CONTENTS
Tuesday 9 April 1991
Child and Family Support Statute Law Amendment Act, 1990, Bill 17 / Loi de 1990 modifiant les lois relatives aux obligations alimentaires, projet de loi 17
Adjournment
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: White, Drummond (Durham Centre NDP)
Vice-Chair: Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
Chiarelli, Robert (Ottawa West L)
Fletcher, Derek (Guelph NDP)
Harnick, Charles (Willowdale PC)
Mathyssen, Irene (Middlesex NDP)
Mills, Gordon (Durham East NDP)
Poirier, Jean (Prescott and Russell L)
Sorbara, Gregory S. (York Centre L)
Wilson, Fred (Frontenac-Addington NDP)
Winninger, David (London South NDP)
Substitutions:
Elston, Murray J. (Bruce L) for Mr Sorbara
Hansen, Ron (Lincoln NDP) for Mr Fletcher
Mammoliti, George (Yorkview NDP) Mr Mills
Kwinter, Monte (Wilson Heights L) for Mr Poirier
Murdock, Sharon (Sudbury NDP) for Mr F. Wilson
Wessenger, Paul (Simcoe Centre NDP) for Mr Winninger
Also taking part: Sorbara, Gregory S. (York Centre L)
Clerk: Freedman, Lisa
Clerk pro tem: Decker Todd
Staff: Revell, Donald, Legislative Counsel
The committee met at 1538 in room 228.
CHILD AND FAMILY SUPPORT STATUTE LAW AMENDMENT ACT, 1990 / LOI DE 1990 MODIFIANT LES LOIS RELATIVES AUX OBLIGATIONS ALIMENTAIRES
Resuming consideration of Bill 17, An Act to amend the Law related to the Enforcement of Support and Custody Orders.
Reprise de l'étude du projet de loi 17, Loi portant modification des lois relatives à l'exécution d'ordonnances alimentaires et de garde d'enfants.
Section/article 3:
The Chair: I call the committee to order. We are dealing with the amendments which are on page 35 and 36 on the yellow pages, to which will be added a small amendment to the amendment that Mr Wessenger will read now.
Mr Wessenger: This is with respect to the motion that we were discussing yesterday.
Mr Elston: Just before you read that, could you recap what it says?
Mr Wessenger: I will recap after the --
Ms S. Murdock: Do you want to hear what happened yesterday? Nothing.
Mr Wessenger: Nothing. That is it.
The Chair: Mr Wessenger moves that the motion be amended by striking out the proposed subsection 3g(1) of the act and substituting the following:
"(1) Each of the parties to a support order shall give to the director notice of the termination of a support obligation under the order in the manner and at such time as may be provided in the regulations if the support order is filed in the director's office, or if a support deduction order has been made in respect of the support obligation."
Mr Wessenger: This amendment is made in response to a point raised by Mr Sorbara yesterday. It was a technical problem with the section that left out a situation where an order might not have been filed. We reworded it to refer to a support order as filed in the director's office, which corrected the problem because we formerly had the words "where a support order has been withdrawn."
The Chair: Any discussion on the amendment to the amendment, which we should probably call 36a inasmuch as it refers to 35 and 36?
Mr Sorbara: On a point of order, Mr Chair: We have not moved the amendment yet, have we?
Mr Elston: We just moved the amendment.
The Chair: It was stood down then brought back up today because of the amendment to the amendment as per your suggestion yesterday, Mr Sorbara. Any further discussion on 36a?
Mr Elston: Yes, because the wording is quite a lot different in many ways. Rather than having a couple of places that are covered by this it merely says -- it has two examples in the first one but there was an omission of a third. Now you have changed it so that each party must file a notice of termination. In other words, you have to have sort of consent, which means the relationship between the parties is one where if they are not getting along well together they are going to have to visit legal people presumably and get this thing filed. Is that right? They can do it separately or whatever but they certainly still have to come together to agree on this.
Mr Wessenger: I will let the counsel answer that.
Ms Pilcow: Subsection 3i(1) requires each of the parties to give the notice of termination and they do it individually when they come to know the circumstances which would justify termination of the order. Subsection 3i(2), if you look at the original draft, contemplates the circumstance where the parties agree and subsection 3i(3) where they do not agree. This just imposes the obligation on both parties to advise the director's office when they know that the order has been terminated. It may only be one of them who ever finds out or has the knowledge of the circumstances. The regulations are going to set out when the obligation arises and that obligation will arise when the circumstances are known.
Mr Sorbara: I really want to apologize for arriving late. I am actually here not as a member of the committee today because someone is subbing for me, and I appreciate that and I am going to be leaving soon. You will all be glad to hear that.
I do not know, and perhaps you can enlighten me, Mr Chairman, whether counsel or legislative counsel or anyone has given an explanation of how the new subsection 3i(1), which is an amendment to an amendment -- my goodness, I remember when Shelley Martel used to criticize us for hours when we were considering Bill 162 for making amendments to the amendments and now here on this simple little bill giving SCOE a few more powers we have to make an amendment to an amendment. But so be it, okay.
I raised a point yesterday and you were good enough to take it back and stand it down and take the point and bring forward a new draft. I guess this does it. I would like to study these words a little longer, and I probably will do that on my own time rather than bore you with an extemporaneous study of it. But from looking at it, it seems like you have solved the problem.
I do not know if you have solved this problem right the way through. In fact, as I looked at some other of your amendments I think you have made this mistake here, there and elsewhere in the act. The reason I think you have done it is because it is so inconceivable that you would even draft a bill that says you can have a support deduction order even though someone has signed a notice saying that he or she does not want you to enforce the support order. That is so silly, so inconsistent, so inappropriate that I tend to think the drafters, as they went through the act, did not realize they would be having to confront this inconsistency -- let's call it what it is, this stupidity -- without directing their minds in each occasion to the fact that existed.
I want to tell you the truth. I would have preferred if the parliamentary assistant and counsel of the ministry and the director or the director's representative and legislative counsel could have come back here and said: "The member for York Centre is right. We've got to get rid of this inconsistency in the act." I would not have minded, frankly, if you had said, "We are going to insist that all support orders be filed with the director." That, to me, is universality, and as a Liberal I understand the importance of universality in some instances. I do not think I would have objected to that as much as I object to what is here, which is a suggestion that you can get out of the support order -- that is, you do not have to file it -- and yet we are going to enforce a support deduction order.
I see that the Chairman is wrinkling his eyebrows a little bit, so I will get back to the --
The Chair: Are you on the amendment to the amendment, sir?
Mr Sorbara: Yes, I am. By the way, on this amendment and the termination, we have to get on with this stuff. I wonder if the parliamentary assistant will confirm with me that the branch is really working towards a 1 January implementation date for this. Can I get an answer to that?
Mr Wessenger: I think the branch is working for as early as possible.
Mr Sorbara: Paul, let's not be equivocal on this, because I --
Mr Wessenger: It is all going to depend on when the bill is in final form.
Mr Sorbara: No. I do not want to be insulted in that way. Yesterday I spoke with counsel for the branch who, in answer to an honest question from me about when you were planning to implement, gave the date of 1 January. And I understand that, because I brought a bill like this through the Legislature, and you have to be working towards an implementation date. Every branch of government does.
I do not mind taking the criticisms in the House from the Premier about what we are doing in this committee, but you have to be fair and upfront with me and tell this committee when you plan on implementing the bill. You cannot pretend that it all depends on how quickly you get it through this committee. That is unfair to us and it is inappropriate and I am offended by that. Just be upfront with me.
Mr Wessenger: I am not aware of the date of when it is going to be implemented.
Mr Sorbara: As the parliamentary assistant, you should be.
Ms S. Murdock: When the bill was introduced for second reading, it was mentioned that if all went well and it went through committee and it went through third reading, etc, they were planning implementation by late fall. That was what the plan was. Mind you, that was on the supposition that it was not going to be quite so long in committee. So we do not know now; it may be 1 January by the time we get through with this.
I would also like to remind the member that in this committee, and I am quoting from the Tuesday 19 March paper, he said, "It serves my purpose, you might notice, that I am using some rather crude delay tactics." So you are. So to be self-righteous in this instance is not really fair going here.
We are telling you that there are delays here that in many instances are unnecessary when supposedly all three parties are in support of this legislation or at least stated that. In regard to the argument that has been used that we did the same when we were in opposition, we made no bones about certain bills that we totally opposed and, yes, we delayed, there is no question of it. But this bill, for three parties that support it or claim to support it and then to delay on minor things -- major issues, fine, but --
Mr Elston: Just a minute, now.
Ms S. Murdock: No. There have been major delays here unnecessarily, and stated specifically by the member.
Mr Sorbara: Mr Chairman, I just want to tell the member for Sudbury --
The Chair: Mr Sorbara, can we return to the motion --
Mr Sorbara: We certainly can.
The Chair: -- your amendment to an amendment?
Mr Sorbara: No, it is not my amendment to an amendment.
The Chair: Well, it was in response to your concerns, sir, yesterday. We have talked about implementation date and various other things, but that is not relevant to the topic here.
Mr Sorbara: It is at the heart and soul of what is going on here.
The Chair: The heart and soul of what is going on here is this page which was just distributed.
Mr Sorbara: No, it is not, and I am sorry to say that, but it is not. We are as anxious to get on with this bill as you are. My friend Mr Elston has an amendment to bring forward dealing with cost of living increases and changing the act so that SCOE is in a position to enforce cost of living increases.
1550
My friend Ms Murdock is trying to suggest that the date of implementation of this bill, the proclamation date, has been adjusted and amended based on our consideration of it in that committee. If that is the truth, I would like someone from the ministry or the parliamentary assistant simply to testify to that effect.
The Chair: Anything further on 36a? Anything further on this section? All in favour of 36a?
Mr Sorbara: Mr Chairman, you are not talking about 36a. When you say "36a" --
The Chair: We are talking about the motion, the amendment to pages 35 and 36, which I am referring to as 36a --
Mr Sorbara: There is nothing on my paper which says 36a.
The Chair: -- which reads that "the motion be amended by striking out the proposed subsection 3g(1)...." Anything further on this particular amendment?
Mr Carr: The only thing I would say is that I guess I, through a lot of amendments, have gone through and I have talked and we have tried to convince it. I am not going to participate any more. I am going to vote very simply and move things through as quickly as possible. The reason is because I resent being accused of holding up something when I have tried to participate as best I could to try and bring the procedures through, so you will not hear anything more from me.
Motion agreed to.
The Chair: Back to 35 and 36, which was the main amendment. It has already been moved. I think you already discussed it at the outset.
Mr Wessenger: Yes.
Mr Elston: It has something to do with this and it has something not to do with this. I know the Chair probably thinks that some of our stuff was pretty minor with respect to some of the things that we have talked about here. We made a minor change to this thing. Perhaps it is minor, perhaps it is major. Perhaps it is minor to consider letting more money go to the people who want it; perhaps it is not such a minor consideration when we have asked to amend the bill.
I just want to join the issue that some of the things that we have brought forward here I certainly feel very strongly about. I realize that you may have orders to get this done and okay, but I was prepared to talk at length about some of the things. I am not prepared to receive some lecture from somebody in the -- not you, from the Premier, who has not been here to follow some of the legislation and the material that was brought forward here for us to consider, about us holding things up. I happen to feel very strongly about whether people are going to be able to afford to work their way through this legislation. I feel very strongly about whether people should be placed in second priority to the consolidated revenue fund, and I feel very strongly that here is some work that was done by my colleague the member for York Centre that presumably is going to strengthen the bill, or at least sort out some of the problems, as we have amended this section 3g as it is being proposed for amendment by the Ministry of the Attorney General.
I just wanted you to know that because you think it is not maybe as big a deal for our amendments to be debated and talked about, I do think it is a big deal. For me it is a big deal and for the working of this thing it is a big deal, and it will be a big deal when I talk about the administration of cost of living allowance and other things. I know the ministry believes it already has it covered but I want it to be firmly on the record that it is going to be in a position to actually administer this thing in a real and effective manner.
So, Mr Chair, I thank you for your deliberate listening to my complaint here, because it is not right on topic, but I could not resist replying to my friend the member for Sudbury, who I think has missed the point of our concern on a number of the areas which we have talked about, so let's get on with this thing. I am not going to go to the same extent as my friend the member for Oakville South. I will continue to participate and I will continue to speak at the times when I think it will be appropriate.
I believe with all my heart that it will not make any difference whatsoever because we will be voted against, and that is fine. That is the way this committee happens to be numbered and structured, but that does not prevent me from speaking my piece and I will not be told by the Premier that we are holding it up when we know that the earliest possible date this bill was even going to be put into effect was in the fall and now we hear it is going to be perhaps 1 January.
That is fine, but to have some piece of superfluous, some kind of dizzy interpretation of how quickly the ministry can move to implement it used as an excuse for not doing other things is just beyond my comprehension of fairness. I will not sit quiet when somebody accuses us of doing something that is furthest from the truth that can possibly be. We were not going to get this until the fall at the very earliest. You know that and Sharon has just confirmed that. It may be 1 January, and the Premier talks about us holding the thing up. I am just fed up with that kind of stuff.
Mr Wessenger: I would like to say something here too. There have been amendments accepted by this committee from both the Conservative caucus and the Liberal caucus and you have both made contributions to this bill. I acknowledge your contributions and I have no problems saying that. So I think we should just continue on proceeding and I encourage you, Mr Carr, to continue on proceeding, contributing to the debate.
Mr Sorbara: As much as we are talking about termination, and this section is termination, I have a word or two to say about termination. I, like Mr Carr, would like to simply say: "Look, I don't give a damn what you want on this bill. You'll get it. I don't have anything more to say. Pass it as you will." But this just happens to be a test, because it is your first bill, of the style of the new members.
I admit there are times when governments and opposition parties go to war on bills. Ms Murdock's former boss, now the Minister of Northern Development, the member for Sudbury East, and I went to war on a bill called Bill 162. It was all-out war and she, the member for Sudbury East, was a great battler. I think all of us stood up in the House when the war ended and congratulated her and some of my caucus members congratulated me when the war was over. It was vicious at times and positions were taken and we dug in our positions. There were amendments to the bill. They naturally arise, but the positions were dug in really firmly. What surprises me on this bill is that it is not part of the fundamental policy of the government. What surprised me every single day is why a government that professes that it wants to listen and be open and flexible is taking such a dug-in position on a bill that is just part of the ongoing stuff that any government would be doing at this time in the life of a Parliament in 1991.
Ms S. Murdock: On a point of order, Mr Chair: We are supposed to be on 35 and 36 and we are still talking about government style. I would like to go on to the amendments.
Mr Sorbara: If you do not want to hear me out, I will find the next flaw in 35.
The Chair: We will discuss page 36. Mr Elston.
Mr Sorbara: I am sorry, Mr Chairman, I think I had the floor.
The Chair: No, sir, you do not.
Mr Sorbara: I had a point of order. Put me on your list.
The Chair: You will be, sir.
Mr Elston: Can I ask why it is necessary to have clause 4, which talks about order to repay, when in fact that is what would happen anyway? If somebody has overpaid, you get an order to repay, right? Why is it in here, because SCOE is not presumably going to be doing that, are they? Sorry, not SCOE any more, I am on the old name. Can you tell me why it is here? Let's do a thorough clause-by-clause of this just for a brief moment. I am not going to hold you up, just to answer the question.
Mr Wessenger: This is a clarification clause, I am advised.
Mr Elston: What is it clarifying?
Mr Wessenger: The court has the authority to order the repayment.
Mr Elston: Of course it has any authority. Anybody knows that. If there has been an overpayment between two people to a contract, which is all this is really enforcing, you get them to repay, so why would you make that statement? Is it not rather redundant?
1600
Mr Wessenger: What you are saying is that there is another provision in the bill that says the same thing?
Mr Elston: No. Basically, under a contract, if I overpay and the person refuses to pay me back, I sue them for the return of the overpayment. So why have you done this? You are just telling the court what they can already do. I do not understand that.
Mr Wessenger: I think we do say a lot of things in legislation so the rights are more set out in full, even though it may not be legally necessary to consider every provision.
Also there is the aspect that if the court is of the opinion that the person ought to have notified the director, there is no -- it does not deal with a straight question of an overpayment, basically.
Mr Elston: But it talks about --
Mr Wessenger: There could be a situation where an overpayment is made and the recipient was not aware that it was an overpayment and received it.
The Chair: It is not an overpayment, it is an extra payment.
Mr Wessenger: No, it is an overpayment, after the obligation was terminated. It is an overpayment, and if the recipient was not aware that it was an overpayment, then the court --
Mr Elston: Excuse me. If it has already been terminated, presumably the recipient already knows about that.
Mr Wessenger: No, the recipient may not be aware it has been terminated.
Mr Elston: Why?
Mr Wessenger: Perhaps I will --
Mr Elston: Yes, I think you should.
Ms Pilcow: The terminating event may not be that clear. The terminating event would usually be within the knowledge of the recipient, but what if the child is living outside of the home and the terminating event is when the child is no longer in full-time attendance at school? The recipient believes the child is, the payor finds out that the child is taking one course at a time. So the recipient continues to receive funds and continues to mail those on to the child, not knowing what the payor knows. In those circumstances, the recipient can be ordered by the court to repay --
Mr Elston: It is fairly remote.
Ms Pilcow: It is not that remote, actually, because some terminating events are actually quite complex. It is usual that the recipient knows and the payor does not, but this ties in to the obligation in subsection 1, which is a new obligation on both the payor and the recipient to advise of termination. This tells the recipient that you do have an obligation to tell the director when you know your order is finished that, "My order is no longer applicable." That obligation did not exist before and this makes it very clear to the recipient what the ramifications of not notifying are.
Mr Elston: Should this section also include an obligation on the branch to make a payment back to the payor if it has mistakenly made an overpayment, as well?
Ms Feldman: The whole point of the section itself is to allow the branch to have more notice than it ever did in the past with respect to possible terminating events. There are more grey areas than one could ever imagine on the terminating event for support order. In the case of full-time attendance at school, somebody who attends school for four courses for a semester might by the recipient be interpreted as being in full-time attendance, but not by the payor, who has the same information, and it requires a court interpretation. So this does allow the program itself to continue to receive funds when the parties themselves cannot agree and the program cannot interpret what full-time attendance at school is in the grey areas, and the court can interpret. Once that court does make the decision, of course, then the director has to abide by the court decision that the obligation is terminated.
Mr Elston: Can I ask then, further, since, "The director shall continue to enforce the support obligation in the manner, if any, that appears practical," what, if any, guidelines are being given to the director with respect to that subsection, bearing in mind that we are really making very full deliberation in this section about what the court shall do when there is an overpayment and otherwise, but we leave it very, it seems to me, open for the director, at her discretion, to decide to continue to pay out the full amount or not to continue to pay the full amount or whatever. It seems to me that if we are going to tell the courts what to do, we ought to also in this legislation tell the director what to do.
Ms Pilcow: Did you just read subsection 3g(6)?
Mr Elston: Subsection 6, yes.
Ms Pilcow: The obligation on the director is to continue to enforce, in the same way that the director is obliged to force any order, until there is absolute notice that the court decision has been made terminating the obligation.
Mr Elston: But it says, "that appears practical." Does that mean that she is to continue making full payment if in fact the dispute is with respect to the amount of money that has been overpaid, and that money may be gone and her obligation to the payor who is asking for the termination to be effected may be that she will be paying money out that will never be repaid to the payor?
Ms Pilcow: The obligation on the director is to do whatever the court order requires the director to do --
Mr Elston: I understand that.
Ms Pilcow: -- unless the director gets notice that the order has been terminated or the parties agree. Notwithstanding what the nature of the dispute may be between the parties, the director's obligation comes from the support order so that the director is going to continue to enforce.
Mr Elston: Why are you allowing the director to continue to make the disputed -- I will call it "disputed" -- overpayment during the course of this court proceeding rather than just collecting it and holding it in trust?
Ms Feldman: The way the law with respect to support enforcement generally has evolved is that when a dispute is filed by the payor, for instance under a garnishment, the order continues to be enforceable unless the court orders otherwise, so the dispute does not in itself stop the obligation. The benefit does go to the recipient nowadays. That is a change from what the law was in 1986, before this SCOE legislation came into force. This continues that.
That is, I think, the benefit of this notice provision. If there is a dispute between the parties, at least the director is aware that that dispute exists, but the payor will have to establish to the court -- that might be by way of an interim motion on his part, but if he is very convinced that his case is right and the support obligation has terminated, the payor has to establish that the support obligation should stop, that the money should stop to flow, and the court will have to look to see whether there is a prima facie case. The director will abide by that court decision, of course.
But things are reversed from the way they used to be. It used to be that the filing of a dispute itself was enough to stop the prima facie flow of money and then the Legislature, in your time, Mr Elston, actually changed the legislation to benefit the recipient and to put the payor who disputes to the onus of showing the courts that at least he has a prima facie case of valid dispute. Otherwise, there are lots of frivolous and vexatious disputes that just stop the flow of funds.
Mr Elston: That being the case, maybe what we should be doing is also indicating in another subsection here that the court may order that the director shall discount against the amounts to be collected any amount that is seen to be an overpayment.
Ms Feldman: But I think the point is that what we had hoped to have done by this very section is to put everything on the table. If the payor indicates that it is his feeling -- and remember that so many of these terminating events are truly grey areas; they are not black and white, they are difficult: a child of the marriage under the definition of the Divorce Act; full-time attendance at school; children go away to university; the rooms are kept; they come home every weekend; they come home twice a week; they come home for school holidays. Whether the child remains a child is often in dispute.
It is not really the program's mandate to interpret the grey areas that arise so often and yet this section allows the payor to actually say, "I think this child is not a child of the marriage any longer." It allows the creditor to either agree or not to agree and then it allows a decision to be made. The program's mandate, of course, is to enforce the subsisting order to pay out, if the court orders otherwise, and of course payments would be stopped being requested from the payor. And if the creditor ought to have known that the termination has occurred, if it is not a grey area, then the repayment has to be entertained from the person who has received the funds, being the recipient, not from the program that has just acted as a conduit and remitted the funds to the recipient.
Mr Elston: It seems to me, then, that a section could be added very well that obliges the court to consider using the branch as a manner in which to offset amounts that are owing if there has been an overpayment. You have said that they can make the order, but why would you not also say that they could go further and require the support deduction order to be amended appropriately until the arrears or at least the overpayment is collected?
The question is really a good one: why did you tell them they have to do certain things but that you did not go to the natural extension of surveying all the options that a court could make under the orders that were possible in terms of re-collecting the entire amount?
1610
Ms Feldman: You are asking why the court, after finding that a support obligation is terminated, back some time, has not ordered that the director set off the future payments.
Mr Elston: It is an option, right? You have given them some options here. You have told them that they cannot consider certain things, they can consider certain things, they must not consider others. Why would you not say they can consider until the amount is collected having the director set off against the amounts owing the overpayments?
Ms Pilcow: The important thing about subsection 4 and the reason that needs to be there is to let creditors and payors know what the ramifications of not giving the proper notice are. The director is not in the position not to know or not to understand.
Mr Elston: There really is no ramification that is separate and apart from the payor who has overpaid having to go to court and then trying to collect from the person to whom he is making the payments. That is the way it is now and there is nothing, there is no ramification for another person being delinquent.
Ms Pilcow: Not exactly. The creditor now does not have an obligation to give notice that the support order is terminated.
Mr Elston: But what is the penalty if there is no notice given?
Ms Pilcow: Repay.
Mr Elston: There is no penalty in addition to what there is now. If you are overpaid under a contract, you have to repay that amount. That is quite clear. You take them through the courts and you would say -- I do not see what the difficulty is. If you are thinking that this offers some kind of sanction for somebody who has been recalcitrant about giving a notice of a termination event, there is nothing here that is that way at all. Right?
Ms Feldman: In your fact situation, I see where you are coming from, and I think that what a court would entertain as part of an order for repayment -- the court might consider that a support order be suspended in whole or in part. But the problem with ordering a setoff is that it depends on the person's circumstances, it depends on the circumstances of both parties, and it might be very harsh to say, in a provision, that setoff can be ordered when in fact it is up to the court to decide how best to effect the repayment if it feels the repayment cannot be effected voluntarily. It might be that they suspend the operation of the support deduction order or the support order in whole or in part -- actually, only the support order. They could not do that to the support deduction order without doing the support order because that is what would have to be suspended in whole or in part in order to effect repayment.
Mr Elston: I do not mind you using that logic with respect to this section, if you also use the same logic with respect to the other sections with which I have had some association during our debate on the clause-by-clause.
For instance, in one area you told the court that it could not consider certain circumstances. In other words, in this section, you are leaving it totally open to the discretion of the court even though you already know some of the options that are available for it to make an order. In other sections of this bill, in 3, whatever it was that we were dealing with, notice of suspending the operation of a support deduction order, you told them they could not do certain things, that they could not take notice of certain things.
My only concern is that if there is consistency with respect to allowing some discretion in the manner in which the court addresses itself to policy issues or -- I am sorry; policy issues is not really the right word -- issues in dispute as between the parties, why are you not consistent in all of the sections? Why do you not leave it open for them to consider whether the person's circumstances have some role to play with respect to whether it is reasonable or practical not to deal with the suspension, the operation of this bill? If you are going to do it in one section, do it in them all. I do not care how you do it.
Mr Wessenger: I think it is appropriate, in this language in this section, that I would not want to fetter a court jurisdiction with respect to how it is dealing with the variations.
Mr Elston: The parliamentary assistant has problems in doing something that would fetter the discretion of the court in this section but he had no problems in fettering the discretion of the court with respect to the circumstances that could be considered when a request was made for the suspension of the operation of a support deduction order.
You cannot deal in the legislation in that way. You are going to let the courts do it or you are not. In this case, when you do not have the sections all laid out in detail, you are going to say, "We will leave it to the courts," but in other sections you have said, "No, we are going to tell the courts what they can agree to talk about and what they cannot agree to." I do not understand your rationale.
Mr Wessenger: I can see quite a difference between enforcement of orders and convincing a lawyer.
Mr Elston: Yes, but you are the parliamentary assistant, and I guess you are going to do that.
Mr Wessenger: Normally in enforcement of orders there is no discretion, in many cases, like writs of execution.
Mr Elston: Okay, can I ask at this point then, under subsection 7 and subsection 8 the parties are the parties to the support order, but the director will not be a party to any proceeding to determine the entitlement of any person to support. Does that mean with respect to the amounts that are paid? The director cannot be compelled to indicate how much money has been paid with respect to any of these applications? It seems to me that somebody ought to be compellable out of the ministry to issue things. I presume if the director is not a party, she could then be subpoenaed?
Mr Wessenger: Yes. She could be a subpoenaed as a witness. There is no problem there. Being a party is not adverse to any other part of that.
Mr Elston: Why could she not be joined if in fact she has made a payment that is sort of out of compliance with what had been agreed upon?
Mr Wessenger: I think this is really only in determining the entitlement of any person to support. That is a matter between the two parties. Certainly the director could be a party to something related to anything in the act.
Mr Elston: But she could be subpoenaed and she is compellable in this one?
Mr Wessenger: Yes, definitely.
The Chair: Mr Sorbara?
Mr Sorbara: Are we now done with that subsection? I just want to know from my friend Mr Elston whether he has finished his questions.
Mr Elston: Yes.
Mr Sorbara: That is on subsection 4.
Mr Elston: Well, I went right through to 6 and 7.
Mr Sorbara: I have a question on subsection 8. Subsection 8 provides for notice to income sources. Remember, income sources are the people who receive notice of the support deduction order and then 14 days after that are required to start making deductions and forwarding them to the director. It says,
"When the director's duty to enforce the support order has ceased" -- and this whole section deals with the termination -- "the director shall give written notice to each income source affected by a support deduction order that the support order has terminated."
I am confused there as to why the director would want to give notice to an income source that the support order itself has terminated. What business is it of the income source whether a support order between the spouses has or has not terminated?
Mr Elston: So they will know whether they are going to have to pay.
Mr Sorbara: I could understand the director giving notice to the income source that the support deduction order has terminated. That is relevant to what the income source needs to know about. Would you not agree with me that if we are concerned about privacy, the income source should only be aware of the support deduction order? Can I get sort of four-party agreement around the table on that? Yes or no? Am I right about that?
Interjection.
Mr Elston: But you are only dealing with the support deduction order. The support order itself may still be in effect for other reasons.
Mr Sorbara: Let's just work this thing through. Do we agree, as a matter of policy, that the income source ought not to have knowledge of the support order, ought only to have knowledge of the support deduction order? Yes or no?
Mr Wessenger: Yes, I think that is --
Mr Sorbara: Well, then, why ever under subsection 8 would you be sending notice to an income source of the termination of the support order, which is none of the income source's business? In fact, if we are concerned about privacy, he ought not. What are you trying to do here?
Interjections.
Mr Sorbara: I am willing to take a five-minute recess if you want to figure it out.
Ms S. Murdock: A point of clarification, Mr Chair: The director not being a party, Mr Sorbara? Subsection 8.
Mr Sorbara: Yes, we are into subsection 8, that is right.
Mr Elston: I am sorry, this is on the replacement sheet. I was dealing with the white ones.
Ms S. Murdock: On the yellow? We have moved on to this? Yes, I am on the white ones.
1620
Mr Sorbara: Yes, we are on the yellow ones. It is the yellow ones that have been moved.
Ms S. Murdock: Yellow. Just a minute. The number at the top right-hand corner is --
Mr Sorbara: Let me help out my good friend from Sudbury. The page is numbered with handwritten notes at the top saying "35 and 36 replacement."
Ms S. Murdock: Okay.
Mr Sorbara: And then if you flip the page, it says in the upper right-hand corner 2. Are you there with me?
Ms S. Murdock: All right, I am at it.
Mr Sorbara: Just to help Ms Murdock out, that section says:
"When the director's duty to enforce a support order has ceased, the director shall give written notice to each income source affected by a support deduction order that the support order has terminated."
I want to know why. I mean, there are even situations where the responsibility for a support order having terminated, you are supposed to continue enforcing a support deduction order. What business do you have sending an income source information that a support order has ceased?
The Chair: Mr Wessenger.
Mr Wessenger: We are just considering your proposal here, because I --
Ms S. Murdock: Can I just ask a question?
The Chair: Mr Wessenger has the floor.
Mr Sorbara: I am taking questions now, Ms Murdock.
Mr Wessenger: May I just get through clarifying? What you are suggesting is that we say the support deduction order has terminated, rather than the support order has terminated. That is your --
Mr Sorbara: No, no, that does not help, because the beginning of the section speaks about the director's duty to enforce a support order, not a support deduction order, so obviously the triggering event is the termination of the duty to enforce a support order. Remember, there are situations where the director has no authority to enforce a support order but has, believe it or not, authority to enforce a support deduction order. Here you are talking about what happens when you lose the authority to enforce the support order, and you are saying that you are going to tell income sources about that. I do not understand why. I do not understand what you are trying to do there. It is none of their business.
Ms Feldman: The support deduction order can actually survive, quite apart from the withdrawal mechanism. There can be arrears which continue after the termination of a support obligation --
Mr Sorbara: I agree with that.
Ms Feldman: -- which continues to be enforced through the support deduction order after that support order has been terminated.
Mr Sorbara: But, you see, here you might have a situation where the survival of the support deduction order is the empowering element, yet you are talking here about something that the director should do when you lose the authority to enforce the support order. My point is that this is the very thing you should not do, because it is none of the income source's business. Get it?
Ms S. Murdock: In relation to that, then again asking you, Mr Wessenger, so far in all the deliberations we have done we have said that the support deduction order can live without the support order if arrears or whatever are causing it to continue to be collected. But we never discussed the possibility of a support order living without a support deduction order -- for the purposes of this act, I mean.
Mr Sorbara: Oh, sure it does. May I interject? For the purposes of this act, a support order can live well beyond the end of a support deduction order. Sure.
Ms S. Murdock: Okay, I agree with Mr Sorbara, actually, that the --
Mr Sorbara: Alleluia. My God, the sky is falling. Everyone under your desks, please.
Mr Elston: Just a minute. We need a five-minute recess here.
Ms S. Murdock: I agree that unless you can show me that the income source needs to know that a support order has terminated, I do not see any need for him to know.
Mr Sorbara: I think we had better have an adjournment and let these folks figure out what they are going to say here. I move a 10-minute adjournment.
The Chair: We will have a five-minute adjournment.
The committee recessed at 1625.
1653
The Chair: Mr Wessenger?
Mr Wessenger: I would like to have this one stood down again.
The Chair: All in favour of standing down 35 and 36? Unanimous consent is required. Mr Wessenger moves standing down of 35 and 36.
We are moving on now to 39, the statement which is on the yellow sheet; 37 has been withdrawn.
Mr Wessenger moves that section 3i of the act, as set out in section 3 of the bill, as printed, be amended by adding the following subsection:
"(la) On a motion referred to in subsection (1), the payor shall not dispute the entitlement of a person to support under a support order."
Mr Wessenger: The purpose of this is that we previously had the words "under subsection (1)" and legislative counsel said we should have "referred to." So that was it.
The Chair: Any discussion?
Mr Elston: Can I just have a couple of seconds here?
Mr Wessenger: It was not really under that subsection it was referred to.
Interjections.
Mr Elston: This is a payor on a motion in the court that made the support deduction order in the appropriate court and motion under subsection 3h(6), and then that is what this amendment --
Ms Pilcow: The difficulty was that it was not a motion under subsection 1, it was one of the two motions referred to in that subsection. It is a grammatical change as opposed to --
Mr Harnick: Is this the one, a debtor on motion in the Ontario Court (Provincial Division)?
Mr Kwinter: It is a payor on motion.
Mr Harnick: No, on mine it says a --
Interjection.
Mr Harnick: Okay, government amendment, a payor on motion in the court that made the support deduction order?
Mr Kwinter: That is it.
The Chair: Any further discussion? Mr Elston.
Mr Elston: Is there a possibility that some of these issues might be joined together at one time, for instance, maybe a number of motions under various subsections to deal with issues that can be or could not be joined? This would seem to say that this motion would have to stand all on its own if there are a series of issues that had to be resolved in front of a court.
Ms Pilcow: No. It is bringing as many motions as are appropriate to one court. That is not something that is dealt with in this legislation.
Mr Elston: So you are precluding this item being dealt with at the same time as a motion for overpayment, for instance, is being dealt with? Just so that the whole issue may be joined, you are not precluding somebody from joining this with others?
Ms Pilcow: This cannot preclude anybody from bringing as many motions as he wants to at the same time. It outlines what issues are dealt with on that particular motion, but there is nothing wrong with a person seeking all kinds of relief before one judge at one time. They always do that, actually; that is commonly done.
The Chair: Any further discussion? All in favour of the motion on page 39? Opposed?
Motion agreed to.
The Chair: Page 39(a), the next page.
Mr Wessenger moves that section 3i of the act, as set out in section 3 of the bill, as printed, be amended by adding the following subsection:
"(lb) The director is a necessary party to a motion referred to in subsection (1)."
Mr Wessenger: I would just say the purpose of it is to ensure that the director is always a party to these motions.
Mr Elston: Except that we just talked about the director not being required to be a party before, in respect of whether a person should be making a collection in the support order or enforcing the support order. I do not understand why the director is a party here, because the issues in dispute, it seems to me, are the question about whether there has been a default. It seems to me the director might appear again as a witness compellable to testify about default, rather than being a party. I do not understand that. What is the difference here and in the previous discussions we had, in other words?
Ms Pilcow: The intention under section 3i is that these are motions that in most cases will be able to be disposed of by the director and the payor. So under clause (a) the question would be, "The number in my support deduction order is actually --
Interjection.
Ms Pilcow: So the three motions that can be brought into that section, under (a), it could be a question of the numbers being transposed incorrectly or some clerical error having resulted in the director, for whatever reason, putting the wrong amount in the support deduction order. The intention is not to drag the creditor or the recipient in to dispose of motions of that nature. Under 3d --
1700
Mr Elston: And yet the creditor is going to want to have some information about anything that may affect his or her status, it seems to me. Right?
Ms Pilcow: They may or they may not. In a question of this nature, if it is a clerical error, the recipient is going to have a great interest in not actually appearing before the court to deal with it. It is a matter that does not really --
Mr Elston: No, but if there is a clerical error and my client is receiving $100 this month and then next month gets $94, my client is going to want to know what happened and why that is being changed. Likewise, if they are getting $100 this month and $200 next month, they are going to want to know what is happening. I do not understand when they might not want to be a party, as opposed to the director being a party, because I do not understand why the director is a party on this one and not a party on the other ones.
Ms Feldman: In fact, the disputes contemplated by this section are very much like garnishment disputes, and they are meant to be the summary types of disputes in which the mandate of enforcement, which the director has exclusive jurisdiction over, is between the director, the payor and perhaps the income source from time to time.
The director being a necessary party does not necessarily mean that the creditor cannot be involved, cannot be advised, cannot be informed, although the fact is that because -- remember, the director has eight regional offices; creditors are all over the province. What we are trying to do is assist the creditor so that she will not be served and called upon to respond and come to court when in fact it is the director's exclusive jurisdiction to carry out the enforcement mandate.
These disputes are supposed to be specifically with respect to that enforcement, the support deduction order and summary matters that can be dealt with with respect to the court deduction. It does not have anything to do with entitlement or the amount under the support order that is being enforced. It has to do with the support deduction order and what is happening with the support deduction order, so that court cannot do anything that will affect the creditor's entitlement on a section 3i dispute.
Mr Elston: But it will affect the cheque, right?
Ms Feldman: It may affect the amount being deducted, but it will not be left on the ongoing amount under the support order at any particular time. In other words, the payor might say, "I can't pay this much," with respect to the arrears when arrears are added to the ongoing support. The court will make a determination with respect to that. The creditor's evidence may be needed, and in that case the director will call upon the creditor to give evidence and to assist the director in making the case as to why the arrears should not be reduced on one of these disputes. But that is on a case-by-case basis and it is up to the director to do that if the director feels it is necessary to have the creditor as a witness.
Mr Harnick: Are you saying that if the creditor is receiving, say, $100 a month in arrears in addition to the amount of the support deduction order and that amount is going to be reduced to $50 a month because the debtor cannot comply with the $100, that the creditor does not have to be a party to that motion?
Ms Feldman: Under the legislation, it is the director who, for the benefit of the creditor, carries on all enforcement activity and has exclusive jurisdiction to do that.
Mr Harnick: But what I am asking you is, if you were going to change the amount of the arrears because the debtor says: "I can't pay $100 a month. I can continue to comply with the support deduction order, but I can't continue to pay the arrears of $100, I can only pay $50," the director attends on the motion but the creditor does not have to be there or does not have to be served?
Ms Feldman: That is correct. It is the court that makes the decision based on the payor's financial statement sworn, any evidence that might be led and the director's attempts to keep that order as high as possible, or that enforcement mechanism as high as possible.
Mr Harnick: Except that if the debtor says he cannot pay $100, that he can only pay $50, and the creditor knows that he can really pay the $100 and the creditor has evidence of that which the director may not have, and the creditor depends on that $100 because the creditor has arranged his or her life in a manner that includes that $100, you are saying that the creditor does not have to be given notice?
Ms Feldman: Under the present legislation, the way that garnishment disputes right now work, because it is the director who does this on behalf of the creditor, the director is served. The creditor does not have to be given notice.
Mr Harnick: Is that what this amendment does?
Ms Feldman: No, it continues the status that exists with respect to garnishment. It does not change any matter.
Mr Harnick: So even though the creditor may have evidence to show that the debtor is not telling the truth and the director does not necessarily have that evidence -- how can you not give notice to the creditor, who is about to get a lesser amount every month?
Ms Feldman: When the director is served, it is often with very short notice, and the creditor -- 83,000 orders have been filed with the program, and currently the creditor can be quite a way from the director's office. The director, though, does have to respond. In responding to the debtor's allegation, unless there is such short notice that contact is impossible and an adjournment has to be requested, the director's counsel, as a matter of practice, will contact the creditor to ask about any items that would need a response. In drafting a responding affidavit he or she may indicate in a paragraph, "I am informed by Ms Jones and verily believe that..." if that is necessary, or may, if things are a bit more intense than that, call that creditor in and ask her to appear at court and to assist director's counsel in making a case. That is why it is important to keep in mind that entitlement, which is the most difficult issue to address in garnishment dispute hearings, is not on the table here. These are not entitlement issues; these are financial issues.
Another matter to keep in mind is that the director, in getting a filing from any recipient, gets filing information packages filled out by that person. The recipient is always welcome to write in and to update us, so the hard copy file that appears in the director's office at any point in time should contain whatever current information the recipient has advised the director of, so that the director can carry out its mandate to enforce.
Mr Harnick: I hear what you are saying, but the one thing that is clear is that there is no statutory duty on the director to contact the creditor. You are saying that the director should contact the creditor. Sometimes there may not be time or sometimes the time may be short, but surely the director knows where the creditor is. Surely there should be some statutory duty upon the director to notify the creditor that a motion has been brought that could see a change in the amount of money that person is receiving on a monthly basis.
Ms Feldman: The statutory duty, Mr Harnick, is to enforce in the manner that appears practical to the director, and the director has exclusive jurisdiction to enforce. I suppose, in so far as compromising the creditor's account is concerned, the director uses all efforts -- and that is part of the problems that certain constituents might have from time to time -- to be vigorous and to maximize enforcement on a global basis. We cannot be particular in a volume operation to have a statutory duty to contact every creditor in every instance, but whatever manner appears practical would be followed by the director in the particular circumstances.
Mr Harnick: My concern is quite simply that if you attend on the motion and there is no such statutory duty and the director comes in and says, "Look, I have not been able to contact the creditor," and the creditor may well see that she is going to get less money every month as a result of this motion, the judge may have no authority to grant an adjournment if there is no statutory duty to contact the creditor. If the creditor is going to get less every month -- look, it is your bill -- it is their bill. I cannot see that --
Mr Elston: Let's find a real owner for this bill.
Ms Feldman: The court always has the ability to add any party that it thinks is a required party for any motion, and if in any particular circumstance the court feels -- that is why it indicates "necessary." It does not preclude the court from adding the creditor as a party to any particular motion if that is what is required.
1710
Mr Harnick: All that counsel for the debtor has to do is show up and say: "I served everybody who has to be served. Let's get on with it. The fact that the director has not done what he has to do or has not notified -- why should I suffer? I can't afford to pay this any more. Let's get on with it." Why should the judge adjourn it because the director has not done his job?
Ms Feldman: Well, as the necessary party, if the director feels that -- for example, in a prosecution, if the crown feels they have a witness who for some reason cannot be called forward, or they have not had time to brief that witness or be briefed by that witness, then the judge does have discretion to grant or not grant the adjournment. That is the same as here.
Mr Harnick: I have been in lots of courts, and when you find out that you do not have your witness ready, very often the judge says, "That's not my problem. I have 30 cases on my list today. If you are not ready to go, then take a hike." It happens all the time. Why should the lawyer not be prepared to run his case? Judges do not run cases, lawyers have to come and be prepared. I am not exaggerating a little bit.
The Chair: Anything further on this? Mr Elston?
Mr Elston: It is a question, really, of me following the way these things are printed. This amendment is to what used to be 3i, is that correct? So it is now 3e in this printed book, and it speaks about a motion in a court and then it talks about a motion under subsection 3h(6). Our previous 35 and 36 replacement speaks about deleting all of 3g and all of 3h, and I presume it is referring to the 3h that was formerly section 3k.
Mr Mammoliti: They are coming to get you.
Mr Elston: Yes, okay, that is fine. Before they take me away, I want to know -- if 3g and 3h were to totally disappear, that would seem to me to take part of this 3e(1) that we are amending by, what is it, 39a? Yes, I guess it is 39a on these gold sheets, or whatever colour they are described to be. I am sorry, I am just trying to follow what is happening, because if we are taking out all of 3h under the previous 35 and 36 replacement, we are not replacing any of it under your replacement sections. That is a little convoluted, but --
Ms Pilcow: If you look at the white amendment, number 37.
Mr Elston: Oh, we are coming back.
Ms Pilcow: That amendment renumbers a number of sections. If you look at what is now 3h(6), it is what used to be called 3k(6).
Mr Elston: Oh, so -- 37 is the PC motion.
Ms Pilcow: Oh, I am sorry, it is 47.
Mr Elston: Oh, 47? I am sorry.
Mr Harnick: On a point of order, Mr Chairman: I do not know about anybody else on this committee, but I am sitting here with the reprint to show amendments proposed by the Attorney General, which is a large white book. I am sitting here with the annotated version of Bill 17. I am sitting here with a sheaf of yellow papers. I am sitting here with a sheaf of gold papers, which are all amendments. I am sitting here with three dozen white pages -- I guess more. They go up to number 57; I do not know how many there are.
Mr Carr: Another single yellow.
Mr Harnick: I am sitting here with another single yellow paper. I am sitting here with Bill 17, the small white one after first reading, and I am sitting here with another couple of white pages. I have no idea what section we are dealing with. I have no idea what sections are still to come. I defy anybody else in this room to tell me what section we are on, where we are going. This is totally unintelligible, and I suggest that we adjourn and come back next week, and hopefully you could have one version with everything in it so we can follow it page by page, number by number. I see 3i is 3g, and 3f is 3h, and I cannot follow any of this any more.
The Chair: Mr Kwinter?
Mr Kwinter: Mr Chairman, I would like to just add to Mr Harnick's words. I am a substitute. I was here for the public hearings. I have been sitting here, and I like to think that I have some knowledge in these areas, and I agree with him. We have been conferring back and forth, and I was just thinking to myself, I have just got to tune out of this thing because I cannot understand where all these things are. We have been trying to figure out where 3k was, where 3h is, and every time we look at a piece of paper we say, "No, that is not the right piece of paper, it has got to be another piece of paper." I would think --
The Chair: Mr Kwinter, perhaps we could have the clerk clarify something.
Mr Kwinter: I would think that might not be a bad idea.
The Chair: She picked them up, I believe, yesterday, the number of different versions we have, and I think the clerk did make a good point --
Mr Elston: Do not try to implicate her.
Mr Harnick: Can I say one more thing to Lisa, please? I do not mean to imply that the clerk has not properly provided us with the information we need. It is not her fault. I do not mean to imply that it is her fault.
The Chair: Perhaps we could let her clarify whatever it is she wanted to clarify.
Mr Harnick: It is so complicated that I do not want to sit here any more because I cannot understand what is going on. I defy anybody in this room to tell me what is going on and what order we are going in. I do not want to continue this until I get a consolidated version of what we are doing because I cannot understand it.
Clerk of the Committee: There is only one thing that I would like to clarify in terms of what Mr Harnick is asking for. If you want another reprinted version with everything in it, that only comes out of the ministries, so you would have to ask the ministry if it is willing to reprint and incur the cost of reprinting a whole new set. It does not come out of the clerk's office. I just want to clarify, if that is what you are asking for, it is up to the Attorney General.
Mr Carr: We are going to bankrupt the Treasury.
Clerk of the Committee: Yes. The reprints are done by ministries with their own amendments.
The Chair: The other item that Lisa brought up yesterday was very simply that the annotated version and the updated version, the larger yellow stapled sheet, are not properly before the committee. What is properly before the committee is the original Bill 17 and all these sheets of yellow and white paper.
Mr Harnick: That may be so but I cannot follow where we are going and I do not care whether they reprint it or they retype it and photocopy it for us, I just have no idea where this is leading to. I have no idea what section we are doing next. I cannot properly prepare to come in here because I do not know whether we are going to be doing the white pages or the yellow pages or the gold pages or the annotated pages or the big white book or the little white book. It has just become impossible to follow this.
The Chair: The only thing we will be doing, sir, will be the yellow pages and the white pages.
Mr Harnick: Just let me finish.
The Chair: We just had that clarified.
Mr Harnick: My impression is that this bill is becoming so complicated that I cannot follow it. I am only hoping that if I get a consolidated version of everything we are doing, it may become understandable again. But I defy anybody else in this room to say that they can do this with this mess, or this conglomeration of papers.
Mr Morrow: Just on a point of clarification, Mr Harnick, did you ask for a motion to adjourn during that point of order?
Mr Harnick: I do not want to stay here because I do not understand what is going on. I cannot even find the page we are dealing with. I have been looking at 3i and really he is talking about 3e and --
Mr Morrow: Mr Chair?
If a motion to adjourn was put on the floor, my understanding is that a motion to adjourn is non-debatable. Right?
The Chair: He suggested it but he did not put it on the floor. Mr Harnick, are you wanting to put that motion on the floor?
Mr Harnick: All I am asking for, rather than sit here until 6 o'clock looking for the right section and the right page -- it is now Tuesday; we do not have to come back here till next Monday. Surely between then --
Mr Mammoliti: Mr Wessenger has been trying to tell you where we are at.
Mr Harnick: Just a second. I have the floor.
Mr Mammoliti: You have had the floor for 20 minutes.
Mr Harnick: That may be, and I may have it for 20 more minutes.
Mr Mammoliti: He is trying to tell you where we are at.
Mr Harnick: May I finish, Mr Chairman?
The Chair: If you are raising a point of order I would have to rule on it.
Mr Harnick: May I finish making my point of order?
The Chair: Go ahead.
Mr Wessenger: The only reason I wanted to interrupt is that I would like to help clarify this situation, and what I think would help considerably -- the annotated version contains most of the items, but what has been suggested is that we update the annotated version to include all the amendments that have now been made.
Mr Elston: I am not sure that is reasonable.
Mr Wessenger: I think it is very reasonable.
The Chair: I think we should refer to Lisa.
Mr Harnick: Can I finish my point of order?
The Chair: I thought you had. You yielded the floor to Mr --
Mr Harnick: Mr Morrow wanted me to ask Mr Wessenger so I thought Mr Wessenger could solve my problem.
The Chair: Could we have the clerk speak to this as well?
Clerk of the Committee: One thing that can be done quite easily is -- my amendments are all in a binder and the reason that people got them Xeroxed on different colours was so people would know they were new amendments not in the original package. I can Xerox right from the beginning right through to the end with all the replacements in the correct order if that would make things easier for anybody.
1720
The reason all these amendments were numbered 39a was so that you would know it would come after page 39. Sometimes it was written "replacement" so you would pull out the other one. I could do that manually for everybody and give everybody a new package if that would help the matter at all. That can be done within the next two minutes. I can just Xerox the remainder of the package, properly numbered.
Mr Harnick: I cannot follow the act and I cannot follow the sections that we wish to amend. I see the amendments but I cannot find the sections that we wish to amend. It is not understandable to me. Is there any way that we can, by next Monday, have a package that goes in order that shows me the sections as they exist and the amendments that we wish to make? I cannot follow this any more.
The Chair: I have to rule against your point of order.
Mr Harnick: I knew you would.
The Chair: On the other hand, I think your point merits discussion. Mr Mammoliti.
Mr Mammoliti: I can understand how you feel. Perhaps you feel a little confused from time to time. When I am confused I ask questions, and if I lose my spot at any given time I would ask the Chair where we are at as opposed to --
Mr Elston: Oh no. He is more confused than you are.
Mr Mammoliti: -- saying, "Let's adjourn because I don't know where I'm at." That is kind of ridiculous. I would suggest, Mr Chairman, that the member just ask where we are at and perhaps the Chair could lead him and give him the proper information. If not, perhaps somebody else in the committee could tell him where we are at. I would like to tell him where to go.
The Chair: Mr Wessenger and then Mr Kwinter.
Mr Wessenger: For the purpose of clarification, we are dealing with 3i that is on page 49 of the annotated version and we are dealing with an amendment to that as set out there on that motion, 3i on page 49. It continues on page 50.
The Chair: Okay, we have that clarified. Mr Kwinter?
Mr Kwinter: I would like to make a comment on the previous speaker's remark. Again, I do not mean this to be partisan or derogatory, but as members of the government party, your role literally is to sit there and fill the seats. You are not doing anything other than whatever the Chairman says you are voting for. You are not raising any amendments other than the government's amendments.
For the members of the opposition, the very nature of their role is to raise questions. There has not been one single question by that side of a government amendment. Not one. And I am not saying there should be.
Mr Mammoliti: That is because we know where we are at.
Mr Kwinter: No. I am just saying that you do not know where you are at because you are not even bothering to follow it. You just walk in -- no. The point I am making --
Mr Morrow: I take offence to that.
Mr Kwinter: No. The point I am making is that the government is putting forward amendments, and as members of the government you get your marching orders from the whip. I am not saying there is anything wrong with that. That is the way it works.
Mr Mammoliti: That is the way it used to work.
Mr Kwinter: No, that is the way it works right now, believe me. That is the way it works.
What I am saying is that the opposition members have a responsibility to raise questions. Every once in a while something comes up and they say: "You know what? You're right." But in order to do that effectively, we have to have some organized way of addressing it and to suggest, "If you have a problem ask the Chairman," is not good enough because a lot of this work is done before we walk in. You do not have to do anything before you walk in. You just have to come in and sit and if something comes up, you can comment on it. But you do not have to do any preparation because the ministry has already done the preparation and you are supporting that. I am not being critical, but from an opposition point of view, our members have to look at this thing and say, "Is that something we can support?" If it is not, we come in prepared to argue it. The only way we can do that effectively, and the only way we can do our job is to at least have a document that makes some kind of coherent sense. I do not think that is unreasonable to say.
The Chair: Thank you. Mr Morrow and then Mr Elston.
Mr Morrow: Mr Chair, I personally take a lot of offence to what the member just said; that we just come in here and sit. I personally read these amendments and I know my other colleagues from the government side read these amendments. To suggest that we just come in here and sit and vote as we are told to do I really feel is wrong and I do take a lot of offence to that.
Mr Elston: Basically, Mr Chair, I think probably in their efforts to try and help us with this, the ministry has helped to confuse us a wee bit by doing the consolidation. The big book is what obviously has taken my mind away. If we probably stayed with the small reprint, I see no reason to go out and spend a lot of money reprinting anything, and I do not want another consolidation because that will consolidate the confusion.
Despite the fact that Mr Mammoliti can ask the Chair where he is and what time of day it is, I do not feel as confident or comfortable in following the Chair's lead, necessarily, when it comes to telling us where we are at. I would far sooner find my own way through the amendments. But if we actually took -- I do not even know what this is describing; second reading, I guess, is it?
Ms Pilcow: First reading.
Mr Elston: Anyway, it is the bill that was introduced and we are amending that one. I am sorry to have raised all the problems. I have been trying to follow which one of these reprints was necessary for our deliberations. It seems that it would be better to stick with the original and then just go through all of the sheets we were given and try to identify them that way. I do admit that the error was not in trying to confuse us, but in trying to help us through this, to see what the context was. But the context has been obscured by all of these things.
I am quite happy enough to follow along with the official bill as opposed to the consolidation as it then was described and as now has been supplemented by other amendments. Perhaps we can just move forward.
The Chair: Legislative counsel?
Mr Revell: I just might comment on the blizzard of printed bills as opposed to the rest of the material you have.
This bill with the arrows and the like is a government reprint and is not official, and it probably would be better not to consider it because it is confusing the issues in terms of where we are at.
With respect to the other two copies you have, the small version and the one that is marked on the -- okay, some people may have a third one that says, "This bill has been reprinted to conform to the new printing format." Some of these were distributed in some places. The small one and the one that was reprinted to conform to the new printing format are both equally official texts.
Mr Elston: That is the one that had the parallel columns with English and French.
Mr Revell: Yes, because we went to parallel columns for the English and French to comply with the French Language Services Act. So both of these versions, this one, the smaller version, and this one, are equally authoritative.
I really would recommend that we follow Mr Elston's suggestion that we use either the small one or the big one and we all use exactly the same one. Otherwise, we are on different page counts, we are on different line counts, we are on all sorts of things. So that would reduce the paper blizzard considerably.
Mr Elston: Mr Chair, I want to agree with legislative counsel on that and indicate how appalled I am that the ministry has really caused us such great injury. This is certainly holding us back in trying to get this bill done with all due haste.
Clerk of the Committee: I just have one suggestion. Instead of using the small bill, because there are no more copies of it available and not everyone has one, I will give everybody a new big one that has no amendments and a new package of the amendments, numbered.
The Chair: That is on Monday.
Can we return to the discussion of page 39a, now that those other issues have been dealt with?
Mr Harnick: Is that 39a yellow, gold or the white?
The Chair: There is only one 39a and it is the yellow.
Clerk of the Committee: Gold.
The Chair: Yellow or gold; whichever you wish to designate that colour.
Mr Wessenger: This is the motion that adds the director as a necessary party to a motion.
Mr Elston: May I just raise the issue under 3i? Surely the director is not a necessary party under the first -- no, just a minute. In fact, it is the difference between actually being a party to a clerical error and also -- I thought it had a part that talked about the actual entitlement that the motion was dealing with, but I may have been mistaken. I may have to just step that down for myself to go back through. If there is anything else, I can raise it later. I thought there was a part here where the director was being a necessary party to a motion that dealt with actual entitlement, but I probably got myself mixed up. I apologize for the delay.
The Chair: Any further discussion on 39a? All in favour?
Mr Morrow: Excuse me. Can I have a 10-minute bell, please?
The Chair: We will have a 10-minute recess.
The committee recessed at 1731.
1732
The Chair: We are resuming. We left off on the vote. All in favour of 39a? Opposed?
Motion agreed to.
The Chair: I am moving to page 41.
Mr Wessenger moves that subsection 3k(2) of the act, as set out in section 3 of the bill, as printed, be struck out and the following substituted:
"(2) The director may enforce payment under a support order to which this section applies as if a support deduction order had been made if the director considers it advisable to do so and the director shall enforce payment if the person entitled to receive support under the order requests enforcement under this section and the director considers it practical to do so."
Mr Wessenger: The only change is that the word "recipient" is replaced with the phrase "person entitled to receive support," since that is the phrase used throughout the Act. It is for consistency that we are making that change.
The Chair: Discussion?
Mr Elston: May I just ask a question that is not totally on point here but I think it is important for my understanding of the way the act goes? What happens if there has been a payment to the person entitled to receive, for instance, if a payment is made to a former spouse but that person does not pay on to a person who is in full-time attendance at school and who has a claim, actually, in relation to support?
Ms Pilcow: The child, you mean?
Mr Elston: The child, yes. Because that would be the person entitled to receive, would it not?
Ms Pilcow: The person entitled to receive support is the person named in the support order.
Mr Elston: So there is no situation where a payment may have been made to a former spouse who has not passed it on to support the child at school, for instance, which, I guess, could often occur.
Ms Pilcow: That is not to say that it cannot happen. It certainly can happen, and the payor's relief is then going to have to be against the recipient to change the court order.
Mr Elston: I am just thinking of a situation where the student child, or child student, whatever we want to call him, comes to court and says, "I am not receiving support from the payor," if we use this description. It seems to me then that even though the payment is made, I presume it becomes an overpayment issue with respect to the other spouse, or not?
Ms Pilcow: It would not, because the director is doing what the court order directed, paying to the person named in the order. It seems to me that the only relief would then be for the child or for someone, presumably the father or the payor on behalf of the child, to apply for a variation of the order in favour of the child as opposed to the spouse.
Mr Elston: Because if there was not a payment made voluntarily by the payor, that child presumably would have an action as against both his mother and father in that case, I guess, if he was not receiving support?
Mr Wessenger: Not against his father, no, because normally the support orders always say "shall pay to the petitioner or to the applicant."
Mr Elston: "On behalf of," though. Okay, just as long as we do not get somebody included in here whom we do not need to look for for complication purposes.
The Chair: Further discussion? All if favour of 41? Opposed?
Motion agreed to.
The Chair: Page 42 has already been carried. Page 43.
Mr Wessenger moves that subsections 3k(6) and (7) of the act, as set out in section 3 of the bill, as printed, be struck out and the following substituted:
"(6) The payor may, within 30 days of being served with the notice, commence a motion under section 3d in the appropriate court for a suspension of a support deduction order described in subsection (5).
"(7) If a motion has been brought under subsection (6), a support deduction order described in subsection (5) does not come into force until the motion has been determined."
Mr Wessenger: This amendment clarifies the original drafting. It is the motion which must be brought within 30 days; the original draft implies that the order itself must be obtained within that time frame. As drafted, the subsection is open to being misinterpreted as requiring that a motion to suspend be determined before the support deduction order comes into force. This makes it clear that only if a suspension motion is brought must a court determination be made before the support deduction order comes into force. So this is really clarification only of drafting, no change in substance at all.
The Chair: Discussion? All in favour? Opposed?
Motion agreed to.
The Chair: Page 44 is next?
Mr Harnick moves that section 3k of the act, as set out in section 3 of the bill, as printed, be amended by adding the following subsection:
"(10) Despite any other provision of this section, a payor who is not in arrears under a support order on the day this section comes into force and who is making the payments required under the support order shall not be required to make payments through a support deduction order described in subsection (5) unless at any time after this section comes into force he or she, without an explanation that is acceptable to the director, fails to make a payment under the support order when it is due."
Mr Harnick: My arguments are the same as the arguments I made under earlier sections, when we had the opportunity to eliminate those people who were paying anyway from an already overclogged system. I suspect that the government members have their marching orders and they will do the same with this amendment as they did with the others. They have to maintain universality and they have to make the system more difficult to operate and include more people in it than is necessary. They cannot allow anyone who is operating even under an order and complying with that order the opportunity to continue to do so without having to become involved in the system and have his income deducted at source and have everything go through the director's office, even when it is not necessary. There is no point belabouring this any longer. It is a reasonable amendment, it is talking about people who already have a proven track record of making their payments and there is no reason to include them in this system.
Mrs Mathyssen: Mr Chair, I think we would like to consider this carefully. In view of the lateness of the hour, I move that we adjourn for today and come back at this fresh on Monday.
The Chair: All in favour of adjournment?
Mr Elston: I would like to speak against that.
An hon member: I did not think it was debatable, Murray.
The Chair: We are adjourned until Monday.
The committee adjourned at 1742.