on his own.
I think 12 is just about right. I cannot see seven-year-old children initiating changes of names on their own behalf, and frankly I cannot see that it is appropriate that seven-year-old children be entitled to prevent their parents from changing not only the parents' surname but also the child's surname.
Ms. Gigantes: Subsection 10a(1) of the act does not deal with the initiation by the child of a change of name. It deals only with the question of the person who has legal custody of the child initiating a change in name and says that if the child is under the age of 12, essentially the child has no choice about it. It seems to me that is a pretty high cutoff point.
I do not think the Attorney General is dealing directly with that point when he confuses it with the question of whether the child shall initiate the application for a name change. That is not what I am raising here.
Is there any possibility for a child whose name is changed to seek any other avenue under law to maintain his or her former name? The Attorney General seems to me to be treating it a bit lightly, but I think an awful lot of children might take very serious objection to having their names changed, and I cannot see why they should not be listened to.
Hon. Mr. Scott: I am not taking it lightly at all. We are talking about the same thing. The situation is this, as the section makes clear: If a couple with children decide to change their surname and wish to change the surname of their children at the same time, if the child is 12 or over, the consent of that child must be obtained or the child will have to be taken to court as a respondent to get an order dispensing with his consent. A child 12 or over is given the authority, in effect, to resist the change of his last name and to run the risk that a judge will determine that his consent under this act should be dispensed with.
What my friend is suggesting is that the age should be reduced to what? Eight? Seven? Six? Nine? If it is reduced to eight so that the section reads "under the age of eight years," it will mean that any child of eight whose parents decide to change their name will have ipso facto the right to refuse to change his own name at the same time, and it will be possible to remedy this, if he or she resists, only by bringing an application in the court in which the child is a respondent -- he will be represented, perhaps, by the official guardian -- to determine whether his consent should be dispensed with.
The issue, it seems to me, is what is the appropriate age at which the interests of the child in a matter as important and as significant as a child's name should be governed by the parents. Consideration has been given to this. There are relatively few guidelines. It has been decided quite arbitrarily that 12 is the age at which the child should have the right to refuse his or her consent to the name change and that under 12 the child should be governed by the wishes of its parents. I frankly have no difficulty with that proposal at all.
Mr. Foulds: I am not learned in the law, nor am I learned in name identification, but it does seem to me that my colleague the member for Ottawa Centre raises some valid concerns. The child, whether he is eight, nine, 10, 12 or 13, is not given any veto right over his parents' change of name or his legal guardians' change of name. However, the member makes a very valid point that a 10-year-old, an 11-year-old or even a seven-year-old may have a very strong attachment to his own name, the name he has learned to be identified by, the name he has grown up with and so on.
9:50 p.m.
I think of my own 11-year-old, who identifies very strongly with his own name. If I should for political reasons wish to change my name to Scott, for example, he would be offended, and I think rightly so. I think he should have the right to veto my wish to change his name from the one he has grown up with and learned to live with for 11 years.
The Attorney General throws back the tough question; I admit that. At what age does one make the cutoff? I do not have an easy answer for that, but I think one has to admit my colleague has a valid point. Is there an age limit in the child welfare legislation?
Hon. Mr. Scott: The age of 18 is the one commonly used.
Mr. Foulds: Can the Attorney General tell us whether there is any logic to using the age of 12? He gave it such a deification earlier in his argument. Is there any rationale or reason?
Hon. Mr. Scott: I am advised there is other legislation dealing with medical consents and treatment which fixes 12 years of age, but it is arbitrary. To be frank, the fact that 12 has been selected arbitrarily in some other act does not make it less arbitrary because it is selected once again; it remains an arbitrary selection.
All I can tell the member is that it has been utilized in other legislation; but so has 18.
Mr. Foulds: So has 19.
Hon. Mr. Scott: Yes.
Mr. Morin-Strom: I also rise to support the concerns of the member for Ottawa Centre on this issue. I have a child aged six at this point, just about to turn seven, and she has a very clear identity as to what her name is. In the case of a child in my daughter's situation, if I were to propose to change her name, I believe she would have an identity problem with that.
Although I am not a psychologist or a psychiatrist, I think there could be problems with the child in the case where one parent who may have control of the child wants to have that child change his or her name. I think the child's consent should be required at an age much lower than 12. if I were to suggest an age, I would suggest six.
I think the Attorney General has not looked at what may be the ramifications on the psychological wellbeing of the child of forcing a name change against the consent of that child. I hope the Attorney General will reconsider and lower the age of consent in this case.
Hon. Mr. Scott: I simply say I am very sensitive to the concerns my honourable friends have expressed, except for the suggestion of age six made by the member speaking last, which seems to me more arbitrary than age 12 because there is no statute of which I am aware in which age six is used. We are forced to make a profound sociological judgement based on our own experience.
Mr. Foulds: Did the minister say "sociological judgement"?
Hon. Mr. Scott: That is what it is, because it is an attempt to measure the social impact of the deprivation for a child of a given age of the right, as my honourable friend puts it, to be consulted or to withhold his consent with respect to a change of name and to require his parents to apply to a court and have notice served upon him to dispense with his consent. I do not think the interests of a child require that kind of exercise.
Frankly, I am offended at the prospect that the member who spoke last would consider undertaking this kind of litigation with respect to one of his children. I would presume, if my friend is right about his view of the child, he would be perfectly content to allow a six-year-old child to apply to change his or her name. If the child is --
Ms. Gigantes: There the minister goes again. That is a red herring.
Mr. Foulds: That is a red herring and the minister knows it.
Mr. Morin-Strom: The minister does not take the interests of the children into account.
Hon. Mr. Scott: The member cannot have it both ways. If he is going to --
Mr. Foulds: That is a lawyer's argument.
Mr. Chairman: Order. You will have your chance to make comments.
Hon. Mr. Scott: It is not an argument at all if it is going to be interrupted, but the point of it is that --
Mr. Foulds: It is not even a point.
Hon. Mr. Scott: The member has not even heard it yet. He should listen once in a while and maybe he will hear it. He may not agree with it when it is over, and then he will say so. However, the point --
Mr. Gillies: He may not understand it.
Hon. Mr. Scott: He may not understand it either, but he probably will because it is a very simple argument. If we are talking about consent of the child, what we are talking about, as the member who spoke last has indicated clearly by his remarks, is the extent to which a child should control his name.
If the child, having been given a name by his mother, should have the right at age six to prevent the mother from changing that name, then we are in substance saying that by age six the child has developed a proprietary right with respect to his name. If he has a proprietary right with respect to his name, we must concede him the collateral proprietary right to change it, as a matter of principle.
Ms. Gigantes: No.
Mr. Foulds: The minister is taking the argument to a logical extremity that is absurd.
Hon. Mr. Scott: I anticipate that the New Democratic Party will probably vote against this amendment.
Mr. Foulds: The minister may push us to it.
Mr. Warner: No, I am sure he did not mean to be provocative.
Interestingly, the actual number the minister selected does not concern me so much. I can live with 12. I do not think it is unreasonable. Neither do I think eight is unreasonable. I think the problem is the approach. What we have decided here is that it will be an either-or situation.
The Attorney General rightly points out that it is an arbitrary choice, and he chose a number. What disappoints me is that rather than choosing a number, it might have been more helpful to have chosen, instead of the either-or situation, a third-party opportunity that is flexible and would allow the advantage of taking the concerns of the individual child into account, given all the circumstances, without having to refer to an absolute age. In some instances a child of eight would have that opportunity; in other instances it would be a child of 12.
Instead, the minister has chosen a cutoff point, and the moment a cutoff point is chosen, there has to be a determination of an absolute age. The minister, in his wisdom, has chosen 12. Some will argue it should have been 13 or 11 or eight. I think the process is wrong. The minister has set up this either-or situation, which is not as helpful as allowing the opportunity for an impartial third party -- a judge or a mediator or whoever, but an independent third party -- to be able to assess the situation and to be of assistance to both the child and the parents.
Having said that, we are faced with the fact that the actual amendment specifies an age. The minister has chosen 12, and I do not think it unreasonable. As I say, I do not think age eight is unreasonable either, but that is in the abstract. When we are dealing with specific situations, in some cases age 12 may not be sufficient for some children; in others age eight will be. It becomes very difficult because the minister has chosen an arbitrary age. I suppose he is better to err on the side of caution than not, and 12 is probably okay.
10 p.m.
Mr. Chairman: Are there any other questions or discussions regarding section 10a on page 5 of the bill? Shall section 2 of the bill, as amended, carry?
An hon. member: No.
Mr. Chairman: Did I hear "no"?
Ms. Gigantes: It has already been carried.
Mr. Chairman: We reopened it.
All those in favour will please say "aye." All those opposed will please say "nay." In my opinion the ayes have it.
Section 2, as amended, agreed to.
Mr. Chairman: Shall section 11 on the last page stand as part of the bill?
Mr. Warner: Can we back up to page 7? Before we reopened section 2, we started going through the sections that have all the money items in them.
Mr. Chairman: Will the member please stand?
Mr. Warner: I was standing; that is the problem. I agree with my colleague about the numbering. I think it is terribly confusing and it has created a few problems.
Mr. Chairman: I agree.
Mr. Warner: Inflation has struck through sections 8, 9 and 10 and all of us have a great deal of concern about inflation. Can I have some explanation as to why these amounts have been multiplied by 10 and four respectively?
Mr. Chairman: Since they have been carried, do we have unanimous consent to reopen sections 8, 9 and 10?
Mr. Warner: I think they were carried because we did not understand the numbering.
Hon. Mr. Scott: I have learned my lesson about unanimous consent, but I will grant it for my part.
Mr. Chairman: Do we have unanimous consent to reopen sections 8, 9 and 10? Agreed to.
On sections 8 to 10, inclusive:
Mr. Warner: I want an explanation of the inflation factor involved in each of those sections.
Hon. Mr. Scott: These are efforts to increase the fines to levels that we regard as appropriate, bearing in mind the inflation that has occurred since the act was last amended in this particular.
Mr. Warner: When was it last amended?
Hon. Mr. Scott: I do not know. I can find out if my friend wants me to.
Mr. Warner: I am curious about subsection 8(1), where the original amount of $100 is multiplied by 10. I am curious as to when the $100 was set and whether we are justified in multiplying it by 10; I think that is a reasonable request.
Hon. Mr. Scott: I can assist my friend by telling him that the amendments were probably made between 1970 and 1980. That was the last amendment to the statute.
Mr. Warner: I see. One could say that if the $100 was set in 1970, then by 1985 or 1986 to multiply it by 10 is reasonable. On the other hand, if it was set in 1980, to multiply it by 10 five years later is probably not reasonable. However, I am satisfied that the new amounts are reasonable levels for fines to be set. I am always curious when I see inflation striking.
Sections 8 to 10, inclusive, agreed to.
Section 11 agreed to.
Mr. Chairman: Hon. Mr. Scott moves that the bill be amended by adding the following:
"11a. The said act is amended by adding thereto the following section:
"54a(1) No proceeding shall be commenced in respect of an offence under this act more than one year after the deputy registrar general becomes aware of the facts on which the proceeding is based.
"(2) A statement as to the time when the deputy registrar general became aware of the facts on which the proceeding is based, purporting to be certified by the deputy registrar general, is, without proof of that person's office or signature, evidence of the facts stated in it."
Motion agreed to.
On section 12:
Ms. Gigantes: If we follow what we are doing with subsection 12(2), we will realize that the clause added in subsection 12(2) should be clause 55(t). If the effect of subsection 12(2) is to remove clause 55(0), then the result should be that subsection 12(2) will add clause 55(t). I am sure that will be straightened out when they are reprinting the bill.
Hon. Mr. Scott: When the bill is passed, the legislative counsel takes care of any renumbering that is necessary. I frankly cannot say at this hour whether the member for Ottawa Centre is once again right or not.
Mr. Chairman: Does the Attorney General wish to ask legislative counsel?
Hon. Mr. Scott: My understanding is that it is usually done when the bill is passed in order to get sequential numbering. If that is not the case, I will inquire.
Mr. Chairman: Is the member satisfied with that explanation?
Ms. Gigantes: I think that will do.
Hon. Mr. Scott: I am advised by legislative counsel that the point made by the member is not right, but that numbering requirements and consistency of numbering are arranged by legislative counsel when the bill is passed, if there are any inconsistencies.
Section 12 agreed to.
On section 13:
Mr. Warner: While it is customary for the date to be announced by the proclamation of the Lieutenant Governor, does the Attorney General have a target date on which he proposes to have this bill and the other two proclaimed?
Hon. Mr. Scott: I think it would be proclaimed when Bill 11 gets out of the committee to which it has been consigned and is reported back. I think it would be in the interests of everybody to proclaim them on the same day.
Mr. Warner: The Attorney General knows this will be a very speedy process with all the co-operative help that is available. Once Bill 11 is finished in committee, it is then his intention to have the three bills proclaimed immediately, and they will come into force in our courts very shortly. Is that right?
Hon. Mr. Scott: That is not what I said. I said there would be no point in proclaiming this bill or Bill 12 until such time as Bill 11 is out of the committee and given third reading by the House. In other words, that will be the earliest date at which they can be proclaimed.
Ms. Gigantes: Does the Attorney General anticipate any reason for delay in proclamation once we get Bill 11 out of committee and back into the House?
10:10 p.m.
Hon. Mr. Scott: I do not anticipate any, but then it was my wish that they all be passed tonight. It was the wish of the member for Ottawa Centre that one of them be sent to committee.
Section 13 agreed to.
Section 14 agreed to.
Bill ordered to be reported.
On motion by Hon. Mr. Scott, the committee of the whole House reported two bills with certain amendments.
Motion agreed to.
The House adjourned at 10:11 p.m.