CONTENTS
Wednesday 27 February 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
Afternoon sitting
Adjournment
STANDING COMMITTEE ON ADMINISTRATION OFJUSTICE
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:
Cunningham, Dianne E. (London North PC) for Mr Harnick
Huget, Bob (Sarnia NDP) for Mr Mills
Kwinter, Monte (Wilson Heights L) for Mr Chiarelli
Ward, Brad (Brantford NDP) for Mrs Mathyssen
Waters, Daniel (Muskoka-Georgian Bay NDP) for Mr Winninger
Wessenger, Paul (Simcoe Centre NDP) for Mr F. Wilson
Also taking part:
Elston, Murray J. (Bruce L)
Murdock, Sharon (Sudbury NDP)
Clerk: Freedman, Lisa
Staff:
Revell, Donald, Legislative Counsel
Roux, Denis, Legal Advisor, Legislative Counsel
The committee met at 1003 in committee room 2.
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 3:
The Chair: The first item I believe is the amendment on page 11.
Mr Carr moves that section 3c of the act, as set out in section 3 of the bill, as printed, be amended by adding the following subsection:
"(3a) The director shall make a reasonable effort to contact an income source before serving the notice in order to ascertain the address to which the income source wishes the notice to be sent."
Any discussion? Mr Carr, would you like to start?
Mr Carr: Yes. Actually my colleague was going to speak to this, but it is fairly simple. I guess it came out of some of the recommendations. Sometimes with large companies -- for example, the government of Ontario -- there could be different buildings, and different companies have different addresses where payroll goes. Sometimes what may happen is, notwithstanding the time that notice is in, it could go to the wrong office, it could go to the wrong division, or whatever. This would probably alleviate that by allowing the company to say specifically where it would go to, and whom it could be addressed to so that it could expedite matters, particularly in some of the larger companies where just sending it out to the corporation does not necessarily mean it will get there. So we thought this would be something that would alleviate the situation that may occur where, for whatever reason, the court has a particular address and when it gets sent out it comes back. So it is rather simple, I would think.
Mr Kwinter: Mr Chairman, I would support this amendment, but I would like to recommend the change of one word. Where it says "the director shall make a reasonable effort to contact an income source," I think a more appropriate wording would be "to confirm an income source." You can make an effort to contact them without getting any information and it would seem to me that the intent is really to confirm it as opposed to contacting them.
The Chair: Are you suggesting that as a friendly amendment?
Mr Kwinter: Yes.
The Chair: Okay, if the committee can scratch the word "contact" and supplant it with "confirm." Mr Wessenger? I am sorry.
Mr Carr: The only thing I might add is that the intent is to confirm it. I was just wondering if, when we say "confirm," whether it might mean that you would not contact them to confirm that.
The Chair: I think the members have agreed to amend that to "contact and confirm." So we are on the second line, "(3a) The director shall make a reasonable effort to contact and confirm an income source..."
Mr Wessenger: I would like to speak against the amendment. First of all, the form itself will ask for the payroll office to be specified at the court hearing. In most cases the address will be correct. There would be a great deal of unnecessary work if you are going to confirm the 95% or 90% of them, whatever it is, and it may be 98% that are correct, to try to catch the 2% or so that are not correct. Last, if you put this into the legislation you are increasing the cost of the program considerably.
You are looking at an additional 10 employees and I am surprised that my friends would want to add an additional 10 employees to government service in order to implement this program. Certainly I am very cognizant of the cost aspects of this program and I certainly want to see any program that this government introduces be as efficient as possible and as least costly as possible. Particularly in the present economic circumstances, government has to be lean, and I do not want to see unnecessary expenses added. I think this would add an unnecessary expense to the program.
Mr Sorbara: I have a question, then. Let us hear from the parliamentary assistant, or whoever else wants to speak, what systems are in place for confidentiality and integrity of the process. We have heard stories about notices of garnishment going out to employers, where it goes to the wrong employer, it gets opened by someone and gets passed around to 10 other people before it is finally determined that it is the wrong company.
For some people that is very private information. I am not sure if information regarding your separation and your support payments are something that you want to make public, but there are some people who do not want that information to be public. Mr Carr, correct me if I am wrong, but I understand that this little provision -- not 10 employees' worth, come on, do not give us that nonsense -- is just to ensure that information is kept confidential and to do it in a statutory way.
Mr Wessenger: First of all, I might say that the information is provided by the payor to the court. So it is the payor himself who is providing that information. So if there is a mistake made it is the payor making the mistake, not someone else.
Mr Sorbara: No, no. I am sorry to interrupt here, but we have established earlier that these things can be filled out in blank, without any employer put in, and the payor, who is really the debtor --
Mr B. Ward: On a point of order, are we not supposed to have the debate and the discussion going through the Chair rather than --
Mr Sorbara: We have a new guy on the committee, Mr Chair. Actually, it was going quite well. It was really going quite well.
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Mr B. Ward: I am not familiar with the procedures here, Mr Chairman, so it may take a little while for me --
The Chair: It is somewhat looser than in the House. None the less, Mr Wessenger did have the floor.
Mr Wessenger: The other aspect: It is the policy right now to send out a notice to the attention of the payroll office. It is always put on every notice that goes out to every employer, "Attention: payroll office."
Mr Sorbara: Now, Mr Wessenger, I do not want to interrupt Mr Carr because this is his amendment so I will just ask one more question.
We established here in this committee that under this act a support deduction order can be filled out in blank, that is, without including the name of any employer. Those occasions might arise when that information is unavailable or unknown, or there is no employer. So we have established that in some instances that order, which would still be valid and have the full force and effect of a support deduction order, would come into the possession of the enforcement office, which is no longer going to be called an enforcement office, and some official in the enforcement office could fill in the information.
We established as well, by way of my example, that the employer might be McDonald's, corner of Yonge and Wellesley, and it might go out in that form without the specific information.
I am asking, once again: What measures are you going to put in the law to ensure that this sort of confidential information does not get into the wrong hands? Point to where that exists in the statute now or what amendments you propose, to make that part of it.
Poor Mr Carr and Mr Harnick and Mrs Cunningham do not have the resources that you have to deal with these things. They have put forward a simple amendment which suggests that we do that. What are you doing about it?
Mr Wessenger: I would suggest that this is not a matter that should be in legislation but should be considered in policy guidelines for the branch. I am uncertain what the policy guidelines are now with respect to an anonymous tip with respect to a person's place of employment. Perhaps I could be advised as to what the branch policy now is -- supposing you get an anonymous tip that someone is working at a place, do you just blindly send out a notice or do you check it?
Mr Sorbara: Do you not see what you are saying in that regard?
The Chair: Excuse me --
Mr Sorbara: Excuse me, I am in the middle of a question, Mr Chairman. Do you not see what you are saying in that regard? What you are telling this committee is that the politicians ought not to worry about the protection of privacy for the individual; we will just leave that to administration. That is offensive to the politician.
There are some things that you want to put specifically in the law, like an automatic deduction order. Yet at the same time you are saying that the interest of the individual in the protection of privacy is not something that I, a parliamentary assistant, or the government or the Attorney General believes needs the protection of statute.
You are a lawyer. We could leave all things to administrative discretion or we could put some things in a statute and say, "I want a law to that effect." I do not want to know what the policy guidelines are. I want to know why you do not want to put it in law.
Mr Wessenger: In my opinion, this is something that properly belongs in administrative guidelines and does not belong in legislation.
Mr Carr: The only point I was going to make is that we have got some confidential information and I was going to ask for clarification too. When you have information like this, quite often in organizations there is a person who opens all the mail. Personal information that is going out about something like this -- is it the policy to have it addressed "Personal, confidential, for payroll people only"?
Because what may happen is that you may have a secretary who receives the mail right at the front desk, opening it and then finding out: "Oh, here's an order. Mr Whoever owes his wife X amount of money." And we are trying to avoid that situation, trying to keep it so that only those who need to do it for payroll purposes -- and they look at everything in payroll, how much you are making and so on -- keep it as narrow as possible in terms of the number of people who would have access to this private information.
I guess my feeling and our critic's feeling was the same: If we make it as part of the statute rather than leaving it up to the policy, then we are going to be assured that every reasonable means is taken to ensure that the confidence is kept in this very delicate situation.
That was the only point we were trying to make with this. I can see where it would come in to some individual in the company. It gets ripped open, then get distributed, and boom, then it is all over the office about the situation. That could be very, very delicate to a lot of people.
The Chair: Were you wanting those concerns to be addressed?
Mr Carr: Yes. I would like to have the concerns in there, but I would at least feel better, if this amendment is going to get defeated, that we are going to look at it in another area anyway.
Ms Feldman: As Mr Wessenger said earlier, addressing your concern, Mr Carr, if the notice of the support deduction order is specifically addressed to the payroll office, then I do not think that anything that can legislatively be done is going to assist the internal practices of those corporations that might have people who rip open mail regardless of whom it is addressed to.
Second, the support deduction orders, as are garnishments, are public documents, but that does not address your concern specifically.
Third, if in the course of trace-and-locate, which is Mr Sorbara's concern, where we have a blank support deduction order with no income source identified, if in the course of the field's trace-and-locate operation they identify what they think is an employer of a payor, that investigation operationally should go further and get an address to which to send the support deduction order. Again, it would be addressed to payroll office.
Fourth, with 1,200 orders coming in monthly, if there was a legislative blanket provision where confirmation and contact had to be made by a person in office with respect to each of those particular orders, then we have got two potential problems: One, the delay aspect in order to contact income sources on 1,200 orders for the 2% that may be incorrectly addressed; and second, the fact that certain entities will raise problems and disputes at the front end rather than formally after all the information is received and reviewed by them with the package that goes to them with the notice of the support deduction order.
So it really is a very difficult task. It seems like a straightforward provision, but actually it is quite difficult to implement legislatively, although from an operational point of view it should be done. We do try to ensure confidentiality.
Mr Carr: Does it go out in anything saying "Personal and confidential" now, or is it just "Payroll"?
Ms Feldman: Again, so far as it is a public document, being a court document, I do not believe it says "Personal and confidential" on the envelope.
Mr Carr: But of course, if anybody has seen court documents, not too many people go through them. It is very unlikely that people are going to. You can look up everything. Everyone knows what MPPs' salaries are, but a lot of people do not know that because they do not take the time.
So having it in court documents is not going to be as easily accessible in terms of privacy as somebody opening the wrong information and so on. My feeling is that if we had something to say "Personal and confidential for payroll," then it may alleviate some of the problems that are going to happen.
In any corporation the person who opens the mail right at the front as it comes in will then pull it out, read it to ascertain what section it will go to, and immediately that person knows the amount and the circumstances of something that is very personal. As I said before, we obviously cannot get away from the payroll department, but we should be able to get away from having the person opening that document -- unfortunately what happens is then it gets spread around. I think that saying that it is in the court document so it is public knowledge, and we should not take any measures to try to keep it confidential, is wrong.
It looks like this particular amendment is going to be defeated since the parliamentary assistant is against it, but I would hope that we would look at some type of measures to try to make it as confidential as we can. Just like some people are very open about how much they make, they will tell their friends, "I make X amount," for other people that is a very private matter. Since this amendment will not work, I would encourage some type of process where we can try to make it as confidential as possible in something that is very sensitive to a lot of people.
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Mrs E. Mills: Mr Carr, I would like to respond to that and certainly I think your latter comments are well taken. Clearly, in designing how we communicate with employers, I have no difficulty in saying we will give due consideration or full consideration; even though it says, "Attention payroll," I have no difficulty with saying we will try and look at putting on the envelope, "This contains personal information," or something. I think to go beyond that, we cannot regulate what companies are going to do and how they are going to deal with their information, but we can look at how we send it out, even on the envelope, in addition to "Attention payroll," to have some sort of notification that it contains personal information. I think anything going to payroll departments, whether it be insurance or whatever, does. But we will take that under consideration. I do think this amendment -- you have to split it between those new deduction orders coming in, and as Mr Wessenger said earlier, there has to be a responsibility on the payor and the court to get the correct information. When we are getting that information, to then have to check it is an unnecessary step for that 2% or whatever it might be.
In the case Mr Sorbara is talking about, we are talking about later on where you may have had a blanket order that initially did not have an employer, or for whatever reason. It has probably now come about because of those trace-and-locate functions, and clearly in those functions we do the best we can to confirm whatever tip we have been given and however we gather the information to make sure it is valid.
Mr Kwinter: I just wanted to comment that this amendment serves two purposes: one is the one that Mr Carr referred to, that even when it goes to the place, to make sure it goes to the right place. My concern was the issue that the director was just talking about, that you could have a situation, to get back to the example that Mr Sorbara used -- to talk about the various machinations that could take place with someone who is moving around; that a spouse of a payee finds out second-hand, someone calls her and says, "You know what, I just saw your ex-husband and he is working at McDonald's." She says, "No kidding," and she goes down and tries to find him but does not, then contacts SCOE and says, "This is where my husband is." Whether he is there or not, who knows, but she has been told that and she is the one who is making the call. It would seem to me that it was at that point that there should be some provision whereby that particular source could be confirmed before that notice was sent out.
Mrs E. Mills: That is what happens, Mr Kwinter. I was just wishing I had brought some statistics up here because, since we have been really tackling the backlog, we have been making a particular attempt to tackle what we call the "hot tips" from whoever calls into the central inquiry. Those are given as full an investigation as we can possibly give before we take any action. Where they have said, "We think he may be working at, because so-and-so has told me," certainly that is confirmed before any other action is taken. But the hot tips, about 90% of the tips, as we call them, that we get, do come from the recipient or the creditor, calling in information which we then have to try and follow up on, but we do not act on ambiguous information. You cannot go and seek garnishment unless you are sure you have an employer and an address and all that kind of stuff.
Mr Elston: This, perhaps, is a good place for me to intervene about some concerns with the legislation dealing with protection of privacy. As everyone here knows, there is a committee of legislators who are now interviewing people for the position of commissioner, but one of the incidents that was conveyed to us was an incident with SCOE where a letter had been sent to an employer, a major manufacturer. The letter had been addressed from SCOE to the individual at his workplace, except the workplace is pretty large; it is pretty decentralized, and before it finally found the person, it was opened and viewed by no less than 10 or 12 people. They had the right address; they had the right employer, but all these people who opened the letter and reviewed it to try and find out where this person was know about the affairs of this particular individual. One of the concerns we had when people made presentations here was to guard against the incidents of unwarranted access to the privacy of either the payor or the payee, but in this case it was the payor. I know that issue is here again raised and I would want this bill to take every step possible to make sure that as few people as possible actually know the details of people's individual human lives.
I was responsible for the Freedom of Information and Protection of Privacy Act, and I think the next big series of issues is going to be the protection of privacy, particularly with this bill. It even becomes more crucial because, to be quite blunt, we are going to intervene in voluntary situations now where people need not have known anything about this. Unless you tighten the sections up to make sure that you are not going out to say, "X owes Y money because of a marital breakdown," we are going to be into some very big problems and conflicts with the protection of privacy act.
Just in the manner of supporting the tightening up of the act, and my final question would be: Has this received the good housekeeping seal of approval from the protection of privacy section in the Office of the Information and Privacy Commissioner, because this will, I think, cause lots of interventions by them.
Mr Wessenger: Okay. They have looked at it and they have suggested no amendments, I am advised.
Mr Elston: That is different, though. That is different from them saying that they approve of it, rather than having said they did not suggest any amendments. Their role is to bring forth issues. This was an issue that I found out about, an intervention by SCOE with respect to this former act in some of the practices. I suspect that they would probably have issued a warning that you had better make sure this is tight. I just leave this as a tightening-up process.
Mr Wessenger: I think in that former situation the practice was not to put "Payroll department" on the notice back at that stage, and as a result of that case they changed the policy and put "Payroll department" on, so there was an administrative change in response to that situation as I understand. I am sure the present director is very cognizant of the whole question of privacy and certainly she is aware of the need to preserve privacy.
Mr Elston: Are we sure, then, that this is not going to violate the protection of privacy act?
Mr Wessenger: We certainly have no comments that it is going to violate it.
Mr Sorbara: Well, then, why do we not just join hands and pass this amendment? Is this something that is so offensive to the government party? If you listen to the testimony of the director, she says that basically she does this anyway.
Mr Wessenger: No, that is not correct. She does it in the situation where there is a hot tip, she does not do it in the initial orders.
Mr Sorbara: My understanding was that she said they take reasonable effort to contact the income source before the notice is served.
Mr Wessenger: That is in the case of a hot tip, not in the case of an initial notice where you are aware of the other information --
Mr Sorbara: What about inappropriate cases, or in cases where the payor's right to privacy might be infringed? What could happen if you passed this and then the director breached the duty? Not very much. Do you know what would happen? The director might get sued and if there were real damages then the director might have to pay. But I ask Mr Wessenger, who is also a lawyer, what level might those damages be. What are we talking about? Is the government so at risk? Is it so worried about its own competence that it would not want to set itself at risk? What is the problem here? Why are you so opposed to a simple little item that adds a little bit more security to the politicians that an individual's right to privacy will be protected? I ask the parliamentary assistant, who are you protecting? What is the problem?
Mr Wessenger: I think I have indicated that I felt it should be an administrative matter, as a matter of policy --
Mr Sorbara: You know there were politicians who used to say that about minimum wage and the rights in the workplace and rights to bargain collectively. That should be administrative. Leave it to --
Mr Wessenger: In addition, I do not want to impose additional costs on this program that I feel are unnecessary.
Mr Sorbara: Oh my goodness. It just shows again that this is a right-wing reactionary bill.
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Mrs Cunningham: I thought I came here this morning to witness some putting together of the minds. The principle behind this amendment is the principle behind the amendments that the government put forth, and I consider that this one was just one that you missed, given your philosophy. You missed it and we helped you out. You will see that philosophy behind every amendment that we put forth, and if there is not a good reason coming from the government for not supporting all of the amendments that we put forth; based on one principle, the same principle that you have based many of your amendments on, which is public input from very important groups who took the time to tell you where you could fix up a very complicated piece of legislation that is difficult to read, difficult to follow -- that is why some of us are sitting here, to help out a little bit.
If you give me a good reason for not supporting this, Mr Chairman, I would feel much better. So far, as I have chatted with my colleague, I have not heard one. In fact, the reason for not supporting it is inconsistent in all the reasons you asked us to support your amendments. Do not use the word "administrator" around me because I think we have a lot of administrative pieces and amendments that have been put forward
The Chair: Mrs Cunningham, they are not my amendments, but rather the government's amendments Mr Wessenger is representing.
Mrs Cunningham: Mr Chairman, if I have to shout at somebody, I would rather shout at you. You are not nearly as sensitive as others in this room. Therefore, bear with me.
Mr Wessenger: The one thing that members should remember is that the director is subject to the privacy and information act.
Mrs Cunningham: That is correct. I am not concerned about that. If you take a look at the choice of words, "reasonable effort." In the education program perhaps it would be helpful if in fact -- and I am assuming there will be an education program a very important education program that goes along with this legislation, for a number of reasons. First of all, everybody asked for it; everybody feels that one has to be enlightened around why the government feels that it is necessary to bring forth such a bill, and certainly the principles and the purposes for the director and her staff across the province as to why these amendments were even put. This one is put because the multi-branch corporations -- in this case, the Canadian Bankers' Association -- brought to our attention a very real concern, that a bank's or corporation's notice of support deduction order must be mailed to a specific address, such as payroll division, head office.
This amendment is basically to take a look at, where appropriate, those kinds of contacts that should be clarified. I do not feel that because this amendment is being enforced everybody has to be phoned, but I think it is an amendment in good faith letting the director know that we expect especially -- and this could be part of the education program where we get large corporate offices involved, and there are many of them -- that reasonable effort to contact an income source before serving the notice. It is a direction in legislation, and there are other directions in this legislation which the government has put forth which we supported. That is why it says "a reasonable effort" and that is why we did not go into more work in being more specific around the request on page 3 of the Legislative Research Service, which I am sure everybody is following. After all, research gives us information so we can use it wisely.
Mr Wessenger: I think there is some misapprehension here. This would bind every case and require a telephone contact in every case.
Mrs Cunningham: Why? What says every case? I certainly do not want everybody to be contacted?
Mr Wessenger: That is certainly the way I interpret it as a lawyer.
Mrs Cunningham: Fix it for me, I do not want every case. If you are the lawyer, I am here to have my amendment improved upon by the research or by the legislative people. If you do not like the amendment because it is not helpful, tell me it is not helpful.
Mr Wessenger: I mean, I --
Mrs Cunningham: Fix it.
Mr Wessenger: I can make a suggestion.
Mrs Cunningham: Good.
Mr Sorbara: Okay, propose an amendment. Go further. Tell us what you want.
Mrs Cunningham: Help us.
Mr Wessenger: "Where the director believes it necessary."
Mrs Cunningham: Fine. That is very positive. Do you want me to change my wording, Mr Chairman? What makes this whole thing simple?
The Chair: Are we changing the amendment then?
Mrs Cunningham: Yes.
The Chair: To?
Mrs Cunningham: I will take your guidance on that, Mr Chairman.
The Chair: Mr Wessenger's guidance? To?
Mr Wessenger: Add the words "where the director believes -- "Let legislative counsel do it for us to make sure it is done properly. I think that it is a --
The Chair: I would suggest that would be incorporated in the amendment, seeing that it is the same party putting them both forward.
Mr Wessenger: No, it is not mine. I am just agreeing.
The Chair: Can we put the section down temporarily?
Mrs Cunningham: I do not even care who gets the credit for it as long as it gets in there. Do you want the credit, Mark? Mark is going to do it. He has been sitting here long enough to get the credit for something, Mr Chairman.
The Chair: May we stand this section down so that we can get the proper wording and bring it back when that wording is available?
Mrs Cunningham: Sure.
Mr Morrow: Can I move that this section be stood down?
The Chair: Unanimous consent? Received. Thank you. Moving on to -- the clerk informs me we should be looking at page 13 before page 12.
Mr Wessenger: Why?
The Chair: If you would like the rationale, I am sure the staff would be willing to provide it.
Clerk of the Committee: The reason why we are doing page 13 before page 12 is for the simple reason that if page 13 passes, there is no need for page 12 because page 13 incorporates the amendment that is on page 12. So we will do 13 first, and if it does not pass we will then do 12.
Mr Sorbara: Go ahead, Dianne, this is your baby.
The Chair: Mrs Cunningham.
Mr Wessenger: May I just ask a question here? It seems that certainly there is an inconsistency because one is seven days and the other, in effect, could be nine days, it could be 10 days because if you will notice the other one says "excluding Saturdays, Sundays and holidays." So there is, in effect, a difference; they are contradictory.
Mrs Cunningham: First of all, I think it is a good idea in the interests of democracy that we should be allowed to introduce our motion first.
The Chair: I do not think there needs to be further discussion on this point. The clerk confirmed that it should be page 13 first. So, if we could proceed with that amendment. Mrs Cunningham.
Mrs Cunningham: All right. Mr Chairman, may I beg the indulgence of the committee in introducing this one, because quite frankly I think the government and our --
The Chair: Could you move before you speak?
Mrs Cunningham: Okay, I will.
The Chair: Mrs Cunningham moves that subsection 3c(4) of the act, as set out in section 3 of the bill, as printed, be struck out and the following substituted:
"(4) The notice shall be deemed to have been served on the individual, corporation or other entity to whom it was mailed on the seventh day following mailing, excluding Saturdays, Sundays and holidays, unless the contrary is shown."
Mrs Cunningham: In the interests of getting through this bill today and being positive, I feel the government was probably trying, in response to public input again -- and this was the Canadian Federation of Independent Business, which I thought was telling us that the time frame was too short and it was trying to lengthen it -- to be specific in excluding Saturdays, Sundays and holidays. Possibly based on my own experience in school boards and in my work as a social worker, working days were always a problem. Some people work on Saturdays and Sundays and working days were always a problem, so that is why we were trying to be very specific, given the kinds of people who are going to be reading this legislation and their state of mind, many of the people. We were trying to be very clear.
Again, I would take some advice, if I may, from the parliamentary assistant. We are both trying to achieve the same thing. Perhaps he would like to tell us what he thinks of this particular motion. Both of us, I think, are trying to extend the time frame, and I was trying to be very specific here because people do get mixed up on what "working days" means, and so I would like the advice of --
Mr Wessenger: If I just might comment on that --
Mrs Cunningham: Is this going to be a pleasant comment?
Mr Wessenger: Yes, this will be a pleasant comment. The reason for us choosing a straight seven days was basically to more or less comply with what is in the rules of civil procedure. So the seven days basically comply with the rules of procedure which makes it standard throughout what is deemed in court proceedings. So we certainly think it is a good sense of trying to make this conform to the rules of procedure.
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The other aspect is that the word "holiday" creates some ambiguity in the situation. What is a holiday and what is not? So that is the reason why we said seven days.
Mr Sorbara: "Holiday" is a special definition. The Retail Business Holidays Act defines it.
Mr Wessenger: The basic reason I would say then is the whole question that if it is reasonable in the rules of practice and has been worked out by the Law Society of Upper Canada, it would seem a reasonable test for us to adopt the same standard.
Mr Carr: That is when the postal system used to work.
Mr Wessenger: I think by changing from five to seven -- and the other aspect we should remember is that it has the provision that unless the contrary is shown, it is deemed to be served.
It is very simple to show the contrary because all a person has to say is, "I didn't receive it," and the contrary is shown. We are deeming it to be made. The only time it comes into effect is when somebody is not able to say what date he received the notice. But they have the right to get up and say and then their word has to be accepted, basically, unless the court has some reason to think they are not telling the truth.
Mr Carr: So there must be an "unless the contrary is shown" portion --
Mr Wessenger: It is in there. It is right in there now, "unless the contrary is shown." So a person is not going to be bound by something if there is a delay in the mail. Most businesses do have date stamps, for instance.
Mr Sorbara: We have a problem here, and that is that the parliamentary assistant to the Attorney General is not reading his notes. He should read the notes before he makes the speeches.
If he turns to page 17 of the annotated history of Bill 17, he will notice that, at least according to his officials, the five-day rule is consistent with the rules of civil procedure, not the seven-day rule. In fact, I will read it for him. It says, "The amendment providing for the five-day rule," the fifth day following mailing, it says, "is consistent with the rules of civil procedure, which provide that where a document is served by mail, service is effective on the fifth day after the document is mailed."
Then the government is going to propose an amendment as soon as Mrs Cunningham's amendment is defeated --
Mrs Cunningham: Oh, Mr Sorbara.
Mr Sorbara: -- and I am going to vote against it; I want to tell her that right now -- saying that they are proposing to move to the seventh day. The reason is that this amendment was made in response to suggestions from business groups which indicated that a five-day deemed- service rule was unrealistic.
Let me tell my friend the parliamentary assistant that the argument you first made is a good one. We ought not to burden the legal community, and their clients specifically, with all sorts of different rules in respect of notice and service rules. It is wrong. Some judge will, when he sees this, get very angry and rule that service has been made notwithstanding that, because the tradition had been five days. He will find some technical rule to get over the seven-day rule. We should not put seven days here because we want to placate some group that came to a committee. If the Attorney General or his parliamentary assistant wants to change the rules of civil procedure and wants to consult about it, that would be a good thing. Maybe seven days is a different standard that we should be working towards. But please, let's not have a seven-day rule for SCOE and a five-day rule for statements of claim and a six-day rule for writs of possession under the Landlord and Tenant Act. It is not good public policy. This is not partisan; I just want to make a little plea here for consistency in the way in which we provide for these sorts of things. Is that not reasonable?
Mr Wessenger: Could I ask that we have a three-minute recess so that I can consult with --
Ms Pilcow: I could just answer that question. In fact, the rules of civil procedure provide for five days of deemed service, but the rules also provide a very long list of rules, as you may recall, setting out how you calculate time. One of those rules is that holidays and weekends are not counted in those five days, so rather than set out all of the rules that are set out in the rules of civil procedure in this act, we have made it more or less consistent, because five days not including weekends usually will be seven days.
Mr Sorbara: I just say to counsel then, we could change subsection 3c(4) to read, "Five days consistent with the rules of civil procedure," or, "shall be the same as those contained in the rules of civil procedure."
Ms Pilcow: Except that this makes it all contained in one act. Nobody has to look to another book. In fact, the times will be almost the same as we could make them and keeping them all contained in one document.
Mr Sorbara: Okay. But then I say to you that your annotated document --
The Chair: We had a request for a short recess.
Mrs Cunningham: We are probably fine talking out loud because I am here to fill up a chair and I am listening with interest.
Mr Sorbara: But I just want to say that the annotated document -- and I am going to defer to my colleague Mr Kwinter in a second -- is wrong because you say that we are doing this because it is consistent with the rules of civil procedure. I really am trying to make an argument here for consistency. It is in the best interest not of the legal group -- I am not here to protect the legal profession -- but their clients who rely on this.
Ms Pilcow: I apologize if the annotation is not correct. I should have set out that the way it is calculated under the rules is different. That, I guess, escaped us and that is why we decided to change it. So that is my mistake.
Mr Wessenger: I think basically the position is that, rather than referring to the rules of practice in the legislation -- that would cause more complexity to employers if you had that situation of having them refer to the rules of practice -- what counsel have suggested is using the seven-day period, which would normally be the same as the rules of practice. There might occasionally be an exception, but it would normally be the rules of practice. So that is the reason for the seven days. I think we should be as consistent as possible with this question of time periods because it is certainly desirable to have as close to consistency as we can have.
Mrs Cunningham: On that point I appreciated the fact that the government put their motion forth to the seven days because I think they were responding to what was a very good suggestion as it came before us. I am not here to make changes because somebody comes before a committee every time, but I think we thoughtfully went through what we thought was reasonable and helpful. This one, we thought, was reasonable and helpful. So I thank the government for responding as well.
All we wanted was that people did not have to refer to other documents to spell out the Saturdays, and in fact we had some help from the legislative counsel in doing so. That was the only reason we put those words in, because we thought it would be very clear and people would not have to refer to another document, the rules of practice. So you are saying really, you do not think it is necessary to put the Saturdays, Sundays and holidays in.
Mr Wessenger: I do not think it is necessary.
Mrs Cunningham: Then it is not more helpful for people who are using this legislation.
Mr Wessenger: I think it would be less helpful for them and create more confusion. I think it is easier for them to have a set --
Mrs Cunningham: And we were trying to do the very opposite.
Mr Wessenger: -- a set time period.
Mrs Cunningham: We were trying to make it easier by letting them know --
Mr Wessenger: I think it is easier for people if they do not have to interpret something. If it just says X days,
then it is much easier for them to interpret. I think our amendment does have the aspect of being as close as we can be to --
Mrs Cunningham: I do not have a problem with that. I was trying to even be more specific.
Mr Wessenger: Right. Yes, I understand that.
The Chair: Are you suggesting that you are withdrawing your amendment in favour of the government --
Mrs Cunningham: No, I will not withdraw it, because although we disagree here to the extent that we are both trying to do the same thing, I happen, from a layman's point of view, to think that this is clearer.
The Chair: So you prefer your own.
Mrs Cunningham: So I will let our amendment stand. But Mr Sorbara has his hand up and maybe he has something that will help us along here.
Mr Sorbara: This is not a section to benefit employers or employees. This is a lawyer's section.
Mrs Cunningham: Oh, that is too bad.
Mr Sorbara: No. Dianne, just --
Mrs Cunningham: Oh, you have just ruined my day.
Mr Sorbara: -- just to explain it to you: If there is any question about when the employer actually received the notice, the law has to establish some sort of deeming provision to say, "You are deemed to have received it six days or five days or 100 days after I put it in the mail." It is only used in the context of a court battle as to whether or not the person actually knew of it. I am sorry that laws have to deal with these sorts of things, but they do. And to create yet another fallacy --
Mrs Cunningham: I do not worry about laws; I worry about lawyers.
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Mr Sorbara: So do I. But it is so silly to have one notice provision for a notice under SCOE and another notice provision if you are serving a statement of claim, as if somehow you give it to a different postal service. Consistency would be that if you drop a legal document in the mail and you are going to have some sort of deeming provision, it should be the same for whatever document it is. If the document is really important you cannot say, "We'll pretend that the post office got it there in a day," and if it is not important, "Well, 14 days." It is the same post office. They will be as efficient or as inefficient as the government of Canada determines that they are going to be, based on the level of service that they want to provide. But why in the world would we set up a different notice provision for this support deduction order than we do for any other documents that lawyers or courts mail or file?
I do not care. I promise not to speak on this issue any more. But I think it is the height of stupidity to say that we will have a different rule for these than the ones that we will have for a statement of claim in a suit.
Mrs Cunningham: On the statement that Mr Sorbara just made, it is one of the main reasons that I got myself elected. And sometimes just because we have rules of practice that have been there for long periods of time, there has to be slow and careful progress in the world to change. I do not like the rules of practice because I do not think, in general, they serve the purpose of the public, given the state of the mail in Canada. Okay? I do not think it is long enough any more. So I wish we could change the rules of practice with this bill but we cannot. So we will make one giant leap forward and change five days to seven days because it makes good sense for families.
I also disagree with Mr Sorbara in that I know in my work -- and I am not talking about my former life when I used to work with families and help them a lot -- I was not hopefully involved in any legal cases if I could help it, because it was a waste of emotional energy and time that families had to support each other. So we stayed away from the courts as far as possible. That is why you hear me talk about supervised access a lot. But we still had to know the rules, and laypersons like myself had to be able to read this legislation and advise the mothers and the fathers and the children who came to me. So I do not feel it is just for people who are in dispute --
Mr Sorbara: This section is just for lawyers --
Mrs Cunningham: I do not agree with you --
Mr Sorbara: Sorry, but it is --
Mrs Cunningham: I think it is not just for lawyers. In fact I have proof that it is not for lawyers --
Mr Sorbara: Prove it.
Mrs Cunningham: I will prove it. I will prove to you, Mr Sorbara, through the Chair, with respect, that in fact the CFIB, which is the Canadian Federation of Independent Business, I believe, felt it was important for them in administering this act as small business persons that they make this change, and therefore --
Mr Sorbara: So they could legally protect themselves.
Mrs Cunningham: Well, fine. They could be fined if they do not comply with this legislation by not either receiving something or working within a time frame. So this should be a piece of legislation that everybody understands and uses, and not just lawyers. In fact I wish we did not have any lawyers who had to use it, but you know my feelings on that.
Having said that, Mr Chairman, we have to come to a conclusion here. I still think that our amendment expands upon the seven days and is more helpful to people as well as lawyers in serving this legislation. I understand and I appreciate the conversation we have had here this morning with the government. I can tell you where this is going but I still want it to stand, because I think we were trying to make a helpful suggestion to make the act more useful for all of those concerned. So I would ask, Mr Chairman, that you deal with it in any way you see fit.
Mr Carr: The only point I was going to make, in defence of our postal system, is that the big problem is that we are talking about expanding this. Ten years ago they were not moving the volumes that they are moving now. So quite frankly probably five days would have done it. As volumes increase, as they are probably daily now, seven may need to be the situation. It is not really a reflection even on the post office. It is just that they are now moving the volumes of mail that have increased. Quite frankly, anybody who has followed it realizes that on-time delivery has been expanded because of the large volumes. As Dianne, my colleague, has said, we have a situation where small businesses are saying to us, the Canadian Federation of Independent Business, that they need more time because of the present situation.
The reality is that it does not get into their hands. So whether we spell it out with the holidays, which I think -- again as a layman -- makes it very simple for myself to understand, or whether we lay it out with the other amendment in just legal terms, is not the point. But I think it needs to be expanded and I do not think it is just for lawyers and, quite frankly, I disagree when we say, "Let's keep everything the same," because that time is not working. At some point, what we should do is go back into some of the other legislation and make the necessary changes. We cannot do that, but we can change this.
The Chair: Mr Sorbara, with your indulgence, Mr Wessenger has what he hopes to be a friendly amendment to the amendment Mrs Cunningham put forth.
Mr Sorbara: I do not want to indulge him right now, and I was next on the list. I just want to put one question for legislative counsel and Mr Wessenger to help me and my caucus determine how to vote. There are three proposals, really, on the table.
The Chair: Legislative counsel is not here.
Mr Sorbara: There are three possibilities on the table. One is that we have the five-day rule as originally contained in the bill. The second is Mrs Cunningham's amendment which includes a reference to Saturdays, Sundays and holidays; and then there is a government amendment which is the same as in the bill but changes five to seven. I would like to know, for our purposes, which is closest to the rules of civil procedure.
Mr Wessenger: I think probably the seven days is closer, but I have another alternative to throw to Mrs Cunningham, if she is willing to consider it, which would make it even closer to the rules of practice. That would be to take out the seventh day in her amendment and make it "the fifth day following mailing, excluding Saturdays, Sundays and statutory holidays."
Mr Morrow: Could you say that again, Mr Wessenger?
Mr Wessenger: "The notice shall be deemed to have been served on the individual, corporation or other entity to whom it was mailed on the fifth day following mailing, excluding Saturdays, Sundays and statutory holidays, unless the contrary is shown." That would be almost exactly as it is in the rules of practice.
Mr Sorbara: I would like a ruling from legislative counsel.
The Chair: And then your amendment would follow.
Mr Wessenger: No, then our amendment would not be necessary.
The Chair: Okay.
Mrs Cunningham: That is fine.
Mr Wessenger: If you would like to make that change from the seventh to the fifth we certainly could accept that.
Mr Sorbara: I do not have any objection if that is part of the amendment. We will give unanimous consent. It does not really matter what amendment is on the table.
I guess perhaps legislative counsel can argue this. We have got three alternatives for this deemed service provision. One is what was contained in the bill, and that is a five-day provision, five days following mailing. The second is Dianne Cunningham's original amendment, which has a seven-day point following mailing, excluding Saturdays, Sundays and holidays. The third is the government's proposed amendment, which is the same as what is in the bill except seven days rather than five. Which is closest, Don, to the rules of civil procedure, the rules of practice?
Mr Revell: Unfortunately, Mr Sorbara, I am not sure which one is closest. I have not got the rules of practice with me. We could do that research for you. I believe that it is more likely that there may be other people at this table who go to court more often than I do, which is exactly never, and --
Mrs Cunningham: That is why you are so helpful.
Mr Sorbara: Then let me just ask one other question of the people who are here and know this act. Are there any other deemed service provisions in this act? There are?
Ms Pilcow: Three of them, three identical to this one.
Mr Sorbara: Identical to what?
Ms Pilcow: To the one that is proposed. There are three places in which there is a deemed service rule of five days.
Mr Sorbara: Of five days?
Ms Pilcow: Yes. This proposal would change it to seven.
Mr Sorbara: Can we make sure that if we change one to seven we change them all to seven? That takes more amendments than what we have got on the table.
Ms Pilcow: They are coming up in the appropriate place.
Mrs Cunningham: They are there, actually, already.
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2federMr Sorbara: Okay, so just let me ask one more question. What do you want to have here?
Mrs Cunningham: I think your question is very important and that would satisfy me. I would rather see the days spelled out, for the reasons that I have given, obviously, that the government is saying, "That's probably a good idea," and, "That is fine if we can make it work." On the other hand, I do have respect for your word "silly" and I do not want any amendment to appear "silly." I think that is why you asked the question.
Mr Sorbara: Yes.
Mrs Cunningham: Therefore, either we wait and find out the answer to your question, which is fine by me, because I think all of us want the best piece of legislation as far as possible at the end of the day -- so I am happy to do whatever you would recommend on this one.
Mr Wessenger: My own personal recommendation is that the seven days is simpler and easier to understand, a straight seven days without the holidays. The second position of making it the fifth day excluding holidays does make it comply with the rules of practice, but it does detract, I think, from making it specific and certain. It is simpler to just say seven days. And since -- unless the contrary is shown -- there is this provision in the act, it does not really prejudice the employers. Seven days is a reasonable period to deem, because he can always say he did not receive it that day, or received it later.
Mrs Cunningham: Yes, which he is going to say anyway. That question was raised by everybody, so people want to get off the hook.
Mr Wessenger: My actual preference would be for the straight seven days, but I --
Mrs Cunningham: But you do not look particularly unhappy on this one, under any circumstances.
Mr Wessenger: I can say the fifth day following, it does not --
Mrs Cunningham: So we will go for the amendment, "the fifth." We will accept that plus the inclusion of the word "statutory" --
Mr Wessenger: Okay.
Mrs Cunningham: I would ask that those words be changed with unanimous consent.
The Chair: Mr Morrow first and then Mr Kwinter.
Mr Morrow: With the indulgence of the committee --
Mr Sorbara: Denied.
Interjection: Watch this, Mr Sorbara.
Mr Morrow: Thank you, Mr Sorbara. I would ask that we stand this one down at the moment with the government additions to Mrs Cunningham's amendment. Is that fair?
Mrs Cunningham: As long as Mr Wessenger does not speak about this any more, because he should only have one vote. He has got all kinds of clout where he sits. Do not talk about this one over lunch.
Interjections.
Mr Kwinter: Mr Chairman, before we stand it down, could I just make a comment?
The Chair: Legislative counsel has a point to make.
Mr Revell: I am afraid, because of being called out into the corridor to discuss other matters, I am rather at sea on the particular motion that we are dealing with. We have Mrs Cunningham's motion in front of us, that is the one I am looking at with the word "seventh" crossed off and the word "fifth" put in. Now I am hearing the word "statutory" for the first time, that we want to put the word "statutory" in before the word "holidays."
Mrs Cunningham: I was advised to do that.
Mr Revell: I would like to say that I am not sure that that is helpful, because there is no such thing as a statutory holiday. There is a list of holidays -- there is an expression "holiday" which is defined in the Interpretation Act, which says, "In every statute unless the contrary intention appears, the word `holiday' means" --
Mr Wessenger: We will withdraw "statutory" from it then.
The Chair: Mrs Cunningham.
Mrs Cunningham: Absolutely.
The Chair: So "statutory" is withdrawn.
Mrs Cunningham: It would be anyway.
Mr Kwinter: I have a problem with this whole discussion now that it has developed to where it is. It would seem to me that the purpose of the amendments, both Mrs Cunningham's amendment and the government amendment, was to address the concern that was expressed to this committee that those people who are involved require more time. Now it would seem to me that if the rules of practice state that five days is the period of time for deemed notice -- and from what you have said earlier, five days acknowledges the fact that it does not include holidays -- if you make it back to five days and just spell out the holidays, it is exactly the same thing as you had when you say five days without the holidays, because in practice it is the same thing.
That is not the problem. The problem was not that people came here and said, "I don't understand the five days." They were saying: "We know what the five days are; it is not long enough. We want seven days." It would seem to me that if you go back to the five days and spell out the holidays, you are not doing anything other than clarifying for the non-legal person that five days assumes that it does not include holidays -- Saturdays, Sundays and holidays.
The issue is whether it should be five days or seven days, and I think that the intent of both the government motion and Mrs Cunningham's motion is to extend that time and it does not do it by going back to saying five days and spelling out the fact that it excludes those other days.
The Chair: My understanding from the clerk is that if Mrs Cunningham's motion passes, the government motion will be out of order, so we really are only speaking of one motion.
Mrs Cunningham: We are trying to solve a problem that takes in both motions here. In life, if you go back to what you are trying to do, I think that my colleague has just said exactly what the problem is. Mr Wessenger, I would appreciate you speaking to this one, too, because the "fifth" I can understand, but that does not extend the time, and they want more time. The Canadian Federation of Independent Business, small business people, want more time.
Mr Wessenger: The original, stating the fifth day, does not refer to the fifth day including holidays. So it would not be actually five days through the holidays.
Mrs Cunningham: Oh, it did not?
Mr Wessenger: No, that is right. So, in fact it was five days --
Mrs Cunningham: Okay, so this was not correct, then?
Mr Wessenger: No, not in the original act.
Mrs Cunningham: All right. Well --
Mr Kwinter: But it seems to me that in our conversation, there was an absolute comment that five days in the rules of practice implies that it does not include holidays.
Mr Wessenger: That is correct.
Mr Kwinter: And the rules --
Mr Wessenger: The rules do not apply to this.
Mr Morrow: Mr Chair?
The Chair: Yes, I am sorry. Mr Morrow.
Mr Morrow: First of all, we have to address the standing down that I asked for, and I do have a problem with legal counsel trying to take out the statutory holidays. Coming from a labour union, I really do believe there are statutory holidays and I would ask that that be left in.
Mr Revell: Mr Morrow, there are two sets of statutory holidays, and this is one of the problems, in fact, that is being addressed in the office of legislative counsel and policy development division of the Ministry of the Attorney General. The Employment Standards Act has a list of holidays which I believe is the list of holidays that most trade unions consider to be statutory holidays. Okay? Unfortunately, there is a second list in the Interpretation Act, which is not exactly the same list. The list that is in the Interpretation Act is the list that is used for such things as determining services of notices and the like. I can bring a copy of the Interpretation Act this afternoon. But that is in fact the way it operates.
Mr Sorbara: Is there not also a list of holidays in the Retail Business Holidays Act?
Mr Revell: Oh, yes, and there is a third list in the Retail Business Holidays Act.
Mrs Cunningham: Mr Chairman, how much power does this committee have, because we could fix a lot of things. We could just continue on. If we wait for the normal process of government, these people that are sitting around here, waiting for things to be cleaned up, Mr Wessenger, for years, we could just do it in this committee. Set the precedent. Rules of practice we have already changed. Mr Sorbara, you might even be happy about this, you never know. Think about it over lunch. You could get excited about this.
Mr Sorbara: I will wait until counsel tells us what is most consistent with everything else that is --
Mrs Cunningham: I think that would be a good idea, as long as we all agreed what we were trying to solve.
The Chair: Are you suggesting that we --
Mrs Cunningham: Stand it down.
Mr Sorbara: Stand it down until we have a report from legislative counsel.
The Chair: Are we then agreed?
Mrs Cunningham: We will not spend much time on it when it comes back.
The Chair: This section and number 12 have been stood down. Mr Morrow?
Mr Morrow: I would ask for a five-minute recess.
The Chair: A five-minute recess? Thank you. We are recessed until a quarter after 11.
The committee recessed at 1109.
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The Chair: I would like to call this meeting back to order, please.
Mr Wessenger: Okay. Mrs Cunningham, could I just ask for clarification? You are happy with your amendment stating that "The notice shall be deemed to have been served on the individual, corporation or other entity to whom it was mailed on the fifth day following mailing, excluding Saturdays, Sundays and holidays, unless the contrary is shown."
Mrs Cunningham: If in fact we are not getting confused, Mr Kwinter and I together are making certain that that increases the amount of time. If you are assuring me that it is more time and spelled out clearly what they wanted, that would be helpful, so that is fine.
Mr Wessenger: That is fine, okay. I am prepared to accept the amendment on the basis that probably your amendment sacrifices certainty to some extent perhaps by making it somewhat fair. So therefore, on that basis it is acceptable to the government.
The Chair: For the purpose of the record, it appears that the members are discussing the amendment to Mrs Cunningham which was set aside. It appears that it is the wish of the committee to resume discussion of that amendment. If those friendly amendments are acceptable, I am wondering if it is not appropriate to read that amended amendment.
Clerk of the Committee: My understanding of the amendment is that it will now read: "The notice shall be deemed to have been served on the individual, corporation or other entity to whom it was mailed on the fifth day following mailing, excluding Saturdays, Sundays and holidays, unless the contrary is shown."
The Chair: Thank you.
Mrs Cunningham: Correct.
The Chair: Any further discussion?
Mr Sorbara: Do we have any --
The Chair: All in favour of the -- certainly, Mr Sorbara.
Mr Sorbara: I am just asking whether that is what is closest to the general rules of civil procedure or we are not concerned about that.
Mr Revell: In terms of the closest to the rules of civil procedure, we have sent out to obtain a copy of the rules of civil procedure, but we have not checked that yet.
Mr Sorbara: Okay. Well, cancel that call because the Chairman is going to call for a vote on this thing now.
Motion agreed to.
The Chair: Page 12.
Interjections.
The Chair: Mrs Cunningham, given that your motion has passed, the next motion, which was to be the one on page 12, is now out of order. We now move to the motion on page 14.
Mr Wessenger: Or should we go back?
The Chair: Go back?
Mr Wessenger: I am wondering whether we should go back to the other motion that has been --
Interjection: No, not yet.
Mr Wessenger: Not yet, okay.
The Chair: Okay.
Mr Wessenger moves that subsections 3c(5) to (10) of the act as set out in section 3 of the bill, as printed, be struck out and the following substituted:
"(5) The director shall send a copy of the notice to the payor by prepaid ordinary mail at his or her last address as shown on the records of the director's office.
"(6) An income source shall begin making payments to the director's office not later than the day the first payment is to be paid to the payor that falls at least 14 days after the day on which the income source is served with the notice.
"(7) Until an income source begins deducting support payments in respect of a support deduction order or if payments by an income source are interrupted or terminated, the payor shall pay the amounts owing under the support order to the director or, if the support order has been withdrawn, to the person entitled to receive support.
"(8) The director may include in the amount required to be deducted and paid to the director's office any amount in arrears under a support order.
"(9) Subject to subsection (l0a), the total amount deducted in respect of a support order shall not exceed 50% of the net amount owed by the income source to the payor.
"(10) For the purposes of this section, `net amount' means the total amount owed by the income source to the payor at the time payment is to be made to the director's office, less the total of the following deductions:
"1. Income tax.
"2. Canada pension plan.
"3. Unemployment insurance.
"4. Union dues.
"5. Such other deductions as may be prescribed by the regulations.
"(l0a) Subject to subsection (10c), a court when it makes a support deduction order or on the motion of the director may order that one or more income sources pay an amount that is higher than the amount described in subsection (9) and such an income source shall pay to the director's office the amount set out in the order.
"(l0b) An order shall not be made under subsection (l0a) unless the payor receives income from at least two sources (whether or not the sources are `income sources' as defined in section 1).
"(10c) An income source is not required to pay to the director's office more than the net amount that the income source owes to the payor at the time of the payment.
"(l0d) Despite any other provision of this act, no deduction shall be made under a support deduction order in respect of amounts owing to a payor as reimbursement for professional services and for things provided under a medical, dental or hospital insurance contract or plan."
Mrs Cunningham: Mr Chairman, if you take a look at our motion 16, and I think 17 as well -- it is really an amendment to the amendment and I think it would be in order to deal with it now. We are looking at subsection 3c(6).
The Chair: The clerk advises me that you are correct: that it is effectively an amendment to the amendment and therefore it should be dealt with first.
Mrs Cunningham moves that subsection 3c(6) of the act, as set out in the government motion, be amended by striking out "14" in the third line and substituting "30."
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Mrs Cunningham: The same group that seemed to have significant impact on our thinking, the small business community, has drawn it to our attention that we again should be expanding the time frame of at least 14 days. So here we are looking for intent. We chose 30 because we heard it a couple of times but, again, we would look for the assistance of the government, certainly the director, in helping us with a practical solution to the time frame problem; 14 was definitely too short.
Mr Sorbara: I am going to give the same speech and it is a simple one. That is, this section should be consistent with other documents like it. The other document that is like it that I know about is a garnishment notice. If the administration of the branch or some other person can tell me what the time frame is for a notice of garnishment I plead with the committee to make these two consistent, because it would be foolish for an employer to say, "Well, this is a notice of garnishment and I've got 20 days to start with this, but this is a support deduction order" -- which, by the way, Mr Chairman, is the very same thing as a notice of garnishment, in effect -- "and I've got 14 days to start with that." So can anyone answer that question?
Mr Wessenger: I think I will ask staff to indicate that answer, because you certainly have raised a point.
The Chair: Do we have an answer?
Ms Feldman: The only reference that I can see in the rules of the family court, where a provincial court garnishment is issued, is that a garnishee or a payor has 10 days to file a dispute after being served with the notice of garnishment, with the garnishment materials, so it is 10 days. But I cannot respond as to when service is deemed under the family court rules without looking through the first part of --
Mr Sorbara: No, this is not service under family court rules. This is subsection 3c(6), on when they have to start. This establishes the time frame within which they have to start paying, which, if I understand it correctly, is the first payday after 14 days after the income source receives the notice. So it is the first payday after 14 days after the notice is deemed to be received. Can anyone tell us what the equivalent is when someone receives a notice of garnishment, either from your outfit or from anybody else's outfit, or is there a rule or is this the first time we are establishing this? Because it should be consistent for the benefit of those poor people in payroll departments who have to enforce this junk.
The Chair: Counsel?
Mr Sorbara: We can stand this down until this afternoon, if you want to do some research on it.
The Chair: The issue does not seem to be easily resolved from that act --
Mr Sorbara: Not from that act, but --
Mr Carr: The points that I would like to make on this were two. The large corporations said that with computerized payrolls they were looking at 21 days before they could change, and I believe it was the lady from Dofasco who said that their computerized system took 21 days to change, if I remember correctly. Then the other problem with the small businesses, if I remember correctly, is that small business owner-operators do their books only once a month, they do not do the books through the week, because if they are running a Mac's Milk store or whatever, they are actually on the front lines taking the cash. What happens is that once a month they know they do their books, because they have to do it for income tax purposes, for receivables and so on.
So what we are looking at here is keeping it consistent for those small businesses where the person who is going to be doing the work is not a large payroll department, it is an individual; and also in the case of the large payroll departments where 21 days is what they say it takes to change the computerized system in large organizations. So that was, I think, some of the rationale that we heard from some of the groups that came in. It was not only the small but also the large that had some concerns in that regard, if I remember correctly.
Mr Wessenger: I would like to answer Mr Sorbara's question. The fact is that a garnishment is effective immediately it is served; there is no time period at all. Once a garnishee is served on the employer it is effective the date of service. There is no time period at all. What we are doing is we are distinguishing between a support deduction order and a garnishment, because if you garnish, bang, you can get it right away.
Now, what the Canadian Payroll Association recommended, they wanted at least seven days before it came into effect. One other group, I believe, did ask for a longer period and what we recommended is, in effect, a compromise situation saying at least 14 days. So our position is, we would oppose the 30 days.
Mrs Cunningham: Let us just try to influence your position here. On page 4 -- I have not got the most updated, I have got the 12 February, I should have the 20 February document here.
Certainly if you are looking for a compromise, you have got anywhere between seven and 30 days --
Mr Wessenger: Yes.
Mrs Cunningham: -- in the public input, if we are really looking for a solution.
I suppose in raising this, I do not want anyone to misunderstand that I think when the payor gets a notice they should, in fact, make certain that this gets into action immediately. That is where I am coming from. Absolutely.
Ms S. Murdock: Income source.
Mrs Cunningham: Income source?
Ms S. Murdock: The payor is the --
Mrs Cunningham: I am sorry. The income source should be moving as quickly as they can.
You can persuade me if you can answer my questions in this regard. If the income source does not, they are then liable.
Mr Wessenger: That is right.
Mrs Cunningham: In fact, they will be fined, in a sense. That is a simple way of putting it.
Mr Wessenger: They will be liable for the payment.
Mrs Cunningham: That is right, out of their own pocket.
Mr Wessenger: Without proper reason, of course.
Mrs Cunningham: That is right. I think this legislation is threatening in a couple of ways to the business community in that they see it as something else for them to do, not that they do not think it is important, because they are always doing it. At the same time, they want to be given reasonable time to comply.
I do not look at this as a postponement in any way; I look at it as a reasonable time to comply under very special circumstances. The special circumstances were -- if you will take a look at page 4 of the legislative research, have you got this? -- okay, I will just read it in. It says: "Increase the period to 21 days to allow automated payroll systems to respond to the demand." That was the Canadian Bankers' Association. I am trying to be fair with regard to your own response.
"A 30-day period would make compliance easier for smaller businesses." That is the Canadian Federation of Independent Business. I went back and looked at that brief because I thought that was too long, but when they explained that they have small bookkeepers and small family businesses coming in once a month and they are trying to keep their costs down of running these businesses, which are being tremendously challenged in these days, I thought that made sense.
Our great fear, of course, in lengthening it all is that people would look at this as a rule rather than a direction, and I share the government's concern on that. On the other hand, I think in these times we want to make it reasonable and fair for everybody to comply with this legislation.
I think there was one other one, if I have my 20 February one with me. If we are looking for a compromise, I would say that 14 is not a compromise and that 30 is practical for everyone, and then I think the government should feel very confident in being able to enforce its legislation and making the income source pay up.
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Mr Wessenger: I think it is always a question of balancing the two interests. The concern that we have is the fact that if someone is paid on a monthly basis, even with the 14-day period it might be six weeks before the person gets a support payment. If you extend it for 30 days then you might even possibly go two to three months by missing two pay periods. It was felt that that would really weaken the whole program as far as providing payments to the recipients. The major impact of this legislation is trying to improve the situation of the recipient's payments. So on balance we thought it was more important to get the recipient an earlier payment. We did go beyond what was the minimum specified by the one group, which was seven days; we did go to the 14. So we felt we were making a reasonable compromise in this situation. The fact is, we could throw out a garnishment right away and the person would be bound immediately.
Mrs Cunningham: And that does not imply the fine for the income source.
Mr Wessenger: No. If they did not adhere to the garnishee, they would be liable for payment directly. Of course, there has to be an arrears before the garnishee could first be sent out, that is true.
Mr Sorbara: I noticed that in the government's amendment it has made some accommodation, because in the original proposal it had a payment required not later than 14 days and on the first payday between the date when the notice was received and 14 days after. That was pretty draconian. So I think probably just on the amendment -- I understand where Mrs Cunningham is coming from and she would like 30 days -- in the interest of the person who is to benefit from the support order, 14 days is probably better, with one caveat: I would hope that officials from the Ministry of the Attorney General would think about making this new standard the standard for all of these things. In other words, just make a little note to yourself that some day you ought to bring a bill to the House changing the law relating to garnishment. These things should be consistent. You should have a consistent way of doing business. If you are changing a standard, and that is what you are proposing here, get the standard changed throughout the line of business that you are in. I would be interested in --
The Chair: Any further comments on Mrs Cunningham's --
Mr Sorbara: I have not finished yet, Mr Chairman. I appreciate where Mrs Cunningham is coming from and I support her in principle, although personally I think that on this one the 14-day period is a good compromise, because there are 14 days within which a payroll department can prepare for the payment. If I know anything about payroll departments -- and I do not know all that much -- it seems that with our computerized ability to manage payrolls now, this would be an acceptable time frame.
Mr Chairman, I am just wondering if this is the appropriate time in which we might have a little discussion about time frames. I notice that the whip for the government party has suggested that the committee meet only until 3 o'clock this afternoon. That is acceptable to us so long as we continue to begin meeting at 2 o'clock, which is something that I think would accommodate the schedules that the rest of us have.
The Chair: You are suggesting --
Mr Sorbara: That we meet from 2 o'clock until 3 o'clock today.
The Chair: Two o'clock until 3.
Mr Sorbara: This is to accommodate the government whip.
Mr Morrow: I would like to briefly discuss it if we could, that we adjourn at 3.
The Chair: It would seem that we are in the midst of a discussion about an amendment.
Mr Sorbara: I will raise it as a point of order then.
Mr Wessenger: Why do we not finish this amendment and then discuss this?
Mr Morrow: Can we finish this, Greg, and then move to that? Would you mind?
Mr Sorbara: Sure.
Motion negatived.
Mrs Cunningham: Mr Chairman, I just want to draw to your attention another one that would more appropriately have been an amendment, number 17, that we can probably dispense with now, a Progressive Conservative motion, which is the same --
Mr Sorbara: Is that an amendment to the amendment?
Mrs Cunningham: It is exactly the same, Mr Chairman, as subsection 10d of the proposed amendment that we are dealing with, so we would withdraw it at this time.
Mr Carr: So 17 is the same as 15?
Mrs Cunningham: We are going to deal with it now. You have already done it. Good.
The Chair: So Mrs Cunningham's amendment on page 17 is withdrawn?
Mrs Cunningham: Correct, Lisa?
Clerk of the Committee: Yes.
Mrs Cunningham: We will withdraw it and congratulate the government on its leadership.
The Chair: Shall we return to the government amendment or to the discussion of the timing?
Mr Morrow: Can we please move to the timing? Can I open this to the floor that we adjourn at 12, come back at 1 o'clock and then adjourn this afternoon at 3?
Mrs Cunningham: I do not even know how long -- Murray, are you on that tour today at noon for the --
Mr Elston: No. I do not do tours because we are busy working with people.
Mrs Cunningham: Would the Chairman please note that the government House leader -- I hope he has already been on the tour that I am going on for the special committee on the parliamentary precinct.
The Chair: I think you are referring to the opposition House leader.
Mrs Cunningham: Yes, that is right. Anyway, there is something on at noon today and I do not know how long it is, so I cannot say what time I can come back. If somebody can find out --
Mr Sorbara: It is very difficult for our caucus as well to change the lunchtime schedules. I know I am not anticipated back here until about --
Mrs Cunningham: Why 3?
Mr Morrow: Okay, 4.
Mrs Cunningham: No, I mean --
Mr Sorbara: We are okay with 3. Two until 3 is fine, at least with our party. I do not know about the Tories.
Mrs Cunningham: It depends on when we are going to get all this done.
Mr Sorbara: We will get it done.
Mr Morrow: I really do not think that an hour this afternoon is really sufficient time, so I was kind of hoping to have a little bit longer than an hour.
Mrs Cunningham: Oh, definitely. I thought we were here until 6 o'clock tonight. Somebody wanted to listen to the budget speech last night, so I was agreeable. I did not want to do that. I have work to do. I plan on being here until 6 o'clock tonight.
The Chair: I believe that we are here until such time as the committee decides we should adjourn.
Ms S. Murdock: We have not set anything.
Mrs Cunningham: We want to get it done ourselves, if we can.
Interjections.
Mrs Cunningham: We will take it under advisement over lunch.
Mr Fletcher: What time are we having lunch?
Mrs Cunningham: I have to find out where we are going and --
Mr Sorbara: Let's hear of a practical problem. Are the New Democrats all on their way to something? Listen, we want to accommodate you, and so we would support you in a --
Interjections.
Mr Sorbara: At lunchtime. I am talking about this afternoon. Your whip is suggesting a 3 o'clock adjournment. That generally happens when some party function is going on and you are doing --
Mr Morrow: Actually, Mr Sorbara, there was nothing going on. It is just that a couple of members had some timing problems, but if the committee wants to sit here until 6, by all means we will be here until 6.
The Chair: Or whatever time --
Mr Morrow: Or whatever time, yes. I was opening it to see what we thought as a whole.
Mrs Cunningham: It is hard to get our two people here all the time, given the work of our small caucus, and we are here this afternoon.
The Chair: Should we then continue until approximately noon hour --
Mr Wessenger: Yes, and then come back at 2.
The Chair: Excuse me, is it the will of the committee that we adjourn when we reach noon hour until 2 o'clock? And we have not decided as yet how long we will be sitting this afternoon.
Mrs Cunningham: I will go find out --
The Chair: We have not adjourned as yet, Mrs Cunningham.
Mrs Cunningham: No. I just want -- it will help me to decide. If I want to be here I need to know how long the tour is going to last. Does anybody know?
The Chair: We are resuming at 2 o'clock.
Mr Wessenger: Two o'clock, no problem.
Ms S. Murdock: Yes. You will not be going through this building for two hours.
Interjections.
The Chair: With the indulgence of the committee, I am wondering if I could have your attention for a few moments. We have a rather lengthy government amendment in front of us, which is on pages 14 and 15. I am wondering, given the extent of this amendment, whether we should consider it now or adjourn until 2 o'clock.
Mrs Cunningham: If we can be assured that Mr Wessenger will come back in a good mood, we will adjourn now.
Interjections.
The Chair: I am sorry, do we have an agreement?
Mr Sorbara: Motion to adjourn until 2 o'clock.
The Chair: We have a motion to adjourn. Is that acceptable?
We are adjourned until 2 o'clock.
The committee recessed at 1150.
AFTERNOON SITTING
The committee resumed at 1409.
The Chair: Before we resume discussion of the government motion on page 14, the clerk has an announcement.
Clerk of the Committee: Actually I have a few announcements. I am going to be handing out, in a few moments, two background papers prepared by Susan Swift on victims of crime that we are starting tomorrow, and an agenda for victims of crime. You will notice that we start at 10:30 tomorrow morning.
The other announcement is that there has been a request from the Hansard office, they are having a little difficulty transcribing this committee. If people could try to talk one at a time they would really appreciate it.
Interjections.
The Chair: I think that very event is presently occurring, so with due respect to the reporter perhaps we can attempt to speak singly.
Mr Mills: I think it would be a good idea too, because some of them sound rather incoherent, the way it is reported and that reflects on --
Interjection: On us?
Mr Mills: Yes, it does.
The Chair: Thank you, Mr Mills. Any further announcements?
Clerk of the Committee: That is it.
The Chair: Thank you.
Interjections.
Interjection: I think it is the ministry staff.
The Chair: Ahem. I am sure that Hansard will respect the fact that having made that announcement, the exact opposite effect is occurring.
Interjection: That is right.
The Chair: Have you discussed your rationale for this amendment, Mr Wessenger?
Mr Wessenger: Yes, we did.
The Chair: Or have you just gone over the amendments?
Mr Wessenger: We have not discussed the motion that I made with respect to subsections 3c(5) to (10) of the act. That was read in and I believe -- was it ever dispensed with?
The Chair: I believe so.
Mr Wessenger: I might --
The Chair: Excuse me a moment, if I could. It was dispensed with, the clerk advised me. Would you like to lead off with this section, or should we just enter into discussion?
Mr Wessenger: I could review the changes, since they are fairly extensive, although subsection 6, an income source, the 14-day period, I think, has already been discussed so I do not really think that needs any more discussion. That was all involved in connection with the amendment by Mrs Cunningham with respect to 30 days.
That amendment was lost so we are now back to the 14-day period which is a change from the seven days previously. Am I correct there? I do not have the right page --
The Chair: Any further --
Mr Wessenger: The next, subsection 7: this subsection was added to make it clear that the payor is obliged to make all payments, both before the income source starts deducting and during any interruption. It is just for clarity, the payor still has the obligation to pay in spite of the fact that the income source does not make the payments.
Subsections 8 and 9 were added to ensure that it was 50% of net wages. It is now 50% of net, which complies with the same rules as garnishment provides for.
We added subsection 10 because business groups said there was some lack of clarity of what "net amount" meant, and so we defined the deductions in paragraphs 1, 2, 3 and 4, which are income tax, Canada pension plan, unemployment insurance and union dues: "5. Such other deductions as may be prescribed by the regulations." There are none anticipated at this stage, unless there is a new provincial tax or federal tax added that would have to be included.
The Chair: Mr Wessenger, are you finished with your --
Mr Wessenger: Okay, the next page, subsection 10a -- this just relates to the change in numbering and clarifies when they, a court, may order more than 50% to be paid, and that applies only when there are at least two income sources. We wanted to make sure that there were at least two income sources before the court would order more than 50%. The next page, subsection 10c, again, is just a change in numbering and 10d was in response to concerns raised with respect to insurance reimbursements. We wanted to make it clear that we were not going to attack reimbursements for professional services or for medical, dental or hospital expenses with respect to insurance --
The Chair: Excuse me just a moment. For the purpose of the record, when Mr Wessenger is referring to the next page, he is referring to the annotated copy and not the government motions in front of us. Thank you.
Mr Wessenger: Yes, page 15, actually. We are on subsection 10d. That was in response to the particular representation made, and we felt it was a very good representation, because it was not the intention to cover these items, so that by excluding them it was with the intent of the legislation. Okay?
Mr Poirier: I have a question for the parliamentary assistant. For your proposed changes to subsection 10, paragraph 4 within subsection 10, union dues, could that also include compulsory professional association fees or just strictly union dues? Because I find that definition very limited, sir. There are other compulsory payments made by people that may not be necessarily union dues; professional associations, for examples.
Mr Wessenger: A teachers' association would still be called union dues, if I am correct.
Mr Poirier: Possibly for teachers, yes.
Mr Wessenger: Yes.
Mr Poirier: How about doctors, engineers, lawyers --
Mr Wessenger: Doctors and engineers would not have professional --
Mr Poirier: Yes they would.
Mr Wessenger: Do they?
Mr Poirier: Social workers --
Mr Wessenger: Certainly lawyers would.
Mr Poirier: Why would you not just say "compulsory association fees or union dues," for whatever types?
Mr Kwinter: Remember the law society?
Interjection: It is defined in the income tax law.
Mr Wessenger: Certain payments are compulsory in order to practise, but they are not normal deductions from wages. For instance, a lawyer has to pay his fees to practise law, yet they would not be a normal deduction under payroll.
Mr Poirier: Can you confirm to me that union dues would be the only types of similar fees to be deducted from wages? I am sure there must be other ones.
Mr Wessenger: That is the only one I can anticipate, because it would show up on your T4 slip, union dues.
Mr Poirier: Yes, of course. I know.
Mr Wessenger: Even if they were -- no matter how they were classified.
Mr Poirier: Right. But as long as you tell me that what you have written down here, "union dues," includes any other types --
Mr Wessenger: Of deductions falling --
Mr Poirier: -- of the compulsory deductions that would show up on a T4.
Mr Wessenger: That are of a nature of a requirement, yes.
Mr Poirier: Professional or whatever.
Mr Wessenger: Oh, there is an -- whose comment is that?
The Chair: That is mine.
Mr Poirier: I am still waiting for the PA's answer.
Mr Wessenger: I think really that is why we have "Such other deductions as may be prescribed by the regulations," in case there is any problem, because the intention is anything that is compulsorily deducted from the paycheque --
Mr Poirier: Right.
Mr Wessenger: -- on a, say, non-volunteer basis, like some people have debt payments that are deducted. You would not have that reduced, but certainly the intention is anything that is related to employment, a condition of employment, would be deducted.
Mr Poirier: So if there was something similar to union dues but not necessarily to a union, you would be agreeable to have them included.
Mr Wessenger: In the regulations, yes.
Mr Poirier: Fair enough. That is what I wanted to hear.
The Chair: So what you are suggesting is that your intent is that it be noted for inclusion right in the regulations.
Mr Wessenger: Yes.
Mr Poirier: Exactly, yes. If you are not willing to change and you just want to leave "union dues" here, I would have preferred for you to say, "union dues or any other compulsory professional deductions," or whatever the hell the proper wording would be.
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Mr Wessenger: I understand what you are saying and we will certainly make sure they are included. Anything that would fall in that category should be included in the regulations and instructions are to the staff to ensure that.
Mr Poirier: Very good. I have your guarantee for that then.
Mr Wessenger: Yes, my undertaking. Yes.
Mr Kwinter: I was just going to elaborate. There are several situations where that could apply. An architect working for a large architectural firm cannot practise architecture unless he is a member of the Royal Architectural Institute of Canada and his membership fees, in order to allow him to stamp his drawings, may be paid for by his employer and charged back against him, and that is just another example where it is something he has no choice over. It is a professional fee that allows him to practise his profession and earn his living and it is certainly recognized by the Income Tax Act and I think should be recognized here as well.
Mr Wessenger: That is certainly the intention of the deduction. I can assure you that is the intention, and the reason why we have, as I said, the regulations thing is, in case there is anything that comes up that is not covered, we want to make sure it is covered.
Mr Kwinter: Fair enough.
The Chair: Okay. Anything further on this section? Mr Kwinter?
Mr Kwinter: I would like to just spend a little bit of time on subsection 3c(10a). I am a little concerned when it talks about a higher amount than described in subsection 9, which in turn says that, "Subject to subsection (l0a), the total amount deducted in respect of a support order shall not exceed 50% of the net amount owed by the income source to the payor." This provision is, I assume -- and I would like to get some clarification -- that if there are two sources of income and it happens that the amount of the court order is greater than the total sum of one of the sources of income, but the combination of the two, if you then attach the second income, is still under 50%, that is permissible.
Mr Wessenger: Yes, that --
Mr Kwinter: Is that what is supposed to be happening in this provision?
Ms Pilcow: That is one of the situations. The other one is one in which one of the income sources is not an income source as defined. So if a person has employment income which is sufficient to pay the support and then is self-employed, earning other income, but that is not an income source as defined in the legislation, you could get more than 50% from the income source which is an income source as defined.
Mr Kwinter: My concern is, how do you police that? How do you get a situation where an employer, an income source, looks at the act and says, "My total obligation is no more than 50%"? The director contacts that income source and says, "Notwithstanding the provisions of section 9, I have information to the effect that there is another income source, and as a result I am requesting and requiring you to submit 100%," or 80% or whatever it is, an amount over and above the 50%. My concern is, it would seem to me the onus should be on the director to get 50% from the one and whatever requirement, up to 50%, of the other, as opposed to putting potentially the first income source in a situation where they are required to make a remittance that is over and above what is normally required under the act, and may subject them to a lot of problems.
Mr Wessenger: I think there needs to be a little clarification here. The director cannot on her own decision go beyond the 50% for any income source, under the act. It is only if there is a court order, it is only the court that can make such an order.
Mr Kwinter: Well, what it says, "...a court when it makes a support deduction order or on the motion of the director may order that one or more income sources pay an amount that is higher than the amount described in subsection 9..."
Mr Wessenger: It is the court that makes that order.
The motion of the director --
Mr Kwinter: The motion is made by the director, but it then has to be made by the court?
Mr Wessenger: Made by the court. You have to have a court order; you cannot take more than 50% from any income source without a court order. So what would happen -- for instance, supposing a lawyer is a member of the Legislature, we will say, and the person is practising law, has income from his law practice as well as income from the Legislature. A court could order that all of the money from the Legislature income, or more than 50%, be paid for support because there is another income source, the law practice. But the court would make that order and the director could bring a motion, would have to bring an application to court. That is basically what it says. The director could bring an application to court to ask that more than 50% of the indemnity from the Legislature be prescribed to pay the support.
Mr Kwinter: Okay, then, can I just pursue that a little bit further? What happens if the income source -- there are two income sources at that point and the director brings a motion, it is granted and the deductions take place. Suddenly one of the other income sources dries up, disappears, whatever it is, ceases to be an income source. Does that mean you have to go back to court again?
Mr Wessenger: That means you have to go back to court, yes.
Mr Kwinter: Which brings us back to this whole problem that we will have a lot of court activity, potentially, as I understand it.
Mr Wessenger: I think it is going to be very rare that you are going to have this situation occurring, where you have more than 50% for one income source. It will be the rare occasion that it occurs, rather than the usual occasion. I think it is fair to say, and I hope I am not speaking out of place with the director here, but a situation where an individual has both an income source and another source of income and is in compliance with payment of his support, I cannot see the director deciding to go to court to ask for more than 50%. I mean, I would --
Mrs E. Mills: That is where you get back to "practical."
Mr Wessenger: That is where you get back to "practical," yes. So I would be upset if the director did in that instance bring an application. It would only be the instance where there had been default, where you are likely to have the director trying to get more than 50%.
Mr Kwinter: One last question. If in this hypothetical situation where the second income source ceases to be an income source, is it the director who would bring a new motion or would the payee have to bring the new motion, or the payor? Who brings the motion to vary the order?
Mr Wessenger: The payor would normally be the person who brought the motion. He would probably want to vary his support order as well, because if he had lost one source of income, not only would he probably want to reduce the 50%, the income source, he would probably also want to reduce the amount of support because that would be a fairly substantial loss of income in most cases. He would probably have good grounds for varying the amount of support, as well as reducing the order respecting the 50%.
Mr Kwinter: Okay, then. Sorry, but I have one other question I want to ask.
Mr Wessenger: Yes, certainly. Go ahead.
Mr Kwinter: If you have a situation where the payor wants to vary the order, only has one income source now, that income source at 50% would be less than the court order, and under subsection 9 the maximum that can be deducted from the one income source is 50%. He would get that variance, he would not get a new court order because the court order would be for the higher amount, he would just be in arrears.
Mr Wessenger: Let me just say, if I was the lawyer representing the individual who had only one income source and it was more than 50% on the existing court order, I can assure you that I would also bring an application to vary the amount of support, and I cannot see a court ever ordering more than 50% payment. I would be very surprised, anyway, if it did. I find the average about 20%, actually, of the order, the average support order, not 50%.
Mr Carr: I wanted to refer to subsection 3c(7), the payor's duty to pay. That, as a result of this amendment, now stands out as something new to our particular undertaking here, and I know it has been laid out in the purpose for the amendment. In your own words, what would be the reason for subsection 7 then?
Mr Wessenger: The reason for subsection 7 is, I think -- and I may be wrong again -- for clarity purposes only. In our opinion, even if you did not have subsection 7, the obligation of the payor to make the payment is still there; but just to make it clear or just to reiterate, the obligation is inserted.
Mr Carr: How would it be clear now, then, through what?
Mr Wessenger: We set it out in this section just so it was clear to anybody reading the section that the obligation still continued. In our opinion, it still --
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Mr Carr: How would it now be clear -- through what?
Mr Wessenger: We set it out in this section just so it was clear to anybody reading the section that the obligation still continued. In our opinion, it still continues even though this section is not added. It is not considered as being absolutely necessary but was put in for clarity purposes.
Mr Carr: Had there been any disputes over that particular one --
Mr Wessenger: I think certainly the bar had some problem, lawyers had some problem, reading the legislation, so we were trying to apply to make it more readable.
Mr Elston: You mean put more sections in?
Mr Wessenger: So they would not have to refer to other sections, Mr Elston. The bar finds great difficulty reading legislation often, and so does the judiciary at times.
Mr Carr: In number 8, the arrears, you have broken that down now. It basically had been sent through on a very complicated formula. We are now breaking that out and just saying 50%. The intent is still pretty much the same then.
Mr Wessenger: Yes, the intent is the same. It is for clarity purposes. It actually has been changed somewhat, because it is now exactly consistent with garnishment. We have made it conform exactly with the garnishment provisions.
Mr Carr: The garnishment provisions would be tougher than our old --
Mr Wessenger: Than this one?
Mr Carr: Yes.
Mr Wessenger: Yes, we would have gotten more under garnishment than we would under the formula.
Mr Carr: So now you are going to get more out of this --
Mr Wessenger: Now we are going to the same, not more; exactly the same as garnishment.
Mr Carr: The same as garnishment.
Mr Wessenger: Yes, so we are consistent. I think it is very important that we have consistency between the two.
Mr Carr: Looking at this formula, I thought I was back in high school with the --
Mr Wessenger: I know, I had the same problems. I hate formulas. It reminds me of the Income Tax Act and I hate reading the Income Tax Act.
Mr Carr: So what we have done with this is we have laid it out in fairly simple terms, but we are trying to make it basically conform with garnishment.
Mr Wessenger: Yes, exactly the same as garnishment.
Mr Carr: Okay.
Mr Poirier: On subsection 3c(7), I agree with the PA, it might not be necessary legally but I have a feeling, from my past experience with SCOE in my MPP office, that a lot of members will be pointing out subsection 3c(7) to a lot of payors who will try to plead that they do not have a duty to pay. I think that members, in hindsight, with my past experience, will be pointing out that subsection to a lot of them who come into their office saying, "I have no duty to pay." I think that would come in handy.
Mr Elston: With respect to the 50% amount again, just so that I am not mistaken: Under a garnishment order we know that it can only go to maximum with respect to all of the garnishments. In this case the maximum will be 50% on this but is it, in fact, 50% of the net amount due in relation to all other attachments for debts owing as well, or not? Just so we get this explanation again.
Mr Wessenger: I will let Ms Feldman answer that.
Ms Feldman: I realize that there was a concern raised by the Ontario Chamber of Commerce on the priority of support orders vis-à-vis other garnishments. In our view, there was a bit of misinformation and I think that a priority memo was circulated, if I can ask the clerk.
Mr Elston: Yes, it was actually sent around but I think it is fair to have it on the record for the discussion. I do not think it really forms part of the record until we talk about it on Hansard; is that right?
The Chair: Clerk?
Clerk of the Committee: Sorry, I was not listening to the question.
Mr Elston: It is just the material that was formerly circulated by the Attorney General's department speaking about the ranking in terms of priority of attachments for debts owing.
Clerk of the Committee: That is correct. If it was circulated, the Attorney General's background papers do not form exhibits to this committee.
Mr Elston: That is right. So we should actually talk about the issue here on the record to get it included in the formal proceedings, which is what I wanted to do.
The Chair: Have we done so?
Mr Elston: Not yet; we are just about to talk about it.
Ms Feldman: The maximum amount of a person's wages that is deductible is 50% and in Bill 17 the proposed subsection 3c(8) recognizes that, because that section provides that the total amount deducted in respect of a support order shall not exceed 50% of the net amount owed by the income source to the payor. The Wages Act indicates that there is an exemption of 80% of a person's wages with respect to ordinary debt and processes to enforce those debts, and that exemption is increased to 50% with respect to support orders. But those percentages are not cumulative. The maximum amount deductible at any time is 50% of a person's net wages.
Mr Poirier: From all sources?
Ms Feldman: From all sources, unless the court orders otherwise.
Motion agreed to.
The Chair: Mr Wessenger moves that subsections 3c(12) to (14) of the act as set out in section 3 of the bill, as printed, be struck out and the following substituted:
"(12) If an income source has failed to comply with a support deduction order or if the director disagrees with an income source as to the amount being deducted and paid to the director's office or as to whether an individual, corporation or other entity is an income source, the director, on notice to the income source, individual, corporation or other entity, may bring a motion in the court that made the support deduction order to determine the issue and the court shall determine the issue in a summary manner and make such order as it considers appropriate in the circumstances.
"(13) An income source is liable to pay to the director's office any amount that it failed without proper reason to deduct and pay to the office after receiving notice to deduct and pay, and in a motion under subsection (12) the court may order the income source to pay the amount that it ought to have deducted and paid to the director's office.
"(14) In addition to any other method available to enforce an order in a civil proceeding, any order made under subsection (12) or (13) may be enforced under this act in the same manner and with the same remedies as a support order."
Mr Carr: On this particular one with regard to our motion, that is in conflict. I am asking maybe for a little guidance from the clerk.
The Chair: The clerk was just bringing your motion to my attention, which was why there was a slight pause before I started to read Mr Wessenger's motion. Could we have a discussion of that?
Mr Wessenger: Yes.
The Chair: We have read into the record page 18, government motion. However, the clerk advises me that properly we should be dealing now with the Progressive Conservative motion, which is effectively an amendment to this amendment, and Mr --
Mr Wessenger: Mr Chairman, I am wondering if we have some suggested amendments to the Conservative motion that might make it acceptable. I wonder if we might discuss --
The Chair: We may be able to do that, sir. However, Mr Carr will have to read into the record the amendment before we tinker with it.
Mr Wessenger: I am just suggesting, could we --
Mr Elston: Mr Chair, if I might be of some help, if you can agree between the two parties before it is read in the first time, you will not have to amend the amendment to the amendment.
The Chair: I appreciate that; however, the clerk advises me that before --
Mr Elston: If these two can come together and make a couple of slight changes, then Mr Carr can just move the motion once rather than several times.
The Chair: Should we recess for a minute in order for you to confer?
Mr Wessenger: Yes, I think so.
The Chair: Recessed for three minutes.
The committee recessed at 1440.
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The Chair: We would like to resume our deliberations.
Mr Wessenger: I have asked that this motion 19 be stood down until we have had a chance to try to resolve the drafting problems with respect to accommodating the intent of the motion.
The Chair: Is that the wish of the committee?
Mr Sorbara: Is this a PC motion?
Mr Wessenger: Yes, it is a PC motion.
The Chair: Are we standing down both 18 and 19?
Mr Wessenger: Yes.
The Chair: Okay, stood aside. Move on to page 20, which is also a Progressive Conservative motion.
Mr Sorbara: Before you move on, is it the intention of the committee more or less to support number 19 once the drafting is dealt with? I think it would be a good idea. After all, Mrs Cunningham is --
Mr Wessenger: We are trying to accommodate. I think that is the best way. Sometimes the parliamentary assistant, by trying to accommodate, creates difficulties. So we ought to make sure that it does not create any difficulties by trying to accommodate.
The Chair: Okay. Can we move on now to page 20, which is a PC motion?
Mrs Cunningham moves that subsection 3c(15) of the act, as set out in section 3 of the bill, as printed, be amended by striking out "10" in the first line and substituting "21."
Mrs Cunningham: Call the question. I thought I would use new techniques this afternoon.
The Chair: Mrs Cunningham puts the question.
Mrs Cunningham: No, I --
Mr Poirier: You like to talk too much. Okay, go ahead, Dianne, talk. Tell us what to do.
Mrs Cunningham: I am trying to get my head in gear around this one. This was another one where the Ontario Chamber of Commerce -- public input, Mr Wessenger -- said: "Extend the time within which the employer must inform the director of an interruption of payments. Large employers may have payroll systems which require up to 21 days to identify an interruption of wages." I am not sure whether this one was overlooked by the government, since it responded to all the other ones with requests in some way, but I would certainly be interested in hearing from it. It may have just been overlooked or they may have good reasons for having ignored it.
Mr Wessenger: Unfortunately, I do not have the Unemployment Insurance Act in front of me, but I understand there is a time period when termination of employment occurs that you have to provide the information to the employee on termination for UIC purposes, and I think it is five days. So I think we are being more than generous when we are giving 10 days here, which is double what is required under the provisions of the Unemployment Insurance Act.
Mr Sorbara: Mr Chairman, beware of NDP parliamentary assistants claiming that the government is being generous. Beware. I am just saying beware.
The Chair: Thank you for that advice, Mr Sorbara.
Mr Sorbara: Or any government when it claims that it is being generous. With what? To whom?
Mrs Cunningham: I heard the words "I think," and I am just wondering if we should be getting more information on this. It is the same old question Mr Sorbara usually asks around consistency of legislation, and I do not think the word "generous" is a good word. I think what we want to do is be practical and respond appropriately to the concerns of the Ontario Chamber of Commerce, which of course has a number of groups that participate in its deliberations. So I just want to hear why not, and that answer did not satisfy me.
The Chair: You do not feel satisfied?
Mrs Cunningham: No, I do not feel satisfied.
The Chair: Mr Wessenger, would you like to respond further or --
Mrs Cunningham: I do not feel satisfied with the response.
The Chair: -- on to Mr Sorbara?
Mr Wessenger: It just requires a letter to the director's office, which is a very simple procedure. There is no special problem with it; no forms to fill out. It just has to be a letter, "Dear Sirs, Please be advised that so-and-so is no longer an employee," and it would normally be included at the time the last payment is made.
Mrs Cunningham: If you are not happy with what the Ontario chamber said specifically that "Large employers may have payroll systems," I suppose they at that point in time, 21 days later or whatever, because they have used the word 21 days to identify an interruption of wages -- how do we respond to these large employers? I just want to hear from the staff on this. How does this really work? They raised it as a legitimate concern.
Mr Carr: Do they just break the law or somehow circumvent it?
Ms Feldman: Any contravention would have to have some sort of intent, and if those types of large employers indicate that because the way their particular system is set up that was absolutely the minimum time that notice could be given, then I do not think any court or, for that matter, the director would imply any liability on their part in those particular cases.
Mr Sorbara: Surely what we want here is not an arbitrary figure but we want to get notice to the director as soon as possible of the interruption of payment. But one of my problems here is that this section assumes that the only interruption of payment arises because, in effect, the debtor -- I guess we have to change this to payor, do we not? You did not bring an amendment forward in that regard, but have you got one on that for the whole act?
Mr Wessenger: Yes.
Mr Sorbara: You have said the interruption of payment, I guess because the payor is no longer working there. Can our officials tell us what happens in a situation like City Express? Who is liable in a situation like City Express where people are just not receiving paycheques?
Interjection.
Mr Sorbara: It may end up being a bankruptcy, but lots of times employers say, "Thanks very much for a good week's work. Sorry. There's no money in the bank and you're not getting paid."
Mr Wessenger: The employer would be in breach, not only in his obligation to his employee but also to the director.
Mr Sorbara: Liable for that money, personally liable for that money?
Mr Wessenger: The employer would be if he did not eventually pay. It would be a question of eventual payment obviously, and if the money was owed to the payor, assuming that.
Mr Sorbara: Who has priority in a bankruptcy?
Mr Wessenger: There is a limited priority for three months, I believe it is, on a bankruptcy, and also there is the obligation of the directors of the company for --
Mr Sorbara: Just in that regard, the parliamentary assistant reminded us that shortly after the election the Premier promised that in all insolvencies and bankruptcies Premier Bob is going to make up the wages if the employer does not make up the wages. By the way, just in that regard, they laughed all the way to the bank because it is usually the bank that takes the hit in that regard on their security so that employees can get their paycheques. But in any event, Premier Bob said, "We're going to make all that up." In the case of City Express, if the employees did not get their wages, "We're going to make that up. We're going to have a wage protection fund."
Now, in this wage protection fund, and in this situation, who gets it first? The employee or SCOE?
Mr Wessenger: This is purely a guess on how it would happen, but I would assume that payment out of the wage protection fund, when it comes in and assuming it is retroactive, would be a lump sum payment, not the regular interval, so it would not be subject to deduction under this. As a support deduction, it would have to be subject to a garnishee, quite frankly.
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Mr Sorbara: By the way, just on that wage protection fund, can anyone here enlighten us as to when that is going to come into place? The government promised this thing a while ago. There are a lot of people who are waiting out there for the money. Does anyone know about that? Mr Chairman, do you know?
The Chair: I do not, but I do not think it is directly discussed in this amendment.
Mr Sorbara: It is, because this deals with interruption, and one of the really big interruptions these days is insolvencies and bankruptcies. That is the bad news and that is why this thing is not going to work very well. Because of these insolvencies and bankruptcies, payors are not going to have any pay coming in so that they cannot have their automatic deduction because they have no employment. Fix the economy and you will fix all of this stuff.
Mr Mills: A point of clarification. This --
Mr Sorbara: Do you have an answer for me on the wage protection fund?
The Chair: Mr Mills?
Mr Mills: Afterwards.
Mr Wessenger: Let Mr Mills speak for the cabinet.
Mr Mills: A matter of clarification on this amendment. If my memory serves me right, there was a delegation here from Dofasco and they mentioned something along the lines that it took 21 days before they would see if there was any disruption in the pay. Do you not remember that?
Mr Sorbara: I support you, Gord.
Mr Mills: They would not know if anything untoward was happening until at least 21 days. I am just wondering if this is the intent of this amendment, to take that into consideration. Is that, Mr Chairman, through you to --
The Chair: Through myself, to Mrs Cunningham?
Mr Mills: -- to you, Mrs Cunningham, is that one of the reasons for this amendment? I remember that when Dofasco came they mentioned the fact that this could go by for 21 days before they would ever notice. Is this the point of this amendment?
Mrs Cunningham: Yes, we are trying to respond to that. I could not find the 20 February; I have got the 12 February and it did not have -- who was Dofasco with?
Mr Carr: The Canadian Payroll Association.
Mrs Cunningham: The payroll association, and that is what we were trying to do.
Mr Mills: So you are responding to that.
Mrs Cunningham: They were not the only ones --
Mr Mills: But they said specifically 21 days, if I remember rightly.
Mr Carr: Their computer system was 21 days.
Mr Mills: Yes, their computer system. The clarification I am looking for then is that notwithstanding this, you would take into consideration that type of arrangement like with Dofasco without penalty. Is that what we are hearing?
Mr Wessenger: What I think has been mentioned by staff is the fact -- I am speaking on behalf of the administration -- that the administration would not seek to penalize an employer who is acting reasonably within the circumstances.
I think this whole question is again one of balance, and the problem is that you are balancing the interests of the system working well and the interests of certain employer groups that may have problems complying with the particular 10 days. But I would be concerned if you extend the time period too long. You will have those people who do not like the legislation, who will use the 21 days, use the maximum period, to not notify. So I think on balance, particularly since it is indicated that discretion will be used wisely in the administration of the act, that we should retain the 10 days, because I think on balance that is more important.
Mr Mills: In conclusion, that is what I wanted to hear: that discretion would be used. I can support what you are saying under those conditions.
Mr Sorbara: It is too bad that Mr Mills gave up so easily. I think he was on a roll there.
We do not know that discretion is going to be used wisely. A couple of days ago in this committee we had a motion that simply said, "Would you treat people fairly and equally?" It was Mr Elston's amendment. He was not here for the discussion, but it got defeated. I do not see a government amendment saying, "Discretion not to be used wisely in this act." So maybe I have a different solution or at least I want to propose it to you, not through an amendment yet, but just to put it out on the table for consideration.
The problem here is that the 10 days is arbitrary. The differences business to business are as different as the four seasons. You never know; in construction it is one thing; in Dofasco it is another; when it is a small little service out there it is a different thing. Some people have pay periods where you get paid every month; sometimes it is every 10 days; sometimes it is every week. It is different. Why not have a provision that says, "As soon as you know that it's going to be interrupted, and in no event beyond 21 days, you shall inform the director"? So "You inform the director when you know but we expect you to know within 21 or 30 days." Is that so terribly unreasonable? Does it make --
Mr Wessenger: The other thing that should be remembered is that this applies not only of course just to the income source but also to the debtor.
Mr Sorbara: Sure. But the debtor does not carry around the Child and Family Support Act with him for bedtime reading. He does not know about this.
Interjections.
Mr Sorbara: Maybe some of them do. Let's see if there are nods of agreement. We just need some nods of agreement from the government party. Would you support an amendment that said, "Let the director know as soon as you are aware of it or in any event within 10 days"? That is being so fair.
The Chair: That discussion cannot be recorded. Mr Carr?
Mr Carr: It does not really matter. I guess --
Interjections.
Mr Sorbara: Just for the record and because it cannot be recorded, they all nodded no. They do not think that we should have put in a little flexibility.
Mr B. Ward: Point of order: I never nodded.
Interjections.
Mrs Cunningham: It was a sleeping nod, Mr Sorbara.
The Chair: Mr Carr, you have the floor, sir.
Mr Carr: The situation I am thinking of now relates to a small business person. In going along the lines of an example, we have somebody who runs a Becker's store and runs into this type of situation. I am more worried, I think, of small individuals running small companies. The statistics that were given when the Canadian Federation of Independent Business were here were saying that a large, large percentage are small. Now we are going to run into a situation where the guy in the front lines or woman that is running the Becker's store might not have adequate time. They do not have a payroll department where they can say, "This needs to go out."
I can personally see somebody running, let's keep the example, a small Becker's store that is actually going to probably forget when somebody is terminated for whatever reason, or the business goes down and they have to lay off one of their clerks. What I see happening is somebody filling out all the forms that would come with unemployment that they have to do. They will do that because the person who has been laid off will be encouraging them to do it and reminding them to do it to get their unemployment. But some small business will potentially even forget about this and then have to scramble around to meet the 10-day requirement. That is more of what my concern would be. And I like maybe even the situation that was introduced there that hopefully we could get the situation right away for those that could do it. But I see some real problems for some of the small business people trying to meet this 10 days.
If the person running the Becker's decides to go on a holiday or whatever -- couple of days off -- they are going to have difficulty meeting this requirement. I think sometimes we are putting undue pressure on the small businesses, thinking, "It's Dofasco or it's Stelco; they've got a payroll department that will have procedures in place," and when somebody goes, they do not forget to notify regarding unemployment, and then SCOE needs to be notified as well. I just think with the 10-day time frame we are looking at, it will hurt some of the small business people, like my example at Becker's.
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That is why I would say to the parliamentary assistant, look at the time frame expanding that, because small business people cannot react as quickly as the Dofascos and the Stelcos of this world, and I am very fearful that we are going to put undue pressure on them in the 10 days to get all this information done, notwithstanding the fact that we are trying to make it simple for small business in terms of one page, so that they can notify them. Small businesses do not have form letters that can go out that easily. I would take the view -- and the Canadian Federation of Independent Business actually wanted it to be a phone call, where they would remember to make a phone call. I am against that because I like to have everything in writing. If you get into the phone-call-type situation, you can say, we did tell you, no, we did not. At least with the writing, you do have some type of hard facts in writing.
Mr Elston: That is if Canada Post delivers it.
Mr Carr: I think the compromise would be to keep it in writing, so that we do have things with hard facts, but that we do give some leeway for some of these small businesses that are finding it difficult to compete as it is. That is why I would be in favour of it.
Mrs Cunningham: I think most people in this room would agree that we are trying to accomplish something here with subsections 15 and 16, actually, although we are not referring to it in the amendment. I would like some wise heads to prevail. This is a nightmare. Mr Wessenger, subsections 15 and 16 are a nightmare. I know we are trying to get something done here, but you can imagine people that change employment having to put all this in writing. I am sure you considered the writing as opposed to phoning in. For every job they have nowadays -- people have more than one job at a time. It is just a nightmare, this whole section. I am sure you have thought it through carefully, but it is a nightmare. I cannot imagine anybody wanting to get married. Why bother? This is a nightmare.
Mr Wessenger: The worst nightmare, we do not know, we never hear.
Mrs Cunningham: Even if they are not -- it is just awful. This whole thing is just awful. I thought extending the amount of time gave some leeway. There was lots of input on this, by the way, and I think Mr Carr has already mentioned it: phoning instead of writing, and extending the time on both subsections 15 and 16. They wanted us to define "interruption of payments." The only thing we could think as we looked at this seriously was to increase the amount of time. That was the only thing we could think about. They even asked us if we would put in law that persons should be informed of their duty to have to do this in writing at the time their pay is interrupted. That was one of the briefs we heard or maybe it was a letter I read. It is just a nightmare, this whole thing, and that is why we thought the least we could do, given some seven different ideas for improving or making subsections 15 and 16 more reasonable -- that is why we extended the date. It really is as simple as that. I am just wondering if the parliamentary assistant or the staff has considered all of the input we got around those two sections, where we were asked to do seven different things, and we have done one.
Mr Wessenger: Basically, the way this is going to have to be dealt with is through education materials sent out to employers. Obviously, this is going to be sent out to every employer about his obligation to notify at the time the --
Interjection: We will have to educate the Bar.
Mr Wessenger: Yes, we will have to educate the Bar as well. We agree there is --
Mrs Cunningham: Actually, the Bar said an income source should be notified of this obligation in advance of the duty being imposed. I am not sure they were telling us to write it into the law. We are hoping that is not what they were doing, but they obviously saw it as a concern. Our only way of meeting the concern after listening to a lot of briefs and reading a lot of correspondence was, in good faith, to extend this amount of time. Ten days is not very long to sit and write letters and get them somewhere, both when your payments are being interrupted and when you resume, which is subsection 16. We should have been consistent and said the same thing there. I really think you should think more about this.
The Chair: Thank you very much, Mrs Cunningham. Further discussion? All in favour of the motion of Mrs Cunningham? Opposed?
Motion negatived.
The Chair: Page 21, Mr Kwinter moves, on behalf of Mr Sorbara, that section 3c of the act, as set out in section 3 of the bill, as printed, be amended by adding the following subsections:
"(15a) No notice under subsection (15) is required for an interruption in payments that arises from circumstances that are customary in the relationship between the income source and those persons to whom the income source makes periodic payments of the same class as are made to the payor.
"(15b) The income source shall give written notice in advance to the director's office of the details of any interruptions described in subsection (15a) that are likely to occur with respect to a payor."
Mr Kwinter: I would ask Mr Elston to explain the basis behind this amendment.
Mr Elston: Actually, this amendment was drafted in relation to a practical concern that I raised during the hearings, that every time a person has his or her work interrupted, which it is sometimes in occupations related to construction, for a period of time, a formal notice must be sent by the employer to indicate that there will be an interruption in pay, sometimes for stints of prolonged weather condition interruptions, meaning that the person, although still employed, is not working and therefore does not receive pay. So every time a weather problem might arise, particularly if it stretches over the course of an entire pay period, notice officially would have to go to the SCOE department, or at least to the order enforcement department; and the people who are normally in the business of construction would be forced to do a whole series of notifications about when the person started, when they stopped.
Weather is one instance. Another instance is where there is a holdup in the delivery of materials, and sometimes that has occurred. It probably will not be a problem now, but I do note from firsthand experience, even when I was working in my school days, in the summer, that we often would have to stop the work while specialty materials were being constructed at another place ready for delivery to the site. That meant that we stood down from employment. We were still ready to go as soon as materials arrived but unfortunately you do not get paid if you do not work.
In this situation, all this is trying to do -- and I know the words are a little bit circuitous in a way because you cannot say, when someone is not working because the materials do not get there, you do not have to give notice. This is what the section is attempting to heal. It is just taking some of the paper onus off the employer, and I think that it is rational not to force the person to keep sending in notices when interruptions are so temporary as to be part of the problem with the conducting of business like construction, for instance.
The Chair: Thank you, Mr Elston. Any further discussion? Mr Wessenger?
Mr Wessenger: Yes, I have problems with this, because it really is too vague. The other thing, I think --
Mr Elston: Make it less vague for me, then. Do you agree with the point? You are going to have people sending in a whole pile of notices that you are going to process, basically.
Mr Wessenger: It is only interruption of payment that is relevant. Just because somebody is going to be laid off for two or three days because of weather, that is not --
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Mr Elston: No, no, I am not talking two or three days. You can be laid off in this day and age because of extended cold spells this time of year. People work 12 months of the year now, except when it becomes too bitterly cold for people to do high steel work, for instance, and you could be off for two weeks at a time and missing entire pay periods. It is not just a snow squall or just when it is too wet for a period of a couple of days. It is because of the nature of the changing construction that we are doing it.
It used to be you could not work much past the first part of November just because you had problems with the materials that were used in construction. Not now. We are year-round operators now. But cold does have a substantial effect on how long people can be employed. So it is not just a two- or three-day period. That is not a problem because if I was working for three days out of five I am still going to have some money paid to me, and if it was my income source, they would take up to 50% of whatever that three-day pay was about. I am talking about more substantial time.
It also is important with respect to materials. This last four and a half years have seen a number of situations, particularly with respect to the delivery of brick, where individuals had to wait for shipments of brick because of the overheated building industry from some places in the southern States on occasion, just because there was no supply. Those people did not work if they did not have the building materials. It was not that they were unemployed, but it is the nature of the business. That would have resulted, under the current situation, in the employer -- sometimes a very small bricklaying subcontractor -- having to give notice for all of the people, or the number of people who worked for them who were on support deduction orders. He would have to submit the notice that the bricks did not arrive for two weeks, and he would have to resubmit it for each pay period, presumably. Or if it was for a two-week delay he would have to tell them that there was an interruption and then he would have to say when it was starting.
So it is a very practical one. If you want to dismiss it, perhaps it is something that you could take into account in the regs or something. But I want your acknowledgement that it is a real and practical problem for organizations, particularly small business who now, believe me -- after being in government for five years -- really are concerned about the paperwork. It may not seem like much of a notice on this one item, but they are obligated on so many items. They just got hit with the new payments -- increased payment -- for unemployed insurance and they have payroll deduction which was a big problem for them last year, and they have a whole series of other problems which I think have to be acknowledged.
If you do not want to pass this, that is fine, but I really would like your acknowledgement that you will try to address it at least in the regulations.
Mr Wessenger: I had hoped there would be some flexibility --
Mr Elston: No, you cannot hope for flexibility and you cannot pray for flexibility because we are writing the words.
Mr Wessenger: No, but I think there would be this aspect that if the interruption is very short, by the time it came to the attention of the branch that there was a non- payment there would be another payment in, in which case the matter would not be --
Mr Elston: But there is a violation of the act which, under the way we have written this thing, these people can be pursued. Perchance, if you end up having three or four of these arising with the same employer, it could look like the employer is, without reason, not complying with the provisions of the act.
Mr Wessenger: Yes. I think it would be easy for the employer -- for instance, say one week he is off, okay, so a weekly pay period. He does not remit the payment. The next week there is a payment. The employer just says, when he sends in the payment, "Please note so-and-so was off that week." That complies with the provisions; in that situation it definitely does comply.
Mr Elston: Within 10 days? That would be 14 days, perhaps, he would be outside the period, might be liable?
Mr Wessenger: Theoretically.
Mr Elston: But, you see, that is the whole problem with legislation, when the practice does not match the theory and actually the words in here. Somebody who was particularly keen on using the act to deal with emotional problems as a result of family breakup can force people to abide by the letter of the law, and at least inspire court action. One of my concerns about this type of legislation is that it will be, and can be, used by people who feel aggrieved, by forcing people to carry out their obligations under the act.
Mr Wessenger: No. In this situation, it is only the director who can --
Mr Elston: No, but the director can be compelled to perform her duties under the legislative options that are here. She is obligated --
Interjection: Compelled by whom?
Mr Elston: I could, as a citizen, if I acted, for instance, on behalf of one of the people entitled to receive payment. Are you telling me a public servant cannot be compelled by legislation to carry out the obligations of legislation?
Mr Wessenger: Yes.
Mr Elston: They cannot where there is no discretion?
Mr Wessenger: By the legislation she can be compelled. The legislation compels her.
Mr Elston: That is exactly right, and a citizen can compel a person to carry out her or his public duty. When it is written in the legislation, you cannot just ignore it. People have been prosecuted for ignoring the duties under pieces of legislation and all I am telling you --
Mrs Cunningham: They have lost their jobs and gone to jail. They are on unemployment and you and I pay them to stay home.
The Chair: Do you want to speak on this --
Interjections.
The Chair: Do you want Ms Feldman to speak on this?
Interjections.
The Chair: Mr Wessenger's assistant, Ms Feldman.
Ms Feldman: The duty is --
Interjections.
The Chair: Could we hear from the AG's counsel, please?
Ms Feldman: The duty is to enforce in the manner that appears practical to the director; and we had some discussion on that point yesterday. As far as the offence provisions are concerned, again they incorporate intent and in a situation such as the one you described, it would be the director, and only the director, who can enforce the support deduction order and all of the other things that come along with the enforcement of that support deduction order. If, in the director's view, it was not practical to pursue contravention of 3c(16) or 3c(15), then that I believe would be in the director's mandate to make that final determination, despite all the good arguments that you might advance as a counsellor or private citizen.
Mr Elston: If I have an opportunity to pursue my family law practice -- the difficulty is, all I really want is some effort to try to eliminate as many of these roadblocks as possible. Most of the people, or a good number of people, will feel that there are some onerous duties and obligations under this if it is well worked out, but in situations where people sort of say "But this is my normal business, do I have to tell those people? Am I going to be in violation?" the answer, if they went to a solicitor, would be: "The act says that if you don't give the notice, even though it's rational, the director can come after you. So you had better go home and fill out your paperwork and you had better send it in."
There is no flexibility built into the statute. As much as I think that the PA has said he hopes it is worked on flexibly, that is not the point. There is no flexibility. That is the point of the problem. Maybe there is some place where there is a general ability or a general power of the director to be "flexible," but I have not seen it. She is obligated -- or she will be obligated when we pass this stuff -- to do the work.
Mr Wessenger: She has to. She has to be flexible within the realm of practicability; we will put it that way.
Mr Elston: But there is no provision that allows her that. I am serious. She is required to do what is right and if somebody violates this statute -- for instance, if a client of mine was two days late in making a payment to SCOE, or whatever it is going to be called -- sorry, the Child and Family Support Statute Law Amendment Act -- if they are going to be late two days in making the payment, they are defaulting. They will be seen to be a defaulter and they will go on the statistics as a defaulter. The employer who does not tell about interruption, for whatever good reason, is technically violating the act and is subject to prosecution. In fact, I can see it being entered on the file "This employer did not inform us of..." It will not matter exactly why, but there can then be a record built up on the performance of that income source with respect to remitting under the provisions of the act.
It is not worth while pursuing this; I do not want to go on too long, but you cannot wish flexibility into something that does not contain a clause that allows flexibility. That is all I want to tell you. Believe me, where people are poisoned by the problems associated with splitting couples, do not underestimate what could be done to pursue people. If you want to put a clause in that says "The director shall be flexible in enforcing the provisions of the act," then that gives her some discretion. But until you do that she is obligated, in my view.
Mrs Cunningham: I just want to say that I thought this is a valiant effort on behalf of Mr Elston, which I will support. You might even get it through yet. But to my way of thinking it makes good sense and all that Mr Elston said was, first of all, he would like to see this as part of the legislation. He would certainly like to see some acknowledgement of the intent for it in the regulations. Personally, I think there are enough of these kinds of examples in our province today, because the workforce is more flexible. Some people work at certain jobs for two months and leave them and come back four months later. What we are doing by not passing this is giving more people opportunities to just break this law. Of course, I think these sections are very, very difficult. I understand that we may have to give it a go, but I think this is an opportunity to show some good faith to people who are in situations which most of us in this room would not consider usual.
But I think that these situations are prevalent across the province, especially with the changes in employment patterns of our society, and especially of young people. I think a perfect example was the person who was building a street, who walked up here to give his presentation and he said two things. The first thing he said was, "If you don't give me the opting-out part," which we will deal with later, "I won't have this job when I'm finished." Second, "I work on three jobs right now and I move around from time to time." This is an example of where the director's office could just be informed of this particular person's work pattern, given this time of year, and it would save an awful lot of anxiety. You know, Mr Chairman, what we are trying to do here, and I think it is worthy of serious consideration.
Motion negatived.
Mr Morrow: Mr Chair, may we have a 10-minute recess?
The Chair: All in favour of a recess?
Mrs Cunningham: I have to know why. Does this have to be unanimous or is it by a simple majority?
Mr Morrow: They want to smoke.
Mrs Cunningham: What about the three cents per cigarette? You had better start thinking about that. If you are going to represent the public, you should come here healthy and --
The Chair: All in favour of a 10-minute recess? All opposed? Recessed, 10 minutes.
The committee recessed at 1533.
1546
The Chair: Mr Wessenger moves that subsection 3c(19) of the act, as set out in section 3 of the bill, as printed, be struck out and the following substituted:
"(19) If an income source is required to make payments to the director's office under a support deduction order and the income source receives a garnishment notice related to the same support obligation, the income source shall make full payment under the support deduction order and the garnishment shall be of no effect until the income source has received notice from the director that the support deduction order is suspended or terminated."
Motion agreed to.
The Chair: Mr Wessenger moves that the French version of subsection 3c(20) of the act, as set out in section 3 of the bill, as printed, be amended by striking out "dette" in the fourth line and substituting "créance."
Mr Elston: Mr Chair, I wonder if I could have the parliamentary assistant read the entire section in French so we could get the --
The Chair: I am not sure that his cadence would add to the deliberations, Mr Elston.
Mr Elston: Just trying to be of some assistance.
Motion agreed to.
The Chair: Mr Wessenger will move an amendment to which, I believe, a Liberal amendment may come forth, so Mr Kwinter, perhaps you could present that later. But first the amendment comes.
Mr Wessenger moves that subsections 3d(1) to (5) of the act, as set in section 3 of the bill, as printed, be struck out and the following substituted:
"3d (1) A court that makes a support deduction order may immediately make an order to suspend its operation or the court may, on motion, subsequently suspend its operation.
"(2) The court may suspend a support deduction order under subsection (1) or subsection 3k(6) only if,
"(a) it finds that it would be unconscionable, having regard to all the circumstances, to require the payor to make support payments through a support deduction order; or
"(b) the parties to the support order agree that they do not want support payments collected through a support deduction order and the court requires the payor to post such security as it considers adequate and in accordance with the regulations.
"(3) The following shall not be considered by a court in determining whether it would be unconscionable to require a payor to make support payments through a support deduction order:
"1. The payor's payment history in respect of his or her debts, including support obligations.
"2. The fact that the payor has had no opportunity to demonstrate voluntary compliance in respect of support obligations.
"3. The fact that the parties have agreed to the suspension of the support deduction order.
"(4) For the purposes of clause (2)(b), security shall be in a minimum amount equal to the support payable for four months and the security shall be in money or in such other form as may be provided for in the regulations.
"(5) The parties to a motion brought to suspend the operation of a support deduction order are those persons who are parties to the support order.
"(5a) If the payor brings a motion under subsection 3k(6), the director must also be served with a notice of the motion and may appear.
"(5b) A suspension order shall be completed and signed by the court at the time it is made and shall be entered in the court records immediately after it is signed."
Discussion of this amendment?
Mr Elston: Mr Chair, if I might just raise the issue, I think we have an amendment on the section.
The Chair: Thank you.
Mr Elston: I am not sure that I am able to move it, but I would like one of the other members to do it. I just wanted to bring that to your attention before we moved to discussing --
The Chair: Yes, certainly, I mentioned that earlier. Mr Sorbara or Mr Kwinter?
Mr Sorbara moves that clause 3d(2)(a) of the act as set out in the government motion be struck out and the following substituted:
"(a) it finds that there is, having regard to all of the circumstances, a substantial reason for suspending its operation."
Mr Elston: Mr Chair, do we wish to do all of the amendments inside the one motion at one time, or do we deal with each one separately? Because we have another one or two coming up in the same area that has been just outlined as an amendment. Do you want to have them all introduced at one time and then we talk to each of them, or --
The Chair: The clerk informs me there can only be one amendment to an amendment on the table at a time --
Mr Elston: One at a time, fair enough.
The Chair: -- so the other amendments to the amendment would have to be dealt with separately.
Mr Elston: It is a very difficult issue to talk about, because it is actually a package of amendments that affect the entire operation of the series of amendments proposed by the government, but I think it is --
The Chair: The clerk informs me that you can speak on the matters together. However, we can only deal with one amendment to an amendment at a time, so while we may have a global discussion, the vote would have to be separate and the reference would have to be separate.
Mr Wessenger: I was just wondering if there might be some mechanism of including all the amendments in one amendment. Is that possible at all?
Mr Elston: No, we cannot do it. You have moved the entire amendment and we are being advised that it is one at a time now, so I guess that is what we have to do.
Mr Sorbara: Maybe you start out by giving your speech on what you are trying to do with the amendment. Is that appropriate, Murray? Do you know?
The Chair: No, it is not.
Mr Elston: Technically not, it has to be --
The Chair: No, it is not.
Mr Sorbara: Except that we are discussing a very large issue here now, are we not?
Mrs Cunningham: It is a big part.
Mr Sorbara: Yes.
Mrs Cunningham: Can we write the rules?
Interjections.
Mrs Cunningham: Do we all agree, because it is a very large part where all of us have made amendments, and I think if we can talk about the whole --
The Chair: My understanding is that if there is unanimous agreement, Mr Wessenger could discuss the government amendment first --
Mr Elston: Do that.
The Chair: -- and then subsequently we can discuss the amendments. Can we vote on them in that order?
Mr Sorbara: No, we would have to vote clause by clause --
The Chair: No, we would have to vote on the amendment to the amendment first. However, we can discuss the larger amendment first, if you wish.
Mr Sorbara: Even before we get to that, do we have agreement on that?
Some hon members: Yes.
The Chair: Do we have agreement to discuss Mr Wessenger's amendment?
Mr Sorbara: Just before we get to that, there was some sense during the conversation that I had with the Vice-Chairman of this committee -- no offence to you, Mr Chairman; and the Vice-Chairman and whip, I take it -- that if there was some agreement for the government to be flexible here and indicate a willingness to allow this modest reshaping of this --
Mr Elston: No, no. The director is to be flexible, not the government. We already understand that.
Mr Sorbara: Oh, well, yes, but that is a whole other speech -- that we could actually get through this stuff pretty quickly and probably even have this bill wrapped up today. But I have not got any indication yet from Mr Morrow what the government's intentions are here, and it would just be interesting to know.
The Chair: Mr Morrow, did you hear the question?
Mr Morrow: No, I did not.
The Chair: Mr Sorbara, could you repeat it to him, please.
Mr Sorbara: I will repeat it for the benefit of Mr Morrow. He and I had some discussion, along with Mrs Cunningham, about whether or not the government was going to be interested and flexible in considering some change in this very crucial component of the bill. Just to put it on the table, these are the sections dealing with the ability of individuals to be relieved of their responsibilities and burden in use of the SCOE system; that is, a payor and someone who is the beneficiary of a support order can get out of the system and not have to use a support deduction order in order to have support flowing.
Now, I did not get an answer back. I just want to tell the committee members, if there is flexibility here, then we could even almost adjourn and negotiate what the new deal is going to be, or we can go through this for hours and hours and hours.
Mr Morrow: Basically, when the three of us talked, yourself, Mrs Cunningham and myself, I stated that I would take it back to my government colleagues. Is that not correct?
Mr Sorbara: Yes.
Mr Morrow: I did take it back and I understand that there is no movement on that.
Mr Mills: Oh.
Mr Sorbara: You disagree with that, I take it, Gord?
Mr Mills: Yes.
Interjection: Disagree with what?
Mr Sorbara: With his position. No movement.
Mrs Cunningham: Yes, we do, because we do not even know why they said those things.
Mr Sorbara: Now let's get on with this.
The Chair: Mr Sorbara.
Mr Wessenger: Or do you want me --
The Chair: I am sorry, Mr Wessenger.
Mr Wessenger: I thought you wanted to hear my position with respect to this amendment.
The Chair: Yes, I thought that was the earlier request. Shall we proceed with your --
Interjections.
The Chair: Mr Wessenger, please go ahead.
Mr Wessenger: Let us just start. The original bill provided that the court might suspend a support deduction order in the event it was unconscionable, having regard to all the circumstances.
Mr Sorbara: What is going to go on here is unconscionable.
Mr Wessenger: It is remaining the same except that we have defined what is not unconscionable by indicating the tests of the payor's payment history in respect of his or her debts, including support obligations, the fact that the payor has had no opportunity to demonstrate voluntary compliance in respect of support obligations, and the fact that the parties have agreed to dispense with this support deduction order. So we have defined that as not being something that the court should consider in the question of unconscionability. The intention is to make it difficult in certain circumstances to get out of the question of support deduction. I think that is fair to say.
There are two specific circumstances here that members should consider. In the first instance, I think it is very easy, in fact, at the initial period to get out of support deduction. There is a very easy way to get out of support deduction before an order for support is made and that is to avoid having an order for support made, because --
Mr Sorbara: Hold on. What does that mean?
Mr Wessenger: Let us just take -- the parties are negotiating about the matter of support, a court application --
Mr Carr: Negotiating?
Mr Wessenger: Yes, the fact that there may even be a court application made. I will give this example: On the day of the court hearing, the parties agree on the amount of support. The parties have the option at that stage, if they wish, if they agree, to enter into a separation agreement providing for the terms of support. They may withdraw their court order and the support deduction does not apply in that circumstance, unless one of the parties elects to register that separation agreement.
Mr Sorbara: Oh boy.
Mr Wessenger: So the fact is --
Mr Sorbara: Are you advocating that?
Mr Wessenger: I am saying that option is available up until that time under the existing situation with respect to the practice of family law, because I have encountered this situation recently. I have seen separation agreements negotiated on the day set for a hearing and the matter be adjourned and subsequently withdrawn because a separation agreement was entered into.
So where the parties are in mutual agreement, they can easily avoid this whole question of support deduction orders. Where they want to be outside the system, they have that option at the time the matter of support is initially to be determined. They have that option. Now where it is --
Mr Sorbara: Could I just interrupt you for a second?
The Chair: Mr Sorbara, Mr Elston and Mrs Cunningham are before you.
Mr Sorbara: Someone should interrupt him.
Mr Wessenger: Okay, so let me just --
Interjections.
Mr Wessenger: I am just saying --
Interjections.
The Chair: Perhaps we could allow -- Mr Wessenger does have the floor.
Mr Wessenger: This is my perspective of it and I think it will be the way it will in fact work in many cases. Once a court order is made after a hearing, then the parties can only get out of it on the question of whether it is considered unconscionable or, if there is security deposited and the consent of the parties, of course. So once you have a support deduction order, the intention is to make it difficult to get out of that support deduction order, in effect. Those are the two circumstances that I see it arising. In my opinion, I do not see why members of the opposition are concerned. They are saying, "We want the right for the parties to get out on consent." In fact, they have that right until a court order is made to get out on consent.
1600
Mr Elston: I really do have to disagree with that sort of practical advice from the parliamentary assistant. I cannot see a situation where a lawyer would be able to continue practising his or her profession where they allowed a support decision -- you know, minutes of settlement are always filed with any final order made by the court, and for a lawyer to allow his or her client to go out unprotected with respect to taking the protections to the nth degree would be a very novel piece of advice for those lawyers. It is okay if you only take somebody into court to get a separation agreement signed. That is one thing, but you would never allow a person to go through divorce proceedings where you would not make some provision for the inclusion of the separation agreement and the terms of the minutes of settlement for the court order.
Mr Sorbara: And that is a support order.
Mr Elston: And that becomes a support order. Mr PA, I am afraid that we would end up having a whole series of applications to the law society's insurance claim fund, because people were malfeasant.
Mrs Cunningham: Not well advised.
Mr Elston: It would not be, in my view, a very discreet act on the part of a legal adviser to allow his or her client to go out without the protection of the court order in stating a sum to be paid for support. They would be back in court almost immediately.
The other problem is this: If they decide to keep that off the interim court order, that is very well and good, but I will tell you that under the provisions of this act a client could then go to the director and say, "Please enforce this for me," and you are right back in the same situation. Your advice, therefore, is, with due respect to your considerable and much longer experience in front of the bar in these matters, not very practical and in fact it does not answer the concerns that you want to deal with. What you want to do is have it both ways. You want to tell people that they can avoid this when in actual fact, from a practical standpoint, not very many lawyers are going to let their clients walk away without some kind of a support deduction order being made in a final court determination. Maybe in the interim it is okay. Maybe even when they first separate, the parties will not want to have any part of the separation agreement brought before the court for endorsement on the record; but anybody who goes through a final disposition of matters with respect to custody in particular and other matters would be malfeasant, as I said earlier. Actually, "stupid" would be a better word. And I just have some real concerns.
Mr Wessenger: I fail to see any difference, really, with respect to the matter of support; as you said yourself, it makes no difference in the amount of support, whether it is contained in a court order, when it is a separation agreement because it can be enforced the same way. You are quite right. A separation agreement obligation to pay can be --
Mr Elston: But you are telling people that that is the easy way of avoiding this. I am telling you it is not an easy way because, as a person who might counsel the other one to make sure there was no misunderstanding about whether there is an obligation to pay, I would go to the director and advise my client to go to the director. You cannot give people a sense that there is an easy way to avoid this and then say, "But we don't want people to avoid it."
Mr Wessenger: But obviously if you, as a lawyer, tell your client, the recipient spouse, to register the agreement with the director, then obviously your client wants to have the advantage of the support deduction order. It is only in the instance where your client did not want that advantage --
Mr Elston: No, no, you do not -- I am sorry, I had better quit here, because I am just really unnerved by the types of things that will appear on this record as advice to people practising family law as to how you can tell your client you can avoid getting the support deduction order, because it is not practical. It is not, I think, good advice and in fact it would expose the legal adviser to very big problems when the matter blew up, and I just think that you are trying to play both sides of this issue and you are losing both ends of it, because you just cannot have it both ways. You might as well tell the people there ain't no way you are going to let them out of this.
Mr Wessenger: No, there are many -- probably most family disputes are now settled by separation agreement and not through the process of court. I do not know the statistics, but there is a high level of support matters that are dealt with by separation agreement and not through the court process.
Mr Elston: How many of those court orders also incorporate the terms of a separation agreement as part of the minutes of settlement?
Mr Wessenger: You are certainly entitled to do that. Of course, you are entitled to do that.
Mr Elston: And if you would fail to do that with respect to support, how do you think the legal people would fare?
Mr Wessenger: I think we would have to ask the family law practitioners that question.
Mr Elston: Now you are --
Mr Wessenger: Because of the fact that I have -- the only thing I can say is that in my own experience the most experienced family law practitioner, one of the ones I have dealt with, had the habit of using to a large extent separation agreements, and this is -- so I am just saying it is my own --
Mr Elston: Anybody who practises today will have a lot of separation agreements.
Mr Wessenger: Maybe some of you might be critical of his practice, but I am just saying that that was --
Mr Elston: No, I am not critical of people having separation agreements. Those things happen all the time.
Mr Wessenger: I think they are a good way to resolve the matter.
Mr Elston: But they are not the final disposition. When you take a matter for divorce, for instance, the proceedings, you either put that stuff in there or you refer to the separation agreement as though it were part of the order. You have sort of come to a conclusion, I guess, that these people are never going to take that final disposition of the couple's arrangements. I just think that would be an unusual event to have fall. I guess I had better stop here, but --
Mr Wessenger: Okay.
Mr Sorbara: I just want a supplementary.
The Vice-Chair: Mr Sorbara, Mrs Cunningham is first, if you would not mind.
Mr Sorbara: With her forbearance, I just want a supplementary comment on Mr Elston's comments.
The Vice-Chair: Yes, go ahead.
Mr Sorbara: I would plead with the parliamentary assistant to the Attorney General of the province of Ontario simply to reconsider his remarks there, because what he is actually suggesting in the scenario that he presented to this committee is that a lawyer would be advising his client, who was about to be made the subject of a support order and a payor under a support deduction order, that he in fact, if you follow your logic, would be able to buy his way out of a support deduction order, because in that negotiation of a separation agreement the person to be benefiting from the support order would be bought out; no money would be offered so that you would stay out of court. Surely to God you do not want to be advocating that within the context of these hearings or as part of the policy of the branch or the policy of this act. I just think those remarks are unacceptable and all of the things that Mr Elston said about negligent practice on the part of solicitors and inappropriateness of activity are I think unfortunate.
Mr Wessenger: The fact is, a lawyer who practises in this area will advise the client of the options and the risks available. The client always makes the decision in that regard. The lawyer merely puts out the options to them and if those clients decide they want to go the option of the separation agreement, they are certainly entitled to do that.
Mr Sorbara: A lawyer who does not point out the benefits accruing to, and the burdens arising from, this act --
Mr Wessenger: I would agree --
Mr Sorbara: -- is a lawyer who is negligent in his or her practice.
Mr Wessenger: I agree with you, I completely agree with you. There is no question there.
Mr Sorbara: Okay, but your remarks seem to suggest that there was an easy way out of this: Just negotiate a separation agreement. How do you do that? Offer more money, promise the world, but please keep me away from this act, and that is scary.
Mr Wessenger: I think it is fair to say that certain parties will wish to be outside the act and will try to negotiate separation agreements.
Mr Sorbara: I know, and that is precisely the problem that we pointed out when we started discussing this, that the parties that can offer the most money -- because how do you get out of it? Money. You buy your way out, and that is what we do not want. We do not want people to have to buy their way out. That is why we are objecting to the posting of security. That is why we said we want greater flexibility here.
Mr Wessenger: I know --
Mr Sorbara: Soon Mrs Cunningham is going to show us posters about public education campaigns and buying your way in and buying your way out. This is the risk that we run in the province of Ontario. All I am saying to you here is, measure your remarks and measure the extent to which you want to force people into this law.
Mr Wessenger: I think that it is quite unfair to say that people enter into separation agreements because they are buying their way out. I can see many parties, particularly those who are responsible and have got along well together, deciding that they would rather deal outside the act, not because of the question of buying out, but the fact that their relationship may be reasonably good, the fact that to enter into a separation agreement for some parties, they would prefer to see the money directly from the other party, rather than having it go through the administration branch, because --
1610
Interjection.
Mr Wessenger: Yes. The fact is that you are going to have people choosing, for a variety of reasons, to enter into separation agreements. I think a lot of people choose it because they say: "Hey, I don't want the money going to the branch and then going to my spouse. I'd rather have it go direct, and the way I can have it go direct is by entering into a separation agreement."
Mr Sorbara: Or, if you are flexible, allowing a support order to be registered, but by agreement of the parties and with the blessing of the judge the people can be relieved. The support deduction order can be suspended. And that is all we are arguing for here, that sort of flexibility. But when we bring that up, when we say, "Let's have that flexibility before the court," suddenly the Attorney General and his parliamentary assistant say, "No, we can't have that flexibility. Only people who can put up money can be able to do that." That is harsh and cruel on the poor and the less affluent in our society and should not be a part of the first New Democratic Party bill coming out of the Ministry of the Attorney General, surely.
Mr Wessenger: There were several representations made by certain groups that did not want any opting out. In fact, there were a lot of representations that said there should be no way to get out of it, including the lawyer for the Canadian Bar Association. He really did not want a way out at all.
Mrs Cunningham: But you did not listen to anything else he said.
Mr Wessenger: And the law union did not --
The Chair: Mrs Cunningham, you are on next.
Mr Wessenger: And -- okay.
The Chair: No, I am simply indicating that she will have an opportunity to speak.
Mr Wessenger: Okay. And the concern is that if you allow an easy opting out by consent, the recipients will be more susceptible to being coerced to consent, and there is a major concern there of coercion. Certainly in many relationships there is that coercion.
Mr Sorbara: That is just political hogwash, I am sorry to say.
Mrs Cunningham: Mr Chairman, I think what we have come to here is probably the --
Mr Sorbara: A good point to adjourn.
Mrs Cunningham: Maybe, but I just thoroughly disagree with the advice that we are being given here and I do not ever want to appear down the road with some of my colleagues that I have served on this committee with, saying that there is really an opportunity to opt out, because if somebody starts thinking about the practical and the realistic scenario that we face when people are in the process of separation and divorce, even initially -- and I think the parliamentary assistant brought this to light -- in the form of a separation agreement in the beginning, eventually, sooner or later, people get talking about what that separation agreement really means. When you start talking about furniture and ice skates and who is going to pay for camp, people get annoyed. If you have got a lawyer giving you the best advice he can give you, he is going to advise you of all of your options.
The reality is that sometimes, without realizing I think what a painful tool this is for people who intend to pay, to be subjected to these support deductions in their place of employment, and especially the kinds of people we are talking about here -- remember, we are just talking about people who are willing or who already have a track record of paying. That is who we are talking about. This argument right now is to give people an opportunity to pay before the income source becomes involved, otherwise their employer. That is the issue, and I think we should be doing that in any way we can.
I can see that the government did respond in its way with regard to the amendments that we are talking about right now. I also listened as the parliamentary assistant advised us that there were presentations that advised us -- when we asked the questions, by the way -- that there should be no opportunity to opt out. I would advise you, given the letters that we have and given the presentations that we received in public hearings, that there are, at least in my files, some 56 requests for an opportunity to pay and be able to opt out of these automatic deductions that will take place if you have been advised, I think, of all of your options in the event of separation and ultimately divorce.
I will remind you that in the presentations that came before us, often, by the way, there would have been no reason for them to come and say, "I don't think you should give someone an opportunity to opt out." The assumption in the legislation that they were addressing us on was that no one would have that opportunity. So it is not perhaps fair. But when we did ask the question of the groups that we would have expected would have taken a tough stand, four of them did. Those numbers are very different. I am not saying that you should build your response on those numbers, because we did not ask everybody, and where we did, I think we fairly asked people whom we would have expected to take a very strong stand. But people voluntarily, on their own, who wrote letters or came before the committee, asked that these support deduction orders not be automatic.
To sit here today and say that they are not necessarily automatic where people agree that this should not happen, through a separation agreement or otherwise, is simply not good and fair advice. That is not fair, because in the process in separation and divorce, people are angry and they are being advised by their legal counsel that this is an option they have and it is one that they should take advantage of. I feel that, practically speaking, some of the people who are not statistics that we are concerned about, and the potential young people who are not the kind of people whom we are concerned about, are going to get caught up in the bureaucracy that causes more anger and more distress and lack of respect on behalf of children. That is who I am here representing today: families and children, and I do not think that this legislation is in their best interests.
I simply know, in checking back on this, with the advice that we get, and following through on the letters that we were sent, that our amendment -- and it is on page 32, and there is a Liberal amendment as well. I thank the government for its effort, but it is not good enough. It is not right to stand up and say that this legislation as passed by the government is fair legislation when it comes to families who want to support each other. It is not fair not to give people a chance and an opportunity.
I think the government would show more leadership if it was to accept the amendments that we are proposing and the Liberals are proposing. Let us work on them together instead of coming in here having been given some kind of a marching order, because although our amendments are there, we had not had a chance to talk about them or to hear your views on why you had put your own amendments forth. To come in and say that there is no flexibility is not in the interest of good committee work. I will tell you now that I took great exception in the past and I will take great exception in the future.
I have sat through these hearings. I have given up the committee that I should be on because I think that this is a very difficult piece of legislation. I was hoping I could be helpful. But to come in with a preconceived policy -- and that is all it is, a policy, which we are responsible for. The elected members of this committee are responsible for policy. We have now heard from the public that we represent and there were overwhelming presentations to all of us to say: "Give us a chance. We do not want automatic deductions because of this legislation." We had some pretty poignant representation on behalf of real people and real families that were coming here -- not an easy thing to do -- telling us their own stories.
We have not even begun to hear from people who have no idea that we are spending our time talking about this ridiculous process. Wait till we hear from them, and business and industry. This government was elected because it is supposed to be listening to the people, and it promised it would, and I will be telling the people that I sat on a committee where the overwhelming evidence was that this piece of legislation not be passed in its present format and that automatic deductions not be made. That is what they said.
They also argued that the advice they would get from any good lawyer who is allowing people to understand and take advantage of all options -- and these are not normal circumstances. These are circumstances where people are very upset, and sometimes it makes you feel good to take advantage of all the tools of the trade. I know, and I can speak as a person who has worked with families, and Mr Chairman, you have as well, that when you are angry you do not always make good decisions. Once you are in the system, it is very difficult to get out of it, and this bill would not allow you to get out of it based on a good track record; not at all.
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So I am saying, at least do not stick them in the system if they make regular payments. I think I heard Mr Morrow come here and say -- he did not use these words but he said -- "There is a policy decision here that we're not going to be able to discuss. There's no change from the government's point of view."
The Chair: Would not Mr Morrow's comments be on the record in that regard?
Mrs Cunningham: Yes. But since he just lit up like a lightbulb when I made the statement, certainly if he did not I am the first person to say, "Great." If it is otherwise and I heard him incorrectly, let us continue. But if we are going to continue, I see some four or five different amendments that we should be discussing as a package, as we did earlier today, and come up with a solution that is meaningful to families.
Mr Chairman, perhaps it would be appropriate for Mr Morrow to jump in right now and explain what he did try to say there.
Mr Morrow: I think what I was trying to say is that we obviously are going to sit here and listen.
Mrs Cunningham: And what?
Mr Morrow: And listen.
Mrs Cunningham: But if we finish by the end of the day and we lose this thing, unless you have somebody with wings on who is going to come flying through that door, I do not see me budging one of you at this moment. I have not sat on committees like this in the past. If you have an opportunity to huddle like we do -- thank God for opposition every once in a while -- and make commonsense decisions based on input and good advice -- and I respect the staff and what they are doing -- but this is a policy decision that is our responsibility, not theirs.
Mr Morrow: Mrs Cunningham, I cannot speak for the rest of my colleagues but I can speak for myself that I am listening.
The Chair: Further discussion? This is a general discussion, I believe, into --
Mrs Cunningham: I would like to hear from the members of the committee who are here on this point. I think it is only fair. We have all been struggling together, so let's hear.
The Chair: If I can go back to this, this is a general discussion --
Mrs Cunningham: And I will miss my House leader's meeting. I might be giving everything away there.
The Chair: This is a general discussion not only on the government amendment, as I believe it, but something of the subsequent amendments to the government amendment. Mr Fletcher?
Mr Sorbara: On a point of order before Mr Fletcher begins: My understanding was that we were going to adjourn at 4 o'clock. Is that no longer the case?
Mr Poirier: There was no agreement to that.
Mr Fletcher: No one agreed to that.
The Chair: There is no agreement. If someone wants to put a motion forward in regard to adjournment, we could certainly entertain it.
Mr Sorbara: I want to hear from Mr Fletcher first. There are hours to go on this.
Mr Fletcher: Just some comments about what we are doing here as far as the kids are concerned, the children and the families. In my riding of Guelph there is an organization known as Kids Can Play. The organization pays money to certain organizations, sports organizations, piano lessons, dance lessons, so that children can participate in the community activities.
The clientele that they contribute to are mostly -- I would say 90% -- single-parent families. Again, that 90% would also show that most of these single-parent families are headed by women. There is not enough money in the family to allow these children to go out and participate in activities that normal family members, with two parents, can go out and participate in. I think this organization raised something like $45,000 and spent it all last year in the city of Guelph, a population of about 86,000 people, to assist these children.
We have seen in the past that past regulations have not worked to allow for payment to help these kids who are suffering, who do not have the same advantages as the normal family. I think it is time this piece of legislation had some teeth in it, and I honestly do believe this is putting teeth in this legislation.
Every government, when the Conservatives were in power, when the Liberals were in power, left its mark as far as pieces of legislation are concerned. And that is what we are doing. We are leaving a mark. History is going to tell us whether that is happening.
Mr Sorbara: Don't say this is your mark, Derek.
Mrs Cunningham: This is not a mark you want to remember.
Mr Fletcher: What we are doing is trying to put some teeth into the legislation so that, as Mrs Cunningham said, the children are not going to suffer. That is what we want to do. That is the way we feel, as a government, this is what we have to do. As far as being rigid on this piece, yes, right now, my personal opinion is, yes, we are rigid on this piece.
I listened to some of the people who came, and some of them were the husbands, who were talking about "Please do not keep us in," and yet one of them I remember distinctly saying, "Oh, yes, I've been behind on my payments before." Who suffered? He was three months behind, four months behind. Who suffered? But it was a flippant statement, "Oh, yes, I've been late before."
If that is the attitude, that yes, I can be late any time but I will make it up somewhere else, you do not make it up to the people who are being affected by not receiving the moneys. That is what we are trying to do, make sure that it is happening. If someone is a good payor and both parties recognize he is a good payor, they do not have to use it. I think that is something that is already there.
Mr Sorbara: Are you supporting that? Do you guys agree with that?
Mr Fletcher: I said that they do not have to. If they do not want to apply for it, they do not have to.
Mr Sorbara: You supported the kick-out provision then, for the record, Mr Chairman.
Mr Fletcher: No, I did not. I did not support the kick-out phrase. If they do not want to get into the system, they do not have to -- and in another way.
As I was saying, and I am going to go back to what I said, after looking at the posters, I have no problem with the posters that came from Florida as far as I am concerned. Because if it comes down to that where we have to actually go out --
Mr Sorbara: The great big jurisdiction of the United States of America.
Mr Fletcher: -- where we would have to go out and force people to actually be caught for this, then perhaps that is what we have to do. But there is absolutely no way that women and children should have to suffer because of the lack of finances because some person said, "Well, I'm not going to pay," and can be flippant about it and can get away with it. As far as I am concerned, that is not right for society and it is certainly not right for children.
Mr Kwinter: I think there is a difference of opinion here. We just heard from Mr Fletcher where he has no problem if these people agree not to enter the process. From what I have heard not only in the public hearings but in our discussion of clause-by-clause, I have not seen that particular interpretation.
I do not think there is any question on behalf of any of the parties -- and by this, I am talking about the political parties -- that they support this bill. It has already got support in principle and we are going through the clause-by-clause to enforce it.
On the other hand, I can tell you that the one issue that came through loud and clear during the public hearings were those spouses who have been making regular payments, have never missed and suddenly find that the state is now intruding in their private life. Without question, if someone is in default, if someone has a history of not making regular payments, I have no problem. I think it is important that you understand that one of the things that has disturbed me, and we have tried to correct it somewhat by changing the term "debtor" to "payor," is that somehow or other these are bad people. When you consider that -- and I tried to get the exact figure -- nearly one out of two marriages breaks down, we are talking about a very, very substantial number of people, which statistics show is going to increase over the years and not diminish.
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So it is almost going to become a way of life, and I can tell you that one of the most negative things in people's perception of government is that it intrudes too much in their life. But the government is there to serve the people and not to create problems for them, and that is what they want. You are their representatives. My concern is that we are providing legislation that leaves no discretion, leaves no ability for someone who is a responsible person, who has been making regular payments, who takes his responsibility seriously, yet under this provision must go through the courts, must have his personal business made known to one, two, three or untold numbers of people in his work organization without any provision for having that person, based on his record as a responsible, financially capable person, get out of this system. It would seem to me that this is something that we should be addressing.
Mr Chairman, I would suggest that this is not something that is going to be resolved in two minutes. I do not think it is going to be resolved in two hours. Rather than have the discussion take place now and then have to be terminated and be renewed again in weeks or whenever it is that we get back, I would suggest that we adjourn so that when we discuss this we can discuss it in one entity so that we do not get this disjointed discussion that we will have to retrace anyway. So I make that motion.
The Chair: Mr Kwinter moves adjournment. All in favour of adjournment? All opposed? Defeated.
Mr Sorbara: I thought we were going to adjourn at 4 o'clock.
Mr Carr: I guess the point I would make in reply is that we all are trying to get more --
Mr Sorbara: Gary, could you keep talking until I get back?
Mr Carr: I will try. I am not quite like you.
Mr Sorbara: I will be right back.
Mr Carr: I am not quite as good as you.
Now that he is out, and I do not want to ramble on like he does, either, but one of the motions that was defeated was a Liberal motion that talked about putting more money into the hands of the children, and I guess it was motion 7, which talked about raising it to the poverty level. So on the one hand we are saying that here is a motion that will put more money into the hands of the kids, and yet you vote against it. And yet when you have something else that looks like you give a provision to opt out, then you say, "No, we want to put more money into the hands of the kids, so we can't have any opt-out provisions." You cannot have it both ways. There are too many contradictions there.
I would refer to our motion. If you really want to make sure that people pay, I believe that motion 32, which says if you miss one payment you will go into the system, will send a very clear message that people are not going to fool around, that they will know they will come into the system if they miss one payment; one payment gets missed and you will come into the system. I think that is a pretty fine line. There were others who wanted to make it three payments and so on, but we in our caucus discussions said, "No, we have to make sure that the kids do get the money and that we get it into their hands." We want a balance between those who will pay on their own and those who will not for whatever reason, whatever the number is. We will give them a chance, and if they miss one payment they will come into the system.
We hear that, "We want to keep it simple, keep everybody simple, so we'll throw everybody in the system." I will submit to you that by throwing everybody in the system we are going to clog the system and the efforts of the fine people who are here, including the director, of trying to get enforcement will be clogged because of the amount of problems that will come up, whether they be clerical errors that came up with the unemployment where the government took too much off, or all the numbers of errors that can happen. We will have people enforcing clerical errors, potentially on people who would be paying instead of going after those who would not pay.
If we want to make it tougher legislation for those who would not pay, then I think we should work in that direction: Come in with something a little bit tougher in that area. But for goodness' sake, you are going to have some people who sat here and said, "We are going to pay." And I will go back to statistics; we originally had talked about the 75% that do not pay. We were able to get the statistics from SCOE in the memo from the director dated 18 February. Really what we are going after with this legislation is the 42.5% where the enforcement undertaking is pending. If we look at the ones with some arrears owing, we heard some of the discussions where some of the arrears owing are the situations like Dofasco where 70% of the people there are in default because there is not enough money there. Then you look at some of the other ones that are transferred out. This will not help to get any more to those people. The no-filing package received from creditors with insufficient information, that will not be covered by it. So we are really talking about going after the 50% of the people. What I am saying is, let's focus more of our effort on the people that will not pay, and let's come down on them. I will not go quite as far as Mr Fletcher with some of the advertising that went too far. Let's come down tougher on those who will not pay, but for heaven's sake, we are going to clog the system for those who might want to pay.
We get back to the negotiations, I think the parliamentary assistant said, that will take place before, and I think he was very kind in calling them negotiations; through this we heard about lawyers who came in and said, "We are glad you left access out; do not conflict it with getting money for the kids." But they are the same lawyers who in the negotiations over payments use access as -- and I will be very kind to them -- a negotiating tool. They basically say, "You can get more access if you give us more money." So they say, "Don't include that in the legislation, but it's okay if I want to use access as part of it."
So when the parliamentary assistant talks about the negotiations that would be taking place, they just are not going to be taking place. What you have is a situation where nobody is going to be opted out. We are basically saying that everybody is guilty and everybody is going to fall under this, that everybody is suspect. You are going to have a situation where those who want to pay are going to be clogging the system, in terms of going after people by whatever means we can use to get those people to pay, and there are some like that. This piece of legislation has not hit the public yet, but when they realize, as the odd person has done, that we are going to have intervention, I believe this is going to be probably the biggest first step that people will be coming towards this government and saying you are interfering when they would be paying normally. We talk about the --
Interjection.
Mr Carr: The Chair is implying that I am rambling now. As I look at this, I just see too many contradictions. We are saying on the one hand, "Let's get the money in the hands of the kids," and yet we defeat a motion that would put more money in their hands --
Mr Fletcher: No.
Mr Carr: -- in motion 7, because that is what that did --
Mr Fletcher: No, it did not.
Mr Carr: -- and we say we will take care of it later, we will take it in other areas, but then on the other hand we say, "No, you can't have any opting out because some of the money will not go to the children." What I think is going to happen here as a result of this legislation is -- and I said this a little bit earlier -- in a lot of cases, and I am not even going to suppose I understand what judges are looking at, but if they are going to err in terms of the amount, they are going to now err in giving the children less than they might normally, knowing the circumstances of what happens if in fact somebody does not pay.
So I guess as we reflect on this, I would hope the members of this committee would look at it and say, "Yes, the agreement is there that we need to get more money into the hands of the children, but this isn't going to do it by including everybody." I will conclude my remarks with that little bit.
Mr Morrow: Would it be possible for a five-minute recess? Five minutes, and five minutes only.
The Chair: Agreed. Recess until 4:45.
The committee recessed at 1640.
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The Chair: Mr Sorbara, you are indeed up next, sir.
Mr Sorbara: Earlier on in the day my colleague Mr Kwinter, beside me, and I were talking about The Phantom of the Opera. There is a wonderful line in The Phantom of the Opera. The phantom says, "So, it shall be war between us," and that sort of moves the thing along, you know, and then the thunder and lightning. And I say, so it shall be war between us, but the problem here is that in The Phantom there was a real, good, substantial reason for the war, in a phantom representing the night, evil, the darkness of the night, and Raoul, Vicomte de Chagny -- I do not how to spell, I am sorry, I tell Hansard. I will find that out -- representing white and good and heaven. I hope you all go and see it because it was a great performance. In fact, you probably know, if you have seen it, that Garth Drabinsky, who is a great Canadian entrepreneur, did a marvellous job of renovating the theatre and really mounted a tremendous production. Anyway, there was reason for the war between them; so it shall be war between us.
Unfortunately, what is happening in this committee is that a war is developing.
Mr Mills: Oh, no.
Mr Sorbara: I hear my friend the member for Durham East say, "Oh, no," and I wish a war were not developing between us. It is too early in this Parliament to have a war. I tell the members from the government party that, frankly, they are too inexperienced to wage an effective war. Yes, some of us on the opposition side are new in committee but we have been around this place for a while so --
Mr B. Ward: But we are the good guys.
Mr Sorbara: No, I am not saying it is like the US against Iraq. It is not like 10,000 sorties against two Scuds per day. In fact, we do have some experience in this place and some sense of how to conduct our business. Let me give you a little history lesson in this regard.
Mr Fletcher: You rammed through legislation when you were in power, and you know you did.
Mr Sorbara: Now, Mr Chairman, my friend from -- what is it? -- Guelph says, "You rammed through legislation when you were in power, and you know you did." Yes, sometimes we did.
Mr Fletcher: You probably --
The Chair: Mr Fletcher, Mr Sorbara has the floor.
Mr Sorbara: Now, now, just a second. He said "Sometimes." He was right. I tell my friend from Guelph and the other members that you know precious little about SCOE, about enforcement, about support orders and the whole ball of wax here. What you are doing is taking marching orders, and you are not even taking marching orders from Howard Hampton because he probably knows less than you, believe it or not. You have been sitting on the committee listening to the witnesses; he has not even been here. The parliamentary assistant knows a little bit, but he is taking marching orders as well. I know about this because it was the bureaucracy under the Liberals that wanted this, and now they are telling you. I am telling you that all we need to do is end the war, and let's sit down and discuss whether we cannot reshape this a little bit. You will not be embarrassed in front of the bureaucrats. In fact, you know what, they will think more of you. They will think: Wow, they are different.
Mr Fletcher: I do not care what they think.
Mr Sorbara: They are even a little bit different than the Liberals who preceded them.
Mr Wood: Can I get exempt from my income tax?
The Chair: Mr Sorbara has the floor.
Mr Sorbara: I do not care whether you are exempt from your income tax or not.
Mr Wood: For just two or three months.
Mr Sorbara: We are a few months into this Parliament. We are dealing with really a routine piece of legislation and on routine pieces of legislation generally there is accommodation. Even when the government wants to be rigid, unless there is a clear and compelling reason and a parliamentary assistant or a minister puts that reason on the table, there is negotiation or accommodation. We have some serious concerns with the provisions we are about to deal with. Mrs Cunningham cannot be here. I am not prepared to have this issue resolved today. I would like to work on it a little bit more so I say, let's adjourn. Let's let tempers cool. Well, at least, let's adjourn at 6 o'clock. Mr Chairman, I cannot even get an agreement out of the government party to a 6 o'clock adjournment. We may be here all night, and if that is what you want to do.
Mr Fletcher: Whose temper? Who has a temper?
The Chair: Mr Sorbara, I believe the rules indicate that we have to adjourn at midnight, not all night, sir.
Mr Sorbara: We have to adjourn at midnight.
The Chair: I believe so.
Mr Sorbara: That is the end of the day.
The Chair: I can confirm that with the clerk, but I believe it is --
Mr Sorbara: If you want to sit here, Mr Chairman, and listen to me till midnight, because the government cannot even allow us a little bit more breathing time on this thing, I welcome you to it. I do not have appointments to keep. I do not have miles to go and I do not have appointments to keep. I can be here until hell or SCOE freezes over.
Interjection.
Mr Sorbara: We are asking for a little bit of time. We are asking for an opportunity to talk more to the government members, to make representations to the Attorney General perhaps, to get our own act together a little bit more. We think there is something wrong with this. We think that it is not quite perfect. Those guys over there have no idea whether it is perfect. They are just like tin soldiers marching to the slaughter for no apparent reason. Why? And why not even agree to an adjournment? What is it? Is there someone pressing you? Are your voters saying to you, "You've got to get this passed right away, Derek. We are counting on you for this?" Hogwash. That is not true. They do not even know what you are doing today. They think you are down here actually being productive rather than listening to me. So let's go out and be productive. Let's have an adjournment. We will talk about it a little bit more. We will see if there is not some sort of accommodation. We will re-examine our amendments. What do we want? Somewhat more flexibility in the bill.
Mr Poirier: When do we want it? Now?
Mr Sorbara: My friend the member for Prescott and Russell says: "When do we want it? Now?" No, not right now. We would like it -- if you support our amendments; we will have a vote right now. But apparently, you do not. But we do not support your view, as well. So in those sorts of situations generally, I say to my friend, Morrow, who says he is from the union movement, what do you do? You have a little recess. You give a little breathing time to the parties unless there is a strike deadline imminent. There is no strike deadline imminent here. We can have an adjournment. We can end this discussion now and carry it on. Maybe when we get back we will understand that Howard Hampton and his parliamentary assistant and the branch absolutely have to have this thing. They have made promises out there and they want to have it this way or no way at all, and that is it, and the government stands or falls. But I do not see that right now. There is nothing urgent.
Leave the bill and you will find out that it does not come into force when it is passed. It comes into force on a day to be proclaimed, to be set by the cabinet. That means that Howard Hampton will get a message from these folks here that they have got the machinery ready now to put this into place and so please take this order in council to the cabinet and make Bill 17 a reality. That is not going to happen until September, October, November or whenever the machinery is ready. If my experience is anything, it may not even happen until next year, 1 January 1992. Often governments do that. Let us get some testimony from our friends in the branch as to when they plan on implementing, because if they say it is absolutely impossible that we would need that much time, they are smoking something that is illegal.
Now, could I get an indication perhaps, Mr Chairman -- even from Mr Morrow, who is the whip -- as to whether or not they would be agreeable to a 6 o'clock adjournment tonight. I am willing to stay here until 6 o'clock. I will defer to him just for a moment to see whether they are agreeable to a 6 o'clock adjournment.
The Chair: Mr Fletcher.
Mr Fletcher: Thank you, Mr Chair. Just a little response. As far as --
Mr Sorbara: Well, a point of order, Mr Chairman. A point of order --
Mr Fletcher: I am just responding to your --
Mr Sorbara: I deferred to Mr Morrow to find out whether we could get a 6 o'clock adjournment.
The Chair: Mr Morrow, if you would like to address Mr Sorbara.
Mr Morrow: At this point, Mr Fletcher just exactly said what I was going to say. I do not know. I would obviously have to talk to my caucus on that matter.
Mr Sorbara: Mr Chairman, I would move adjournment of the committee and ask for a 20-minute bell.
The Chair: I do not believe that division bells are required for an adjournment.
Mr Sorbara: A 20-minute bell. It is called a 20-minute bell. We will have the vote in 20 minutes.
Clerk of the Committee: The motion is asking for 20 minutes to bring his members in for a vote.
The Chair: Your members are in for the vote, sir.
Clerk of the Committee: That is irrelevant.
Mr Sorbara: It does not matter; 20 minutes.
The Chair: Thank you, 20 minutes.
The committee recessed at 1657.
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The Chair: We call division on the motion to adjourn, Mr Sorbara's motion. All in favour of Mr Sorbara's motion? Opposed? Motion is defeated.
Mr Morrow: A point of order: The three whips from all three parties have talked and we do agree that this amendment is very important to the children and the wives of Ontario. Therefore, I would ask that we stand down amendments 24 through 29, and I would also suggest that we deal with amendments 30, 38, 40 and 42 and move to a 6 o'clock adjournment.
Mr Sorbara: Mr Chairman, just to put in my two cents' worth on that. Are you done then, Mark?
Mr Morrow: I was just going to say, Greg, that we also have an agreement with that. Mrs Cunningham was not there and Mr Sorbara and I discussed this. Is that fair?
The Chair: So you are wishing to --
Mr Morrow: We are wishing to deal with 30, 38, 40 and 42 and move to a 6 o'clock adjournment.
Mr Sorbara: Or before, if we have dealt with those amendments.
The Chair: What if those amendments have not been dealt with by 6 o'clock?
Mr Morrow: They will be dealt with by 6 o'clock.
Mr Sorbara: Can I just be helpful in the clarification, if I can, because this is very important to the work of the clerk. As I understand it, what is currently --
The Chair: Could we have a clarification from the clerk on that issue?
Clerk of the Committee: I have a clarification. You have asked for amendments 30, 38, 40 and 42, but for amendment 30 there is a Liberal and a PC amendment to the amendment. Are we not considering those when we consider --
Mr Sorbara: That is to number 30. Mark, let's not do number 30 then. It is just there is a technical matter and it is too confusing. Agreed?
Mr Morrow: I am agreed on that.
Mr Sorbara: If I understand the clerk correctly, what is before us right now is number 26, is that right?
Mr Morrow: We are standing that down.
Mr Wessenger: Twenty-four, 25 to 29 actually.
Mr Sorbara: No, we have only moved one. We have moved one and then we have moved an amendment to the amendment. Is that not right?
Clerk of the Committee: What is on the floor right now is the amendment to the amendment on page 26. That is technically what is on the floor, although we had a wide-ranging discussion and we allowed discussion on the motion.
Mr Sorbara: So we propose by unanimous consent to stand down the amendment to the amendment on page 26 and the amendment on pages 24 and 25.
The Chair: We did not have unanimous consent.
Clerk of the Committee: We are asking for it.
Mr Sorbara: I am just putting this forward. And that we then proceed directly to amendments on pages -- Mark will read them out.
Mr Morrow: I will read them out if I can find them in here. Okay, so we are moving directly to amendments 38, 40, and 42.
Mr Sorbara: And we will do that by unanimous consent.
Mr Morrow: Yes.
Mr Sorbara: And we will be finished well before 6 o'clock, like in about two and a half minutes.
Mr Morrow: Thank you very much, Mr Sorbara.
The Chair: Mr Carr, go ahead.
Mr Carr: Unfortunately I have to ask it here because -- is this with regard to 32?
Mr Morrow: I understand that we are coming back to that.
The Chair: Are we coming back to that this evening?
Mr Sorbara: No, we will cover all that other stuff next time we sit and consider this bill. We are just doing these few little things and then we will be back.
The Chair: Okay. So we are now on the government motion 38.
Mr Wessenger moves that subsection 3i(1) of the act, as set out in section 3 of the bill, as printed, except the clauses, be struck out and the following substituted:
"(1) A payor, on motion in the court that made the support deduction order, or in the appropriate court on a motion under subsection 3k(6)."
Motion agreed to.
Mr Wessenger: I move that subsection 3j(3) of the act as set out in section 3 of the bill as printed be struck out and the following substituted --
Mr Sorbara: The amendment is "by striking out." You have changed it?
Mr Wessenger: We have changed it. We are changing it -- maybe I should not interrupt.
The Chair: Perhaps, given the fact that it has not been struck out, we are talking about something which the members are only hearing verbally now. I should read it thoroughly. I do not think it is a major change, though.
Mr Wessenger: This is to comply with the previous change we made about the seventh day to the fifth day.
Mr Sorbara: Just read it as you have it there and as you want it.
Mr Wessenger: "(3) The request shall be deemed to have been served on the payor on the fifth day following mailing, excluding Saturdays, Sundays and holidays, unless the contrary is shown."
Motion agreed to.
The Chair: Mr Wessenger moves that subsection 3k(4) of the act, as set out in section 3 of the bill, as printed, be struck out and the following substituted:
"(4) A notice given by mail shall be deemed to have been served on the payor on the fifth day following mailing, excluding Saturdays, Sundays and holidays, unless the contrary is shown."
Mr Elston: I know you do not want to have too much discussion, but can I just ask, because I was not here for the discussion of the first time you did the amendment in the previous section of the bill, what is acceptable to show "contrary"? If I show up as an employer, for instance, do I just say I did not get it and that is enough?
Mr Wessenger: I assume that the court accepts it, normally.
Mr Elston: It is a pretty tough one, though, in a way. The guy has to show up and say, "You've served me with this notice, you say, but I never got it, and so how can you attach my bank account," I guess is what happens, is that it?
Mr Wessenger: Yes.
Mr Elston: Is this one of those situations where the director is to be flexible again? It seems rather silly to have to have a person going into court to dispute the delivery of some mail, particularly where it is not tracked by registration. I can understand practically why costs would be prohibitive in that situation, but it is not unusual to have people not getting mail delivered in a --
Mr Wessenger: Yes. With a co-operative income source the director is certainly not going to --
Mr Elston: She is certainly supposed to be reasonable, but she is limited to being practical, right?
Motion agreed to.
The Chair: We stand adjourned until 10:30 tomorrow morning.
Mr Sorbara: What are we doing?
The Chair: We are doing victims of crime.
The committee adjourned at 1726.