The House met at 10 o’clock, a.m.

Prayers.

Mr. Speaker: Statements by the ministry.

HOME BUYER GRANT

Hon. A. K. Meen (Minister of Revenue): Mr. Speaker, with regard to the Ontario home buyer’s grant, in the past week there has been considerable comment expressing concern that non-residents of Canada may move directly into Ontario and, if they have not owned a home previously, qualify for grants up to $1,500. Special attention has been drawn to communities on the border between Ontario and the United States and the suggestion has been made that many Americans see this grant as a windfall and are therefore flocking across the border to buy homes in Ontario from which they will commute daily to the US for employment.

This simply is not the case. My staff have contacted all land registry offices at major border points and have found no indication that this is occurring. I might add that of the 5,000 applicants we have approved to date, none has been a non-resident.

There are very good reasons why non-residents would not be attracted by this legislation. One thousand dollars now and two $250 cheques over the next two years are hardly sound inducements to involve oneself in two taxing jurisdictions. More practically, any non-resident buying land in Ontario who does not take out landed immigrant status or otherwise qualify for an exemption under the Land Transfer Tax Act, 1974, must pay a tax equal to 20 per cent of the purchase price of the property.

For example, Mr. Speaker, a non-resident who bought a $40,000 home in Ontario would have to pay an additional $8,000 in land transfer tax at the non-resident rate.

Hon. A. Grossman (Provincial Secretary for Resources Development): There’s a great bargain.

Hon. Mr. Meen: The home buyers grant was designed, along with other budget measures, to provide an immediate stimulus to Ontario’s economy. I believe that the Act is doing just that and that the fear of any invasion by non-residents to take advantage of the Ontario Home Buyers Grant Act is unfounded.

Hon. S. B. Handleman (Minister of Consumer and Commercial Relations): They pushed the panic button too soon.

Mr. Speaker: Oral questions. The hon. member for Kitchener.

SENIOR CITIZENS’ PRIVILEGE PASSES

Mr. J. R. Breithaupt (Kitchener): A question of the Provincial Secretary for Social Development, Mr. Speaker, with respect to what are apparently some comments in a discarded speech of the Premier (Mr. Davis) that was to be made at Brampton, concerning new senior citizens’ privilege passes: Can the minister advise if these passes are a duplication of the ones which the federal government is also issuing as identification and useful items for senior citizens, or what is the purpose that these additional sets of passes are to have for the senior citizens of the province?

Hon. M. Birch (Provincial Secretary for Social Development): Mr. Speaker, it is my information that it is under consideration. Of course, there would be no duplication because it would be outlining the facilities that are available through the provincial government here in Ontario for senior citizens.

Mr. Breithaupt: This pass would include some sort of a folder or other information that would give them telephone numbers to call or various other sources of information? Is that the intention?

Hon. Mrs. Birch: As well as free access to provincial parks and other institutions within the Province of Ontario.

Mr. B. Newman (Windsor-Walkerville): Supplementary, Mr. Speaker: Could the minister advise whether the pass will include provision for the individual’s old age security number, social insurance number and hospital number, so that that senior citizen could have all of that necessary information on just the one card?

Hon. Mrs. Birch: That sounds like a very excellent suggestion, but as I pointed out, it is under consideration within the Ministry of Community and Social Services at the moment.

Mr. F. Laughren (Nickel Belt): We have heard those promises before.

PORTRAYAL OF VIOLENCE BY COMMUNICATIONS INDUSTRY

Mr. Breithaupt: I have a further question of the Provincial Secretary for Social Development. Does the secretary have any comment to make with respect to the article written by Mr. Pierre Benoit in the Ottawa Evening Journal --

Mr. J. E. Stokes (Thunder Bay): That’s quite a good one.

Mr. Breithaupt: -- concerning the matter of violence and leadership, in which he states:

“At the same time, it must be said that the Premier, more than any other politician in this province, has an obligation, if he is going to talk about getting at the root of some of today’s social ills, to do something more than posture about it.”

Can the minister advise if there are to be any particular statements that are going to go into details as to resolving the kinds of concerns Mr. Benoit appears to have?

Mr. V. M. Singer (Downsview): Did he say that?

Hon. Mrs. Birch: Mr. Speaker, I might respectfully suggest that the hon. member direct those questions to the Premier himself when he is in the House.

Mr. J. F. Foulds (Port Arthur): He is never in the House.

Hon. Mr. Grossman: Where is the NDP leader?

Mr. Foulds: Probably having breakfast with the Premier.

ONTARIO HOUSING CORP.

Mr. Breithaupt: A question of the Minister of Housing: Is the Minister of Housing aware of comments made by Ald. Robert Callaghan in Brampton that he considers the Ontario Housing Corp. is speculating in homes and that the OHC should be subject to the land speculation tax? Can the minister advise if the developments in Brampton, where price changes are apparently rapidly going on because of the growth of the community, are being investigated by his ministry?

Hon. Mr. Grossman: Very good. We will take ourselves some tax.

Hon. Mr. Handleman: The government tax itself? That will be a silly day.

Hon. D. R. Irvine (Minister of Housing): Mr. Speaker, I am not aware of the specifics to which the hon. member has referred, but I don’t know where we are speculating. What we are doing in home developments, as members know, is leasing the land for five years in order that no particular person may gain by the escalation in home prices. In the past, there was an opportunity for a person to purchase the land directly and resell within a year or two. As it is now, they have to lease the land for five years and then they have to pay the market value of the land. So I don’t really believe that anyone is gaining whatsoever in this deal, and certainly we are protecting the people of the province by having the land leased for the first five years.

Mr. Speaker: The member for Sandwich-Riverside.

AEROSOL PROPELLANTS

Mr. F. A. Burr (Sandwich-Riverside): Mr. Speaker, I have a question of the Minister of the Environment regarding the decision reported yesterday in the Globe and Mail by the Johnson wax people of the United States to stop immediately the use of fluorocarbons in their aerosol products, and their decision to use alternative and cheaper propellants such as carbon dioxide.

Inasmuch as there is now no excuse for any aerosol manufacturer to continue the use of fluorocarbons, will the minister press for the immediate elimination of their further use in Ontario at least?

Hon. W. Newman (Minister of the Environment): Mr. Speaker, I did talk about this the other day in here. I said the use of fluorocarbons and other propellants in aerosol cans is really a universal problem, as the member is aware. I noticed that the company has said it will no longer use fluorocarbons but would use a cheaper method of propellants. I think that is a very commendable gesture on the company’s part but I would like to know what propellants it is going to use and what effect they might have.

Certainly, at this point in time, within the ministry we are constantly in touch with the US Environmental Protection Agency which is doing massive tests this year on the effects on the upper atmosphere of fluorocarbons and other propellants and how they can affect the ozone layer. Environment Canada is also doing considerable testing this summer and we want to await the results of these tests before we make any move in the Province of Ontario.

To make a move in the Province of Ontario would be a very small portion of a total universal problem and we would like to see the results of these tests which I assume they are doing this summer and will be available this fall.

Mr. Burr: Mr. Speaker, inasmuch as the fluorocarbons have been pointed to by almost every scientist, except those employed by the vested interests, as being potentially lethal to the planet, why not declare a moratorium, at least in Ontario, and perhaps this would have a domino effect on other jurisdictions?

Hon. W. Newman: Mr. Speaker, there have certainly been conflicting reports among the various scientists; one always does get that when one has scientists working on these situations. I think that is one of the main reasons the extensive testing is going on this year. I’m going to wait until we get some firm results from the tests being done by the EPA and Environment Canada.

Mr. Speaker: Are there any further questions?

BICYCLE LICENSING

Mr. Burr: Mr. Speaker, I have a question of the Minister of Intergovernmental Affairs --

Mr. R. F. Ruston (Essex-Kent): The Treasurer.

Mr. Burr: -- otherwise known as the Treasurer.

Mr. M. Gaunt (Huron-Bruce): The minister is engaged this morning.

Mr. Ruston: Get the member for Oshawa (Mr. McIlveen) out of the minister’s hair.

Mr. Burr: It is regarding bicycle licences. Is the minister giving favourable consideration to the request of the Windsor city council that there be provincial legislation governing the licensing of bicycles as the best means of combating the theft of bicycles which is now difficult to prevent because of the lack of uniform legislation in neighbouring communities?

Hon. W. D. McKeough (Treasurer and Minister of Intergovernmental Affairs): Mr. Speaker, that resolution, as I recall, was referred to my colleague, the Minister of Transportation and Communications (Mr. Rhodes), for his comments and views.

An hon. member: Where has he been?

Hon. Mr. McKeough: I don’t know that we’ve heard back from him as yet. The answer to your question, am I giving it consideration, is no, not at the moment but it’s an interesting thought.

Mr. Ruston: Watch out, the minister doesn’t have a hold on it.

Mr. Stokes: The Minister of Transportation and Communications is still starry-eyed. He was on the radio this morning.

Mr. Burr: I might ask the Minister of Transportation and Communications: Has he had any communications from the provincial Treasurer on this subject? Is he considering this transportation question?

Hon. J. R. Rhodes (Minister of Transportation and Communications): Mr. Speaker, I didn’t hear the original question. I was not for a moment questioning that the Treasurer had not contacted me; I’m sure he has. I missed the original question. Was it mopeds or bicycles?

Mr. Burr: Just plain, ordinary, archaic bicycles.

Mr. Ruston: Foot bikes.

Hon. Mr. Rhodes: Yes, I’ve had contact with the Treasurer on that subject and, quite frankly, we are not considering anything.

Mr. Foulds: They are really backpedalling on this one.

Hon. Mr. Rhodes: Seriously, Mr. Speaker, we have made contact. Our opinion has been asked on it and we’re not overly enthralled about the licensing of bicycles per se. There is capability within the municipality to license but we recognize that the fee is quite low. I think it is only permitted up to $1; that is the maximum. I can’t comment on the backpedalling comment that was made by one of the member’s colleagues, because the expertise is all on that side of the House.

Mr. Burr: Supplementary: The question is not primarily the amount of the licence but it’s a fact that if one municipality has licences on bicycles and the next hasn’t then the problem of theft is almost impossible to combat.

Mr. Stokes: For purposes of registration.

Hon. Mr. Rhodes: Quite frankly, I’m sure the hon. member knows from his experience in the past in other jurisdictions that the licensing of bicycles is a very difficult situation and we feel that there is every reason to leave that at the municipal level. That’s our immediate reaction to the request. We’ll discuss it. Perhaps it does have some application on a province-wide basis, but goodness, some of these things have to be left, I think, to the municipal level. Surely there is something in the world we don’t have to put a licence on?

Mr. Speaker: Any further questions?

COMMUNITY SERVICE SENTENCING

Mr. Burr: I have several questions but the ministers aren’t here. I’ll ask one more of the Provincial Secretary for Justice regarding community service sentencing for certain kinds of offenders in place of prison terms. Has the minister had time to plan how to further this type of sentencing, both as a means of reducing the prison population and, perhaps more important, of rehabilitating the offenders.

Hon. J. T. Clement (Provincial Secretary for Justice): Yes, Mr. Speaker, as the hon. member probably knows, this has been tried in certain jurisdictions in western Canada, not for an extended period of time, but in the short time that it has been in effect it would seem to be very positive in nature for a number of reasons, particularly when restitution is involved and the prisoner attains employment at the community level.

We have discussed it for the past three or four weeks, and as recently as yesterday the secretariat had produced a paper on it. I have that paper, but I have not read it. It is in my office. I had it presented to me yesterday morning by the deputy minister and we intend to explore this matter to see if it, in fact, has a positive role in this province. I should add that certain people connected with the courts, namely provincial court judges and probation case workers in the Kitchener and Ottawa areas, have indicated a tremendous interest in this type of programme and we are interested in it too. I think we may move in that direction.

Mr. Speaker: The member for Grey-Bruce.

ONTARIO LOTTERY

Mr. E. Sargent (Grey-Bruce): Mr. Speaker, in view of the fact the Minister of Culture and Recreation (Mr. Welch) doesn’t touch base as much as he probably should, considering the salary he receives, I’ll ask this question of the chief law officer of the province. If the Ontario lottery laws were to be operated under the restrictions imposed on business, the present lotteries here are verging on fraud. In view of the fact that less than 50 per cent of the prizes offered are being redeemed -- only $500,000 has been paid out and $1.4 million was offered -- the odds against winning are completely unfair, in that the tickets --

Mr. Speaker: Is there a question?

Mr. Sargent: Yes, there is, Mr. Speaker, but it’s a very involved thing to get through to the minister --

Mr. P. J. Yakabuski (Renfrew South): It’s pretty successful. The people love it.

Mr. Sargent: It is completely unfair, in that the unsold tickets -- over half a million of them last week -- are put back into the computer and the people are competing against unsold tickets. The control of the unsold tickets --

Mr. Speaker: Order, please. I think it’s time you asked the question.

Mr. Sargent: I have to have a preamble here, sir.

Mr. Speaker: It seems to me it is the same question that was asked the other day. But if the member wants to ask it, go on.

Mr. Sargent: Okay, I’ll go along with that, but the minister is not here to provide the information. So I want to suggest to you, sir, that we’re getting close to something that could be called fraud being perpetrated on the public of Ontario.

Mr. G. Nixon (Dovercourt): Come on, he should stop kidding himself.

Mr. Yakabuski: Come on.

Mr. Sargent: The facts are here if they want to hear them.

Mr. Speaker: Order, please. Will the member --

Mr. Sargent: They’re yakking away and they don’t know what they are talking about.

Mr. Speaker: Order, please. Will the member ask a question now?

Mr. Sargent: All right; will the minister look into this whole situation, because it’s a bad situation? It’s a very shabby operation.

Mr. Speaker: Order, please.

Hon. Mr. Clement: Mr. Speaker, I will direct my colleague, the Minister of Culture and Recreation, to look into the matter of the odds or the unusually high odds against the participant, as I understand the observations of the member for Grey-Bruce. Insofar as any allegation of fraud is concerned, if he is alleging that there is being a criminal fraud practised on anybody --

Mr. Sargent: I don’t mean that. The framework is wrong.

Hon. Mr. Clement: The member is talking in terms of statistics --

Mr. D. M. Deacon (York Centre): Yes, we are.

Hon. Mr. Clement: -- as opposed to a criminal act. I would say that it would be the responsibility of my colleague. If he has any feeling that there has been a criminal fraud practised, then I must take notice of it and have an investigation, and I would ask him for particulars of the fraud. Perhaps in the interest of expediency we could talk about this at the conclusion of the question period.

Mr. Sargent: Supplementary, Mr. Speaker: I am concerned at the fact that figures this morning show there are still --

Mr. Speaker: Order, please. We are debating the matter now -- is there a question?

Mr. Sargent: -- in view of the fact that there are 1,980 tickets still kicking around and the fact that there is still $100,000 worth of tickets out in the hands of distributors who, knowing the series number, could well give these to friends to turn them in --

Mr. Speaker: Order, please. Will the member get to the question?

Mr. Sargent: So, would the minister look into this matter?

Mr. Ruston: Good point.

Hon. Mr. Clement: Mr. Speaker, I would just say this; as I understand it, the tickets are paid for before they are delivered. If a distributor had 1,900 tickets and had paid for them, presumably he would be entitled to the prize.

Mr. Sargent: I don’t understand that this morning; I don’t understand that. My information is that this is not so.

Mr. Speaker: The member for Sudbury.

FUNDING OF HIGHWAY PROJECTS

Mr. M. C. Germa (Sudbury): Mr. Speaker, a question of the Minister of Transportation and Communications: Now that he has decided to pick up 100 per cent of the cost of that part of Highway 17 known as the Queensway in Ottawa, does he realize that we have a Kingsway in Sudbury, which is also part of Highway 17, and which he has not seen fit to fund at the same rate? Is this a matter of straight sex discrimination or can the minister otherwise justify why the citizens of Ottawa should be relieved of this expense, whereas the residents of other cities also on Highway 17 do not receive the same favouritism?

Mr. Laughren: Change the name.

Hon. Mr. Rhodes: Mr. Speaker, no one is receiving any favouritism at all and certainly there was no sexist implication in the selection of a Queensway over a Kingsway.

An hon. member: Call it personway.

Hon. Mr. Rhodes: We would certainly look into that, though, and perhaps see if that was part of the criteria. Quite frankly, rather than take the time of the House to explain the new formula or the new approach we have taken, I would like to send the hon. member the information we have put together as it determines a controlled-access urban freeway. This was the main factor concerned as to whether or not we would pick up costs for maintenance or not. I’ll send that to him and not take the time of the House at this time; then, if he wishes further questions, I would be pleased to respond.

Mr. Germa: Supplementary, Mr. Speaker: Is the minister saying that he is now picking up 100 per cent of the costs of all controlled-access highways? Is that what he is saying?

Hon. Mr. Rhodes: No, Mr. Speaker, that is not what I am saying. If the hon. members wish me to go through a detailed explanation of the new process I will be happy to do so -- and it will take care of the question period for today and Monday.

But what I would rather do is simply say to him we are not picking up 100 per cent of the costs in all controlled-access highways. We are talking now about what we have defined as an urban expressway. I would like to send the information to him and if he has further questions at that time, either here or privately, I would be pleased to answer them for him.

Mr. Speaker: The hon. member for Downsview.

KRAUSS-MAFFEI SYSTEM

Mr. Singer: Mr. Speaker, I have a question of the Minister of Transportation and Communications. In view of the fact that he promised some time ago that he would advise us as to the total throw-away cost of Krauss-Maffei, and in view of the fact that he has not yet given us the information, is it reasonable to expect that he is going to tell us how much the disastrous experiment in Krauss-Maffei has cost the taxpayers of Ontario?

Hon. Mr. Rhodes: Mr. Speaker, first of all, yes, I have said that I would provide those figures, and I will do so. I will also say that there are no throw-away costs whatsoever.

Mr. Singer: Oh, no, no.

Hon. Mr. Rhodes: I hate to disillusion the member, but he has been chomping on this now for a long time -- and all he is going to have is black feathers around him when I put the figures on the table.

Mr. Singer: By way of supplementary: Would the minister not agree that when we have spent something in the neighbourhood of $50 million on magnetic levitation, which we haven’t got, that really it is a throw-away cost?

Hon. Mr. Rhodes: Mr. Speaker, the member’s figures are totally inaccurate.

Mr. Singer: I have asked the minister for figures. He doesn’t produce them.

Hon. Mr. Rhodes: I have said to the member, and I have made a statement in this House -- as late as in my estimates -- that these figures will be tabled in this House.

Mr. Sargent: The minister is stickhandling again.

Hon. Mr. Rhodes: They will be here.

Mr. Singer: Sure. It is a throw-away.

Hon. Mr. Rhodes: It’s not a throw-away at all.

Mr. Speaker: The member for Yorkview.

DUMP TRUCK OPERATORS’ AGREEMENTS

Mr. F. Young (Yorkview): Mr. Speaker, I have a question of the popular minister this morning, the Minister of Transportation and Communications. I wonder if the minister could provide an answer to the question I raised in the estimates some time ago about the charge, which was made at certain contractors’ meetings in Ontario, of demanding as a condition of employment from truckers that they sign an agreement which said those trucks for the employer and could be penalized if they couldn’t provide them, while at the same time the employer did not guarantee any employment whatsoever to the truckers?

Hon. Mr. Rhodes: Yes, Mr. Speaker, the member did raise that matter with me in estimates. He was kind enough to provide me with a copy of the particular contract he referred to, or the wording of it. I have asked my legal people to look at that contract and to give me their opinion of it, I have some of that information. I had intended to forward it to the member for his consideration but if he would rather I brought it here to this House, I can do that.

Mr. Speaker: The member for Huron-Bruce.

HOME BUYER GRANT

Mr. Gaunt: Mr. Speaker, I have a question of the Minister of Revenue following his statement. If the minister really feels the home buyer grant is no incentive to non-residents to come over here and buy homes, why is the programme being advertised in the Detroit papers?

Hon. Mr. Meen: Mr. Speaker, I have no personal knowledge of the advertisement in the Detroit papers. Some people must be thinking they can con some Americans -- and these are real estate people I suppose -- into coming over and buying and perhaps not bothering to tell them about our 20 per cent non-resident tax --

Interjection by an hon. member.

Hon. Mr. Rhodes: Look at the pot calling the kettle black.

Hon. Mr. Meen: -- which is such an obvious disincentive.

Hon. Mr. Handleman: It would come under Bill 55 if they advertised in Ontario.

Mr. Speaker: A supplementary, the member for Welland South.

Mr. R. Haggerty (Welland South): I would like to direct a question to the minister. In his statement this morning, he mentioned the 20 per cent land tax; I quite agree, it is there now and it applies but in my particular instance, the reason I moved the amendment of the bill --

Hon. Mr. Meen: Would the member speak up, please? I can’t hear him.

Mr. Haggerty: In the minister’s statement this morning concerning my amendment to the first-time home buyers programme in Ontario, I moved the amendment to curtail it by saying one must be a resident of Ontario for at least 12 months. Under the Ontario Health Insurance Programme, there is a stipulation that one has to have residence in Ontario for three or four months -- I think it is three months. The point is, the minister mentioned the 20 per cent land tax; the land tax may well mean there is a sizable income coming to the Province of Ontario but is he aware that when land is purchased in the town of Fort Erie -- I’m talking about a lot -- the $1,200 to $1,500 provided through the first-time home buyers’ programme will offset that land tax? is the minister aware of that? is he aware also that because of the over-generosity of the federal government, any American, a particular American, can come into the community, a border town --

Mr. Laughren: Is the member attacking the federal government?

Mr. Haggerty: -- buy land and as long as he can show he has paid municipal taxes for 10 years, he can qualify for old age pension without contributing to it? These are the loopholes and I am suggesting they should be plugged.

Hon. Mr. Meen: Mr. Speaker, I have no idea of the second point the member mentions. It sounds to me as if it is strictly in the federal end of things. From the standpoint of purchasers, though, by non-residents if they are, in fact, non-residents they would have paid a 20 per cent non-resident tax. We have no record whatever, in the 5,250 applications approved to date, that any single one of those was a non-resident. I have no information whatsoever which would confirm what the member has been suggesting.

Mr. Haggerty: A supplementary, Mr. Speaker: May I ask one more question of the minister? Will the $55 million which was set aside in the budget be spent on the home buyers programme? If we only have 5,000 applications now, we’re not going to make it by the end of the year.

Hon. Mr. Meen: Mr. Speaker, the programme is under way, of course, but I expect it’s an exponential curve rather than a straight-line function between now and the end of the year.

Hon. Mr. Grossman: How about that one?

Mr. Deacon: We should put the money into increasing the availability of land.

Mr. Stokes: I’m all for that, I think.

Hon. Mr. Meen: The rate of grants will increase rather than decrease, and the function therefore will probably prove out fairly close to the estimate.

Interjections by hon. members.

Mr. B. Newman: Supplementary: Would the minister provide us with statistics showing how many American citizens have taken advantage of this programme by becoming landed immigrants?

Hon. Mr. Meen: Mr. Speaker, I cannot undertake to give that information because that is not one of the criteria. The fact of the matter is that the applicant is a resident. We do not have information as to whether they are American citizens or citizens of any other country of this world. If they have settled here and have become residents, then they have qualified; therefore, my statistical information on these grants would not include that information.

An hon. member: Racist.

Mr. Speaker: The member for Nickel Belt.

TRUCK LOAD COVERS

Mr. Laughren: I have a question of the Minister of Transportation and Communications.

Mr. Breithaupt: Another one.

Mr. Laughren: Am I correct in my assumption that regulations have been prepared but not proclaimed to govern the covering of loose loads on dump tracks in the Province of Ontario?

Hon. Mr. Rhodes: Mr. Speaker, that is correct. The regulations had been prepared. We had not brought the regulations forward until we had received the report from the dump truck industry. This was part of that inquiry. We have the recommendations. Dump trucks are primarily the off enders in this area. We asked that that be part of Mr. Rapoport’s report; we have that report, and he has made a recommendation.

As I said to one of the member’s colleagues earlier this week, I’ll be tabling that report in this House, along with some of the things we think we can implement immediately.

Mr. Sargent: It will be late July.

Hon. Mr. Rhodes: Mr. Speaker, it will not be late July; it will be early next week.

Mr. Speaker: The member for York Centre.

CAPITAL GRANTS FOR TRANSIT SYSTEMS

Mr. Deacon: The Minister of Transportation and Communications seems to be the one for questions this morning.

Hon. Mr. Rhodes: The Minister of Housing is absent.

Mr. Deacon: In view of statements made recently by treasurer Kearns and general manager Morley of the TTC that the extra cost of vehicles they purchase doesn’t matter because somebody else will pay for them, will the minister change the formula for making grants to these transit systems so that there is a fixed amount payable toward the capital cost, rather than a percentage of the eventual cost, in order that there will not be an incentive for these organizations to feel, because of a 75 per cent grant, that somebody else is paying for them?

Hon. Mr. Rhodes: Mr. Speaker, to apply a fixed cost, of course, would be to go back to the old formula that was in effect prior to the change of going to the 75 per cent and removing the ceilings on operating deficits.

Certainly there would be no difficulty at all to go to a fixed-cost basis. I think the hon. member should keep in mind -- and he is referring primarily to the acquisition of the 200 streetcars -- one of the problems there is that Metro in particular was prepared to pick up its share of the costs at the then quoted price. If we had a fixed price on that, with the inflation that has taken place and the increase in the cost of these vehicles, a tremendous extra burden would be placed upon the taxpayers in Metro alone. We think that by having this scale on a percentage basis, it allows the province, through its formula, to pick up a fair share of those increased costs.

I know what the hon. member has in mind -- I don’t disagree with his thoughts -- to provide an incentive to increase ridership on public transit. We discussed it in estimates. I think those factors can be taken into consideration once we have had the confirmation from the Hon. Mr. Marchand, which I understand is not too far off, as to what the federal government’s involvement will be in assisting in the funding of rolling stock for urban transit. Then I think we can sit down and work out some sort of an arrangement for the proper funding formula to get as much of that money as possible into the hands of the municipality.

Mr. Deacon: Supplementary: What I am asking the minister is, if he will work out an agreed amount to be made available for subsidy, and to leave it up to the purchasing agency to pay any overage, so that they have the responsibility for paying a full dollar for every extra dollar over and above that grant. In this way, there would not be the feeling on their part that for every 25 cents they spend they will get 75 cents from somebody else, and that there is really no pressure on them to be really sure the prices are kept in line.

Hon. Mr. Rhodes: Without repeating what I have said, I don’t totally disagree with what the hon. member is saying. I am concerned that if we had a fixed amount of dollars laid on, Metro and the TTC, in this particular case then the total increased price would have had to be picked up entirely by Metro for the acquisition of rolling stock that has been inflated in price through no fault of theirs at all, just inflation in general.

If we could work out something that is going to give more incentive to the operator, I would agree 100 per cent that they should get more incentive. That is one of the reasons we have been very careful in our dealings with the federal government on their 25 per cent involvement. We just do not agree that transit operators in this province should be given 100 per cent of the costs of rolling stock. In essence, that provides the municipality with disposable vehicles. We don’t agree with that and that’s one of the things we are looking at very carefully now to be sure there is some responsibility on the part of the operating agency to be involved financially to keep them interested in maintaining and improving their operation.

Mr. Speaker: The member for Thunder Bay.

MOBILE DENTAL SERVICES

Mr. Stokes: I have a question of the Minister of Health. Since the two railway dental cars that normally service northern Ontario are old and obsolete -- one of them has already been taken out of service -- and since we have communities in northern Ontario that haven’t had a dentist in five years, and since there are many communities not served by railway dental cars, will the minister undertake to do two things: First, to set up a system of mobile clinics that will be operated along the highways in the province in northern Ontario; and second, upgrade the railway dental cars so that everybody in the Province of Ontario will be able to avail themselves of dental service regardless of where they may live?

Hon. F. S. Miller (Minister of Health): Mr. Speaker, it is nice to get a question. I had been sulking here in the last 45 minutes while the Minister of Transportation and Communications was getting all the attention.

Mr. Stokes: Use his roads and his railroad to provide a dental service.

Hon. Mr. Miller: Really, on that basis the question should go to him.

Mr. Singer: The minister’s words aren’t very good nor are his actions.

Hon. Mr. Miller: In all sincerity, I have been considering the whole issue of mobile dental service over the past months. I don’t know whether I am going to find the moneys to expand the service. The member and I haven’t any basic disagreement upon the need; I accept the need. I am just trying to find some way within the budget to get money to expand the service either in total numbers or in some other way.

Mr. Stokes: A supplementary question: Does the minister not think it should be given top priority within your ministry and within the government inasmuch as we have grade 8 students who haven’t seen a dentist in their entire lifetime; and when they go to a dentist, after having travelled 250 to 300 miles, the dentist finds it necessary to put in partial plates?

Hon. Mr. Miller: Mr. Speaker, I think you could find that right in the middle of the city of Toronto too, sadly enough. I think fluoridation has helped a lot, although we have 80-odd per cent of the people of the province, I think, on treated water now who are on municipal supplies.

Mr. Laughren: Not in Gogama.

Mr. Stokes: When can we expect some action?

Hon. Mr. Miller: When can the member expect action? I am not going to give him a specific date. I am working on it. I agree it is a very important issue.

Mr. Speaker: A supplementary question, the member for Kitchener.

Mr. Breithaupt: I am wondering if the Minister of Health can advise us what the expected costs of this upgraded programme would be? Are there any rough figures in that area?

Hon. Mr. Miller: If I recall the figures, and the member for Thunder Bay may correct me, it is roughly $60,000 per year per car.

Mr. Laughren: Supplementary, Mr. Speaker: In view of the fact that not only are the dental care facilities lacking but also medical, would the minister undertake to launch a programme of nurse practitioners for the small communities in northern Ontario as well?

Hon. Mr. Miller: Mr. Speaker, we do have a fair amount of nurse practitioner programming going on. I don’t find the medical deficiencies half as grave, relatively speaking, as the dental ones. I think the shortage of dental personnel is more acute throughout the province in general. Steps have been taken by the province over the past few years to improve the supply of medical and paramedical personnel throughout the province. They have been more successful than most jurisdictions which have geographic problems. They are not totally successful but I am hopeful that within a year or so we will have enough graduates, who have already tied themselves to bursaries which require them to go to an area of need, to fill virtually all the presently unsatisfied areas.

Mr. Stokes: The $60,000 figure the minister quoted as one-twenty thousandth of the health budget. Doesn’t he think he could get on with it?

Mr. Speaker: The member for Windsor-Walkerville.

NEEBING-MCINTYRE INTERCEPTOR SEWER

Mr. B. Newman: Mr. Speaker, I have a question of the Minister of the Environment: Could the minister inform me whether the construction of the Neebing-McIntyre interceptor sewer, a project under the Canada-Ontario northwestern Ontario subsidiary agreement, has any provincial financial involvement?

Hon. W. Newman: Mr. Speaker, what was that project again? We have 425 going on and it is hard to remember them all.

Mr. B. Newman: The Neebing-McIntyre interceptor sewer.

Hon. W. Newman: Interceptor sewer? I would have to check to see if we are involved financially and I will let the member know.

Mr. B. Newman: May I ask the minister, while he looks into that to check and inform the House what the provincial government’s policy is toward the use of services and facilities of Canadian versus American contractors?

Hon. W. Newman: Maybe the member is talking about one of the DREE programmes. Is he talking about this contract up in northern Ontario? Did I not give him a note on that, pointing out that the contract was let by the municipality, not by this ministry? It’s a municipal project, I believe, the one he is talking about, because it is funded by DREE.

The policy in our own ministry is we accept the lowest tender but if there are specific problems or if we can give Ontario residents preferential treatment and there appears to be very little difference between contractors we will look at the whole thing and, perhaps on the basis of Ontario residence, try to give them a fair break. We had a situation this year with one of our contracts. Two people bid and they were very close and we gave it to the Canadian.

Mr. B. Newman: A supplementary, Mr. Speaker: Is the minister aware that, in the contract I mentioned under section (b), the tenders were $3,371,000 by a Windsor contractor and $3,346,000 by Ferrera-Resco Ltd., a US contractor? The difference was only some $25,000, much less than 10 per cent, yet it still went to an American concern.

Mr. Sargent: Shame.

Mr. Speaker: The member for Port Arthur.

TRANSPORT FOR HANDICAPPED PERSONS

Mr. Foulds: Thank you, Mr. Speaker. A question of the Minister of Transportation and Communications: Has the minister had an opportunity to reply to the brief of the handicapped action group, presented to the provincial cabinet on May 15, as it pertained to the funding of the Handivan for handicapped people in Thunder Bay?

Hon. Mr. Rhodes: No, Mr. Speaker, I have not responded directly to that particular brief. Answers to all of the briefs which came in from that meeting and which pertained to my ministry are being prepared and we will be getting them out as soon as we possibly can.

Mr. Foulds: A supplementary, Mr. Speaker: In view of the urgency of the situation -- the minister may recall that the grant which, I believe, was an LIP grant runs out on July 6 -- and in view of the letter I sent the minister last week, which may not have been drawn to his attention yet, could he give that top priority for consideration over the next week so that the people in the handicapped group could have some resolution of the problem before their financial deadline of July 6?

Hon. Mr. Rhodes: Mr. Speaker, I can’t give any guarantee this is going to happen because, with the Ministry of Community and Social Services, we are in the process of trying to develop a provincial-wide policy to provide transit for handicapped persons. This simply points out once again one of the fallacies and the weaknesses of that LIP programme which has been carried on. Funding has gone out, it is cut off and they leave people in a position of having a service so they naturally turn to -- who else? -- the municipality or the province, to carry on programmes which the federal government seeds yet it doesn’t have the intestinal fortitude to carry out or carry on.

Mr. Speaker: The member for Kitchener.

Interjections by hon. members.

Mr. Speaker: Order, please.

Mr. Foulds: A supplementary, Mr. Speaker.

Mr. J. R. Smith (Hamilton Mountain): Send helicopters down.

Interjection by an hon. member.

Mr. Foulds: Does the minister not think --

Mr. Ruston: The ministers have Cadillacs to take them to the Royal York.

Mr. Foulds: -- that it would be more useful to respond to the need of the handicapped people in the area, which has been proven through the LIP programme, rather than trying to play this kind of game of blaming the federal government for not continuing the funding?

Surely, the important thing is not where the funding comes from, but that these people who have found a productive role in our community because of the transit van, be assured of the continuance of that productivity in our community -- not only for their own benefit, but for the economy of the province.

Hon. Mr. Rhodes: Mr. Speaker, I completely agree. I simply I am saying that, surely to goodness, the responsibility for carrying on these programmes cannot continually be dumped back into the laps of the municipal government or the provincial government. We recognize that there has been an excellent job done in a number of municipalities to help transport the handicapped, and that they’ve had difficulty in getting funding. We hope that we can develop, and I think we can, a very reasonable and rational provincial policy that will apply right across this province, and will be a continuing programme -- not starting something that is worthwhile and then dropping it. Surely there is some responsibility there to get adequate funding into these programmes and to keep it up.

Mr. Foulds: Supplementary, Mr. Speaker.

Mr. Speaker: Order, please. The time has almost expired, and there are several people wishing to ask new questions; and it has become a debate now. The member for Kitchener.

GO TRANSIT

Mr. Breithaupt: A question, obviously, Mr. Speaker, of the Minister of Transportation and Communications. With respect to the extension of the GO Transit system to Georgetown and the use of buses to fill in from various areas there, can the minister advise if he’s going to be making any statement in the House with respect to the use of the CPR line in the area? And is he making any plans or having any surveys done with respect to service to the town of Orangeville, which is a very rapidly growing community and which would require, if not this service, at least some widening of Highway 10?

Are there any programmes that the minister can announce or investigations which are going on with respect to the transportation for people in that particular corridor?

Hon. Mr. Rhodes: Mr. Speaker, I can’t give any details on that particular fact, as these are studies that are carried out by the Toronto Area Transportation Operating Authority in conjunction with the municipalities that would be involved. We are looking at the extension of the service, as has already been announced, through to Streetsville and Milton.

Mr. Sargent: Including Owen Sound?

Hon. Mr. Rhodes: We hope to get some CP tracks used in that area and bus service that will feed into that particular line. As far as the Orangeville area is concerned, I cannot give the member an answer. I’ll try and find out and let the member know.

Mr. Speaker: The member for Windsor West.

MOPEDS

Mr. E. J. Bounsall (Windsor West): Another question of the Minister of Transportation and Communications, Mr. Speaker: Since the minister has defined mopeds, or those vehicles which fall into the moped classification, by and large, as bicycles, has the minister had conversations or made arrangements with the Ministry of Natural Resources regarding the entry of mopeds into provincial parks without requiring a vehicle permit? And, further, has the minister had any contact at all with the federal parks to ensure that these mopeds, which he classifies as bicycles, are not vehicles in terms of requiring a vehicle permit for park entry?

Hon. Mr. Rhodes: No, Mr. Speaker, I have not had any discussion with either the Ministry of Natural Resources or the federal parks people. I suppose if a problem arises they will let me know. I’m hoping to resolve that problem in the very near future by making them vehicles.

Mr. Bounsall: Supplementary, Mr. Speaker: Is the minister not aware that, at least for federal parks, they have classified the mopeds, those that are legitimately mopeds as well as being vehicles, and therefore are requiring the 14- and 15-year-olds who are riding them into the parks to obtain a vehicle permit?

Mr. Sargent: The minister should buy 26 of them for the cabinet.

Hon. Mr. Rhodes: No, Mr. Speaker, I was not aware that this was happening. This is the first time it’s been brought to my attention.

Hon. Mr. Grossman: The mopes are on that side.

Mr. Laughren: Does the Provincial Secretary for Resources Development feel he is a moped in a world of Harley-Davidsons?

Hon. Mr. Rhodes: There may be a problem in the classification of what is a vehicle within the National Parks Act; I don’t know. I’ll look into it and see what we can do.

Mr. Speaker: The member for Grey-Bruce.

OIL AND GAS DRILLING

Mr. Sargent: Mr. Speaker, a question of the Minister of the Environment. This morning the news said there are bills pending in New York and Ohio state legislatures to open Lake Erie for gas and oil drilling. I understand that Ontario has about 300 of these drilling rigs there for gas and oil now. They are going to request the minister’s help in blocking this legislation, but does the minister have any plans to do such drilling in Lake Huron and Georgian Bay?

Hon. W. Newman: Mr. Speaker, I think that question should be more properly directed to the Minister of Energy (Mr. Timbrell). As far as the environmental aspects of it are concerned, we are very much involved in any permits that would be going out in the Province of Ontario.

Mr. Sargent: A supplementary.

Mr. Speaker: One short supplementary.

Mr. Sargent: Are there any additional permits being issued? Secondly, does the minister have any plans to block such things in Lake Huron and Georgian Bay? Yes or no?

Hon. W. Newman: No.

Mr. Speaker: The member for Thunder Bay.

NATIONAL TRANSPORTATION POLICY

Mr. Stokes: I have a question of the Minister of Transportation and Communications. What does he think of Jean Marchand’s recent announcement on a transportation policy and how is it going to affect modes of transportation in the Province of Ontario?

Hon. Mr. Handleman: What policy?

Mr. Foulds: Answer in 25 seconds or less.

Hon. Mr. Rhodes: Mr. Speaker, I had an opportunity to discuss that particular statement prior to it being made. Also, I have had a chance to read it now that it has been made. I don’t think there is a policy there as yet. It’s a philosophy. Hopefully, it will be followed up by a policy in the near future, but the statement as I understand it does not really say too much other than at some time in the near future we’re going to get a train from Windsor to Quebec City.

Mr. Stokes: Supplementary: Is it true that the minister agrees with the recent announcement?

Hon. Mr. Rhodes: I can’t say I do. There is nothing there really to agree with. There were three parts in it which I thought were of interest and I said so at the time. Mr. Marchand has indicated that there will be a direct control or a direction from the federal cabinet over the CTC which I think has been a long time in coming and is required. Also, the federal government has given an indication that it wants to take a more aggressive position in the provision of transportation. I think that’s a good sign as well -- both of those things.

Mr. Stokes: Including freight rates?

Hon. Mr. Rhodes: Yes, if it makes them adjust their freight rates I will say amen to that as well, providing the adjustment is down.

Mr. Stokes: We sure need that.

Mr. Speaker: The oral question period expired a minute ago.

Interjections by hon. members.

Mr. Speaker: We’ll get to the member for Eglinton (Mr. Reilly) the first thing on Monday afternoon.

Petitions.

Presenting reports.

Motions.

Introduction of bills.

CITY OF HAMILTON ACT

Hon. Mr. McKeough moves first reading of bill intituled, An Act respecting the City of Hamilton.

Motion agreed to; first reading of the bill.

Hon. Mr. McKeough: Mr. Speaker, this bill empowers the city of Hamilton to guarantee a mortgage on a sports arena proposed for construction there. The guarantee is limited to the sum of $200,000 per year for a period of 10 years. The giving of this guarantee to the city of Hamilton will, of course, be subject to the normal Ontario Municipal Board approval procedures.

This Act is being initiated at the request of the city of Hamilton and the measures contained in it will make possible the creation of certain recreational facilities which have been badly needed in that city for some time. I think the members are aware that this might have been dealt with at the private bills committee but could not for procedural reasons and the government undertook to introduce a bill to make this facility possible.

Mr. Speaker: Before the orders of the day, I should reply to the discussion of last evening.

Before the adjournment, the member for Wentworth (Mr. Deans) raised the matter of the recording of the procedure of the social development committee while considering Bill 100, An Act respecting the Negotiation of Collective Agreements between School Boards and Teachers.

As there is no appeal from the decision of a committee to the Speaker, under ordinary circumstances I would not be in a position to consider this matter. I approached it from the standpoint that I was being asked to decide whether the House on Tuesday last gave permission to the committee to record its proceedings or directed the committee so to do.

As the member for Riverdale (Mr. Renwick) properly quoted on Tuesday evening, the report of the procedural affairs committee made on April 29, which was later adopted by the House, specifically stated: “The consent of the House must be given to have the deliberations of the committee recorded.” Furthermore, what was said in the House on Tuesday shortly before the adjournment recognized this fact.

The member for Riverdale said: “It is a special interest bill and we have consented to the recording.” To which I replied: “The House is giving permission, as I understand it, to record the proceedings of consideration of Bill 100.”

The government House leader expressed agreement with this. Furthermore, when raising this matter last evening, the member for Wentworth acknowledged that this was the case. He stated that permission had been given to the committee in advance so that it would not be necessary for it to return to the House to ask for this permission.

I, therefore, cannot see how this previous permission in any way removed from the committee the obligation to determine whether or not it desired such permission. The decision remains with the committee. Whether I agree or disagree with this decision is beside the point; the decision is for the committee to make, not for myself.

The member for Riverdale.

Mr. J. A. Renwick (Riverdale): If I may, on a point of order, accepting as I do the decision which you’ve made in connection with this matter, because of the ambiguity of the language which was set out in that report, I would, in whatever the proper procedure is and in view of the decision that was made, ask that the matter be referred back to the procedural affairs committee for clarification. Because it would appear from the reading of the section of the report of the procedural affairs committee that it foresaw the situation where the standing committee itself may decide that it wanted to record a bill and then it would have to come back to the House and get consent to do so.

In this event that particular procedure was not followed, and my only question is that the alternative procedure must be available. That is, that after a bill was read the second time and after it had been referred by the appropriate minister out to a standing committee of the assembly, it would then be in order for a member of the assembly to move that as such and such a bill was a bill of special interest, the standing committee be directed to record its proceedings.

It would appear to me that that is not contradictory to the present procedure which is being followed, or to your reading, but is an alternative method which I think we considered was included within the original report. Therefore, whatever the proper procedure is, and in the light of the discussion which has taken place, in the light of your ruling and in the light of the comments which I’ve made and perhaps others would wish to make, I would ask the matter go back again to the procedural affairs committee.

Mr. Speaker: I appreciate the lack of clarity in the original direction, but I had to interpret it as it is. I think the only way to deal with this properly is by a substantive motion to go back to the procedural affairs committee at a later date.

Mr. Foulds: Mr. Speaker, before the orders of the day, is it possible to make such a procedural motion now?

Mr. Speaker: If there is a substantive motion put on the notice paper with the House leader. That would have to be done, I believe.

Mr. Foulds: Mr. Speaker, as I understand it, this would just simply be a procedural motion, not a substantive motion.

Mr. Speaker: I am advised that it would require a substantive motion to appear on the order paper for debate later.

Mrs. M. Campbell (St. George): Mr. Speaker, I tried last night to address myself to this matter as a member of that procedural affairs committee but I was not able to do so. I want to point out that I see very little point in this going back to that committee. When we were in committee we were all disturbed about the question of reporting.

The member for Ontario (Mr. Dymond) advised the committee that it was always proper for the leader of either party to make a motion in the House and then, because we couldn’t find any mechanics for that procedure, we tried to provide for reporting of those bills which are of significant public concern. That was the reason why that was brought forward in the form in which it was.

When we come to this assembly, Mr. Speaker --

Mr. Speaker: Order, please. With respect, I have made the ruling and the ruling is in accordance with the --

Mrs. Campbell: You didn’t listen to the procedural affairs committee.

Mr. Speaker: The ruling was made in accordance with the present instructions as they appeared in our records. So I think there is no room for a debate at the present time.

Mr. Foulds: On a point of order.

Mr. Speaker: Orders of the day.

Mr. Foulds: No, Mr. Speaker --

Mr. Speaker: Is it a different point of order? If not, this matter is closed at the present time.

Mr. Foulds: I would ask you to seriously consider whether such a motion is a substantive motion or a procedural motion, as my understanding is that it would be simply a procedural motion governing a procedure of the House. Now, I bring to your attention the experience that we had last December --

Mr. Speaker: Order, please. We will take it up.

Mr. Foulds: I would just like to draw one precedent to your attention --

Mr. Speaker: I can’t rule any differently at the present time.

Orders of the day.

Clerk of the House: The seventh order, resuming the adjourned debate on the motion for second reading of Bill 75, An Act to reform certain Laws founded upon Marital or Family Relationships.

FAMILY LAW REFORM ACT (CONCLUDED)

Mr. Speaker: The member for Windsor West, I believe, has the floor.

Mr. E. J. Bounsall (Windsor West): Thank you, Mr. Speaker. The minister said in his opening remarks last night that we should appreciate that this bill is part of an ongoing process with respect to advances in this particular area. Well the rate of progress that advances in this area have taken would make a snail’s pace look like a rocket.

The bill was introduced last June; and while one could argue that it was introduced simply to have discussion around the province, after having been around for a year in the form of the bill of last June we have a bill which in essence changes about two words. In one year we get two words changed in a proposal and we are asked to think this is part of an ongoing process. We know then how committed this government is to the ongoing process of considering the property rights, the property divisions and the whole area of laws dealing with marital and family relationships. A couple of words in a year is about the rate at which the change is going to take place.

This bill is a barely perceptible nod in the direction of establishing some equality in matrimonial property rights and marital relationships as respects property. This is the same bill, in essence, that was introduced a year ago, even though the Attorney General (Mr. Clement) has had ample time to implement the Ontario Law Reform Commission’s proposals on matrimonial property rights and marital relationships.

This is a bill which in its major point of interest for the public -- and let’s make no mistake about what that major point of interest is; that is, how property will be divided upon the dissolution of a marriage, that is the major point of interest to the public -- in that major area, this bill takes only the smallest possible step in the direction of confronting that question or dealing with it in an equitable form. The mountain has laboured, if you like, for over a year and brought forth a barely alive, extremely tiny mouse in this respect.

The bill does nothing to recognize that marriage is an equal partnership and that upon a breakdown of that marriage, such as occurred in the Murdoch case and in many other instances across this country and across this province, the total value of the combined assets acquired since marriage should be divided equally between the spouses. It doesn’t do this at all. This is the equality that is required in a bill dealing with property division upon the dissolution of a marriage.

It fails completely to recognize that marriage is a partnership in which the husband and wife work together, and if one spouse’s contribution to that joint commitment of a marriage is in running the home, rearing the children, preparing the meals and doing the washing, if that is the sole contribution of the spouse, this bill, as I see it, says that counts for nothing whatsoever in terms of a property division in the unfortunate circumstance of that marriage breakdown.

I have absolutely no objection, Mr. Speaker, to subsections 1 and 2 of section 1 of this bill in which it is set out that during the marriage, the married woman and the married man have distinct legal personalities, separate and distinct from each other, and have legal rights and capacities as if they were unmarried. There is no objection there whatsoever.

One assumes something about a marital and a family relationship, and that assumption has always been that it’s a partnership and what we need in a bill in this area is to stress the equality of that partnership. This bill does nothing at all in this direction. This bill does nothing to ensure that upon the dissolution of that partnership, which should be equal even though they retain their separate legal rights and personalities during that partnership, there should be a joint division of the property which they have acquired separately during that marriage.

I had a private member’s bill, Mr. Speaker, which took the viewpoint of the Ontario Law Reform Commission in this area and this was essentially their viewpoint. In this bill, the minister has dealt only with the very narrow, circumscribed case of the Murdoch situation. The wife, in this case, contributed significantly -- in fact I think it could be argued almost equally -- to the particular farm enterprise which provided the income for that particular marriage.

He has chosen to deal only with that situation in which one spouse has become directly involved in the financial enterprise of the other. He has completely ignored the real marital relationships, the real family relationships, which exist during a marriage. He has said: “As long as we can prove by some accounting method that the one spouse has actually been involved in the business enterprise of the other and we count up that percentage, that’s how the division of any funds will be resolved.” There is nothing in this bill which recognizes that marriage is a partnership and all assets acquired separately by them during marriage should he divided equally upon the dissolution of that marriage.

In the private member’s bill I introduced, Mr. Speaker, there were a lot of other clauses dealing with some of the problems which might arise in that. Somebody mentioned this time a couple which should have been included in this bill if one had had the proper principle in this bill. That is that certain things which flow separately to them -- such as a gift or an inheritance -- would not be considered in a division upon dissolution but the income produced or the capital appreciation of that gift or inheritance could be and should be considered upon the division.

Mr. Speaker, if, in this bill one divided equally property acquired by both spouses during the marriage at the time of dissolution of that marriage, the matrimonial home would automatically be included in that property division. The minister has chosen not to make that property division.

One might have expected to see something about the matrimonial home in the bill but, of course, we don’t. There is absolutely no provision for the matrimonial home in the bill and in section 1(d) of the bill it is explicitly clear that only property taken in the names of both the husband and the wife as joint tenants, or money in the names of both on deposit in a bank, trust company or loan corporation, are considered to be held jointly. In those many instances where the matrimonial home is in the name of one spouse, section 1(d) of this bill makes it explicitly clear that it is the property of that one spouse. It has not recognized at all even the significance of the matrimonial home, if they’re not going to divide all the rest of the assets acquired since marriage equally, in a bill embodying that principle. In this bill the minister has not even recognized that the value of the matrimonial home should be divided equally amongst those spouses at the time of the dissolution of that marriage.

He has done quite the reverse, He’s made it explicitly clear in section 1(d) that only if it’s in both their names as joint tenants would there be a joint claim on that matrimonial home. He has done nothing to protect the one spouse whose name does not happen to appear on the joint ownership or joint tenancy of that matrimonial home.

In truth, Mr. Speaker, in the whole area of the matrimonial home, the bill could have gone and most certainly should have gone one step further as well to say that a husband or wife shall not dispose of a matrimonial home without the consent of the other, except where ordered by a court. The minister has not even put that provision in. We’ve still got the circumstance where, if the matrimonial home is in one person’s name, that matrimonial home can be sold by that person without any consultation whatsoever with the other spouse. With the lack of that provision in the bill, it almost boggles the mind that the bill should bear the name family relationships in the title, when by not including it the bill allows that sort of action to take place in this province. The bill is very seriously lacking in that respect by not having any provision to deal with the matrimonial home or a provision that would prevent the matrimonial home being sold by the one spouse in whose name that particular matrimonial home appears.

In fact, the bill goes even further as an affront to women, Mr. Speaker. Let’s not hide that fact at all. The bill further affronts women and their legal rights in this province by the section on domicile. By including section 2(2) in the bill, the minister has deliberately retained the rule that the domicile of the husband is the domicile of the marriage. He has written it in this bill so that there will be no mistake whatsoever in this area. One would have thought, having introduced a bill a year ago last June, and knowing for quite some months that 1975 was International Women’s Year, the minister in this particular year could have some provision in the bill that does not so blatantly affront the women in this province.

If he was at all interested in equality or had one ounce of sensitivity towards the feelings of women in this province and their legitimate and reasonable yearnings to attain equal treatment before the law, that section with respect to domicile should have read something of this nature, that neither the husband nor the wife has a higher claim in establishing the domicile of the marriage and they shall decide jointly where the family home shall be, rather than leaving it completely in the hands of the husband to decide where the domicile shall be, and that wherever he happens to be that is the domicile.

It completely continues the situation where, if for basis of employment, for example, in terms of the economic factors of any other factors, the woman has to live for part of the week or semi-permanently apart from the address at which her husband is living, then she can be legitimately said to have deserted, should such a situation arise, because the domicile of that family is purely and simply the domicile of the husband. That has been traditional and the minister has established that quite clearly again in this bill. How he can bring forth a bill that contains family relationships in the title and retain such an unfair Neanderthal position, and make no attempt to deal and define that position, strains the minister’s credibility with me, Mr. Speaker, in terms of him wanting to make any real advancements in this area at all, let alone the pace at which he is proceeding to take it.

The bill, in essence, takes a very narrow-minded view of property rights and property interests in this province.

The need for reform in this area was no doubt brought clearly into focus by the Murdoch case in Alberta. Most people in Canada were shocked when they were aware of the facts in that case. Even though Mrs. Murdoch had worked shoulder to shoulder in the business enterprise of that marriage -- in the running of the farm business -- no account was taken of the amount of labour that Mrs. Murdoch had provided. There is no question people were completely shocked by that.

If one looks at what marriage should be, what marriage is assumed to be on the basis of sharing, then the division should have been equal for all assets obtained since marriage, even if she had not worked shoulder to shoulder on that farm with her husband.

What the minister has chosen to do in this bill, as I see it, is to say it’s only that very narrow situation that we are covering.

I could take as an example one of my colleagues, the member for Sandwich-Riverside (Mr. Burr), who is down in the Ministry of the Environment committee estimates today. As a school teacher for many years, if his wife had totalled some examination marks for him while he went for a coffee, that is a contribution that could be considered should that marriage break up, in terms of a contribution by her to the marriage. But if she went and got him a coffee while he continued to total the examination papers, under the provisions of this Act that couldn’t be counted as a contribution that she made toward the marriage for a property division.

It’s quite clear that is the situation the minister is in; and it is not nearly good enough. So, in section 1(3), subsection c, it to me is quite clear that the work or money’s worth referred to in that section simply means the money or the work that the spouse contributed to the farm or business enterprise or salaried endeavour of the other spouse, and does not take into account at all any other contribution to the joint enterprise of marriage which those two spouses are engaged in.

As it is written, there will be no evaluation made whatsoever for any other work that one spouse -- and we will take the wife, for example -- has put out around the house so that the husband can earn his salary, can run the business -- whatever kind of enterprise he might be engaged in, including a farm. There is absolutely no valuation made for the efforts of, for example, the wife. All of those efforts, all of that contribution, has been valued in this bill to be absolutely zero -- absolutely zero. And that is the minister’s attitude toward the contribution women in this province make toward a marriage.

Unless it can be directly tied to the business which brings in the income into the house, such as the farm or the corner store, or the engineering firm or whatever it may be, or some contribution toward the normal work for which that person earns a salary, the minister is saying all of it counts absolutely for nothing upon a division of property and assets, should that particular marriage relationship dissolve.

In section 1(3) (c) there is another area which intrigues me; quite briefly, it says:

“Except as agreed between them, a husband or wife contributes work [etc.] in respect of the acquisition [etc.] of a property in which the other has had a property interest, [neither] shall ... be disentitled to any right to compensation -- ”

It is the use of the words “has or had” that intrigues me here, because it implies that property that had been owned, I suppose according to section 1(b), no doubt jointly, but now was sold, is to be considered in that property division. It isn’t just “has;” it’s property that had been owned.

If that is what the minister is intending, then surely we need a lot more clarification and amplification of that point in this particular bill. We can’t accomplish the whole concept that that implies simply by adding the two words “or had” to the word “has,” as it appears in this bill.

In England the legislation makes a special provision for the case where property was sold, and the courts have the right to look at the funds resulting from that sale and to consider the funds resulting from that sale in a division or to consider new properties obtained with the proceedings of the sale of other property. They spell it out rather clearly.

If it is the minister’s intention that property that had been owned -- and according to section 1(d), that property presumably would have had to have been owned jointly or held in joint tenancy --

Hon. J. T. Clement (Provincial Secretary for Justice): Pardon me. I would just like to clarify that, Mr. Speaker. That is not the criterion. Section 1(3)(c) acts independently. We’ll get into it later on in the debate, but I want to make it clear that it is not at all a condition that has to be jointly owned before section 1(3)(c) is applicable.

Mr. Bounsall: Well, obviously we are going to have quite a discussion at the committee stage of this bill. But let’s forget about whether it had to be owned jointly.

If it was the minister’s intention that property that had been owned should be considered in this division, it should have been spelled out much more clearly, because section 6 of the bill repeals all sections of the Married Women’s Property Act, except section 12 of that Act, which lays out the entire judicial procedure.

I am advised that the courts heretofore have always said that under section 12 of that Act they cannot deal with property that had been disposed of. This has always been their view relating to section 12 of the Married Women’s Property Act, and that section which we still retain, clearly puts the decisions in this entire area under the aegis of the judicial system in this province. They have always said they cannot deal with property that has been sold under section 12.

The minister has retained that section and presumably is using the two words “or had” to try to reverse the entire feeling and the entire history of section 12, as it has been dealt with by the judiciary in this province. There needs to be, as I see it, a great deal of amplification of section 1(3)(c) as to what the minister intends to do there in order to accomplish what it appears to me he is trying to do in this bill in terms of considering property that had been owned prior to the dissolution of that marriage. I don’t know how one accomplishes this.

Apart from needing it spelled out, it would seem to me that this would be an ideal situation, the ideal circumstances, for conducting training sessions of the judges -- I guess the judges involved would be in the divisional court of the Supreme Court, or the judges of the county court. There should be training sessions of those judges, with respect to what the minister’s intent is in this bill, with suggestions to them or discussions with them as to how the minister is going to follow through in determining moneys which have come in from the sale of property in the past and how one follows those moneys through. There should be some thorough discussions and training sessions with the judiciary on what the minister intends in this bill and how he can accomplish what he appears to be trying to accomplish by the addition of the two words “or had” in section 1(3)(c) of the bill.

This bill does do a few things, Mr. Speaker, and I suppose one could classify them as a small step forward. It allows one spouse to sue the other spouse, I gather, for physical damages should they get involved in a physical battle. I mentioned to one group of women I was addressing some time ago that, to me, this didn’t seem to be a useful provision and it seemed to be another handout to the lawyers in the Province of Ontario.

One of those women present said she would have thought it rather useful. Some months after the marriage had broken up she had received a broken nose from her husband in a quarrel one time when he had dropped around to the house and she would have found it very useful to have been able to sue her husband for damages over that particular beating she had sustained. I suppose in some circumstances it would be welcomed by some people in this province -- the right to sue the other spouse as laid out in section 3(a).

I’m not at all sure in my own mind, Mr. Speaker -- and perhaps at the committee stage we can determine it from the minister -- exactly what he means and how much scope is to be given in those sections of this Act dealing with children. I don’t think as laid out here they deal effectively with the rights of children and as a result I’m not sure if they haven’t created more problems than have been solved.

In many ways it is a very peculiar bill in that it seems to mix in so many points and at the same time fails to deal with the major point of interest, that is, an equal division of property rights between the two spouses upon the unfortunate circumstances of a dissolution of their marriage. It requires an accounting of the spouse’s contribution in actual work terms to whatever that work endeavour is. I find this not nearly good enough and it does not come close to meeting the legitimate aspirations of the women in this province. The minister could and should have done much better, particularly in the year 1975, International Women’s Year.

Mr. Speaker: Are there any other members who wish to speak to this bill? The member for Riverdale.

Mr. J. A. Renwick (Riverdale): Mr. Speaker, I want to speak, I hope not unduly long, about Bill 75 from a number of viewpoints. I don’t intend to deal with a number of the specific items in the bill until such time as we are in committee and I am referring, for practical purposes, to sections other than section 1. Section 1 has a number of matters which are of immense concern to me, and the format of the bill itself is of concern to me.

Let me say right at the beginning that I think we all know that when one starts to change the rules with respect to fundamental institutions of society, one creates a sense of concern amongst people. Change, by its nature, seems to cause people immense apprehension, and it may well be that those of us in a party such as the Democratic Socialist party are more aware of the concern that that causes than perhaps those who are brought up in the Liberal political tradition. But I am inclined to think those who think in Conservative political philosophy terms understand what I am saying when I make the comment that changes in fundamental rules cause uneasiness even amongst those who are, in many cases, the protagonists of the change. When they actually are faced with the change as it applies specifically to themselves and the world in which they live, it creates a sense of uneasiness and a sense of concern.

So I am not underestimating what we are starting upon in this bill; presumably the first of a series of bills dealing, so far as the jurisdiction of this assembly or its legislative authority is concerned, with the family relationships and the marital relationships. They are singularly difficult problems tor the law to deal with.

All right. Having said that, let me go back if I may in some brief sense, but I think accurately and correctly, into the history of what we are talking about.

It is about 100 years ago that the Married Women’s Property Act was first passed, both in Upper Canada -- or the Province of Ontario, as it then was -- and in the United Kingdom. I think it was in 1874, which for practical purposes is a century ago, and I think it is fair to say that there has been little change, so far as the law is concerned, in the legal relationships between men and women when they are married, with respect to their interrelationships and with respect to their relationships with their children. I don’t think that anyone would question that general statement. So if we are about to embark on changes in matters which haven’t been dealt with for about 100 years, I think perhaps we should do it pretty carefully and pretty systematically and pretty thoroughly, and with a clear understanding of the need to communicate with people throughout the province as to just what the effect and consequences of these changes may well be.

I think that’s my basic concern about the way this bill is worded. It’s a typical lawyer’s bill, drafted to use the negatives for the purpose of expressing something positive, because that appears to be the way in which one delimits and limits the operation of the bill. If one is forced to state something positively, then lawyers get very frightened about it because it appears to open up too wide a field. So they resort to the negative clauses that are involved, and so we get the formal draftsmanship that we have in this bill, where the first subsection of the first section is a general statement, a proposition, and then there is a series of sections following that which are designed to sort of clarify that and make certain that it’s properly understood, and limited properly, and not given too broad a sweep. All of the language of the law is involved in section 1, subsections 2, 3 and 4, because they make it extremely difficult.

I think the first point I want to make is that we are making very substantial and significant changes -- we may not think we are but we are making very substantial and significant changes in language which very few people can understand. I don’t know how one solves that. I think it’s about time that the Ministry of the Attorney General, not only with respect to this Act but with respect to a number of other Acts, had better hire some skilled writers to put those Acts into the English language, not the drafting of the statutes because the statutes are a special form of expression of legal intentions of this Legislature and I am not talking about that, for the purpose of conveying accurately to people the nature and significance of what we are about when we start in on the rules with respect to institutions such as the family relationships.

The second point I want to make is that if one goes back to 1874 one doesn’t have to go very far behind that to 1861 when Sir Henry Maine published his classic work on ancient law. He has some very fascinating things to state about what the relationship of men and women when married was at that time, and of course with very few exceptions it has continued to be that way up until the present time and that, of course, is what we are engaged in trying to remove with this bill. I would commend to anyone who wants to try to understand what took place in the history of this particular relationship to read a few pages starting at about page 90 in the Everyman’s edition of it.

I don’t intend by any means to read all of the pages in which reference is made to this problem. But I do want to quote two or three things which were said in connection with this long and overly long period of the emancipation of women from the domination of the male side of the family, whether it be the family through the father or on the death of the father through the senior male representative and then by transference to the marriage relationship when a woman left the family and married a person and found herself in significant subordination to him.

The point which Sir Henry Maine makes is that in the mature part of the Roman law, at the height of the development of the Roman legal system, the Roman law assumed the equality of the sexes as a principle of their code of equity. The restrictions which they attacked were, it is to be observed, restrictions on the disposition of property, for which the assent of the woman’s guardians were still formally required. Control of her person was apparently quite obsolete. During that middle period of Roman law, as I understand it, for practical purposes we find that during that period of time women, married or unmarried, whether prior to being married or after marriage as a result of death and widowhood, in any stage of a woman’s life in her relationships to men, were free, independent and never subject at the best times of the Roman law to any of the limitations which were subsequently imposed upon them.

Sir Henry Maine then goes on to say that the prime phenomenon of modern jurisprudence was the subordination of the wife to her husband. I suppose that’s exactly what we are trying to get rid of at the present time in all of its aspects. I don’t know whether or not we are going to be capable of doing this. He states, and I am not going into the preamble which led to this statement of conclusion:

“The consequence was that the situation of the Roman female, whether married or unmarried, became one of great personal and proprietary independence, for the tendency of the later law I have already hinted, was to reduce the power of the guardian to a nullity while the form of marriage in fashion conferred on the husband no compensating superiority. But Christianity tended somewhat, from the very first, to narrow this remarkable liberty.”

He goes on -- and I skip a piece -- and talks about the point in time in the Middle Ages when we had the two strains in western civilization of law, the Roman law and the law of the Germanic and Scandinavian tribes, which is the inheritance from which we happen to come. He goes on to state:

“When we move onwards, and the code of the Middle Ages has been transformed by the amalgamation of the two systems, the law relating to women carries the stamp of its double origin. The principle of the Roman jurisprudence is so far triumphant that unmarried females are generally relieved from the bondage of the family; but the archaic principle of the barbarians has fixed the position of married women, and the husband has drawn to himself in his marital character the powers which had once belonged to his wife’s male kindred, the only difference being that he no longer purchases his privileges.

“At this point, therefore, the modern law of western Europe begins to be distinguished by one of its chief characteristics, the comparative freedom it allows to unmarried women and widows and the heavy disability it imposes on wives. It was very long before the subordination entailed on the other sex by marriage was sensibly diminished.”

I skip a little bit and pick up the quotation a little bit later on.

“The chapter of law relating to married women was for the most part read by the light, not of Roman but of canon law, which in no one particular departs so widely from the spirit of the secular jurisprudence as in the view it takes of the relations created by marriage. This was in part inevitable, no society which preserves any tincture of Christian institution is likely to restore to married women the personal liberty conferred on them by the middle Roman law; but the proprietary disabilities of married females stand on quite a different basis from their personal incapacities, and it is by keeping alive and consolidating the former that the expositors of the canon law have deeply injured civilization.”

Then he goes on a little bit further and picks up with relation to the English common law:

“And scarcely less stringent in the proprietary incapacities it imposes is the English common law, which borrows for the greatest of its fundamental principles from the jurisprudence of the canonists.”

I complete my quotation from Sir Henry Maine by skipping slightly and carrying on at a further point:

“I do not know how the operation and nature of the ancient patria potestas, the power of the head of the family, can be brought too vividly before the mind as by reflecting on the prerogatives attached to the husband by the pure English common law, and by recalling the vigorous consistency with which the view of a complete legal subjection on the part of the wife is carried by it where it is untouched by equity or statutes through every department of rights, duties and remedies.”

I think that is a very interesting and perceptive description of the law as it was in 1861, as it was varied in minor particulars in 1874, and as it has remained until the present time.

What they are really saying is that the common law subordinated in every respect the wife to the husband. It is a clear statement that that was so. The minor ameliorations made in 1874 in the United Kingdom and in our law at about the same time produced minor changes, but the subjection remained the same and has remained the same for a considerable period of time. It has been varied only to the extent that the courts, in the exercise of their equity jurisdiction, have endeavoured to relieve against the rigours and the stipulations of that relationship. It is only by reason of the statutory law that we are also trying to escape from that relationship.

What was that relationship? Let me make this point: It is so old and so barbaric that it relates to a time when status determined the position of a person. It is trite law to say one can have a contract or agreement to marry but that marriage is not a contract or an agreement. Marriage is a status imposed by the state mainly because of the influence of canon law on the common law and the nature of the feudal society from which it came.

It is a status we’re talking about and we are not engaged in altering the status relationship in these bills. Someday, somewhere, that status relationship may change because the only reason for status, as between man and wife, is to indicate that one party in that status arrangement is subordinate to the other. Otherwise it has no significance or meaning.

The great advance in what the Conservative Party, the Liberal Party and we inherited as a tradition is we have moved from status to contract, to the law of contract. I wouldn’t be surprised if, at some point in time, the relationship between men and women, for marriage purposes and for family relationship purposes, will be solely a matter of the law of contract. The status conception of it will have disappeared and the interest of the state in it will have disappeared.

That is not going to happen in our time so what we are talking about is a difficult conceptual problem. That is the status relationship which we’re not touching in accordance with this because I don’t think we have that much jurisdiction in the nature of that status relationship.

What we want to deal with are matters related to civil liability in tort and otherwise. We want to deal with certain proprietary relationships and we want to try to indicate that for contractual purposes a married woman do whatever she wants to do with herself, with her property and with her life, as any man can do, without any disabilities.

I think that’s a fair statement because there is no doubt whatsoever if one reads the judgement of the judges in the Supreme Court of Canada in the Murdoch case -- particularly the judgement of the single dissenting judge, the chief justice; he was striving desperately, by way of equity, to produce a fair result in the relationship between Mr. and Mrs. Murdoch. It is very interesting that of the other four judges, the judgement of Mr. Justice Martland was engaged entirely in talking, for practical purposes, about equitable principles but he couldn’t bring himself to see that there was an equitable principle which was available for him to apply in the circumstances.

Perhaps I could try to complete my views about the nature of the bill which is before us because what Bora Laskin said in the Murdoch case was that it was quite likely that any effective changes could only be made by and through legislation, but that that didn’t necessarily inhibit him from trying, in the absence of legislative change, to give a proper result in the Murdoch case. I am not setting Bora Laskin up in contradistinction to the other judges. I am quite certain the other judges were equally concerned about the nature of the problem they were faced with, but couldn’t bring themselves to believe that there was an equitable principle which would have permitted that application in that particular case.

So what I am trying to say, Mr. Speaker, is that the bill is an extremely difficult one in some of its conceptual applications, in the way in which it is expressed and in the consequences which will flow from it. Now I regret, and I am quite certain it has been expressed before, that we are not able to deal at this point in time with the conception of the matrimonial home and that we are not dealing with that problem. Nor are we dealing with whatever changes this assembly may wish to make with respect to the ownership of the assets of the marriage relationship and the disposition of the division of them at the time of the dissolution of marriage, whatever that law may be when it is finally introduced on the basis of the other reports of the Law Reform Commission.

I am inclined to think that, while I would like to see us moving with more haste, I am prepared to accept the proposition that the decision of the government not to deal at this time with the matrimonial home situation until there has been significant clarification about the support obligations and the overall relationships with respect to the children of the family, and the family as a unit can be dealt with at one time rather than limiting it to something called just the matrimonial home.

So, realizing that those are matters which have now been set aside, I would like to speak just a little bit about the questions which are inherent in subsection (c) of section 2, and to endeavour to say what I believe the Murdoch case says and what the problems are in attempting, in a dozen lines, to put into the law of Ontario the net effect of the dissenting judgement of the chief justice of the Supreme Court of Canada in the Murdoch case.

Before I proceed to do that. I just want to quote, if I may, the extreme difficulty which is experienced by the lawyers in drafting any of these clauses, because having said everything they wanted to say in subsection 1, and having, for greater clarity, expressed in subsections 2 and 3 some other versions of the same treatment, they then found that they probably hadn’t quite really said it correctly, or the way they wanted to, so they added subsection 4, and I think it’s a beautiful statement of the inability to understand what we are about. It says:

“The purpose of subsections 1 and 2 is to make the same law apply, and apply equally, to married men and married women and to remove any difference therein resulting from any common law rule or doctrine, and subsections 1 and 2 shall be so construed.”

I guess that reflects what I have been trying to say about the extreme difficulty of overriding traditional views which are enshrined in the law related to this particular relationship of marriage and the family so far as the law is concerned with it. I am not at all certain that it has done it, but I suppose we are not going to know, that until some cases come before the courts and the courts have got to interpret what this assembly has tried to do in section 1 of this bill.

Turning now to the question of item (c) of subsection 1, let me say to the minister what I believe the Murdoch case was talking about and see whether or not both in these remarks, and perhaps when we get into committee on it, we can then be certain to the extent that it is possible we have said what we want to say in item (c) of subsection 3 of section 1.

First of all, we have to be clear about what was before the court in the Murdoch case. I am quoting from the judgement of the Supreme Court of Canada so we can understand what it was:

“There were two sections brought by Mrs. Murdoch against her husband, The first of the actions was for judicial separation, custody of the infant son, alimony, maintenance for the child, and an [order giving her the sole possession of a quarter section of land referred to as the family home.”

And that’s all I want to say about that part of it, because that part has nothing whatsoever to do with the bill which is before us and to the extent that it deals with the matrimonial home, that will await the future. That has nothing to do with the Murdoch case, as it became known and as the Supreme Court of Canada had to deal with it.

The second section was an action with respect to an interest in land and in the cattle and other assets owned by the husband, on the ground that she -- the wife -- and the husband were equal partners and that the respondent was a trustee for her of an undivided one-half interest in those assets that had been accumulated during the marriage.

I think at this point one should make it very clear that in the Murdoch case, all of those assets were registered -- to the extent of legal registration -- in the name of the husband.

The Supreme Court then had only, therefore, to deal with the second question. Of course, as the Chief Justice pointed out very clearly, the trial judge in the Alberta Appellate Court made a decision on the matter and decided that there was no partnership, and for practical purposes paid no attention to the other part of the claim that the respondent was a trustee for her of such undivided one-half interest. So at the trial level the case is very clear that all the trial judge really says is they were not partners and that was the end of it. He didn’t deal at all with the equitable doctrine of whether or not there was any trust arrangement involved in the ownership of those assets.

It is significant that the Court of Appeal in Alberta, when dealing with the case, didn’t deal with it on the merits. So, the first and only time the matter was dealt with on the merits, apart from the claim of partnership -- which was not pursued at any time because there was no partnership and it was known to be the case -- was when the matter came to the Supreme Court of Canada.

The significance of the decision is that it was unfortunate that it got to the Supreme Court that way and that those judges didn’t have the benefit of what might otherwise have been the case; the reasoned discussions and arguments and decisions of a court of appeal from which the issues could have been narrowed and the decision made, perhaps in a different way.

I think when it did get to the Supreme Court of Canada they endeavoured to deal with the question and the four judges who gave the majority decision appeared to try to deal with the question solely on whether or not there was a contribution in money or money’s worth. They simply indicated there was no such contribution which could be so held and there was therefore no resulting trust because a resulting trust could only take place where there was a matter of financial worth; that is, it could be valued in money or money’s worth.

Mr. Justice Laskin took a different view and stated very clearly that in his view there was a constructive trust, on the doctrine that if the court did not impose a constructive trust on the property involved in dispute before the court Mr. Murdoch would have been unjustly enriched at the expense of Mrs. Murdoch. That was the argument which he put forward and that was the argument which he intended to enforce.

I am going to leave that aside. That law of resulting trusts and implied trusts and constructive trusts is not what we are in the assembly to debate. It’s to try to understand what was impelling Mr. Chief Justice Laskin -- he was Mr. Justice Laskin at that time -- when he dealt with the problems which arose. He was trying to deal -- and his judgement reflects it -- with how does one quantify and give value or significance to the physical work and effort of Mrs. Murdoch in that situation as distinct from whatever financial contributions she may have made; or as distinct from any other value she may have put into the property.

The law has never had very much trouble in sorting our relationships between two people, wherever legal title is, if there is money involved or if there is money’s worth in property or other items of value. The significant and important thing is the contribution which Mrs. Murdoch made by the labour which she contributed to that marriage.

Mr. Chief Justice Laskin’s assessment of the case is quite clear because he states, “Central to my assessment is the uncontradicted evidence of the physical labour which the wife contributed to the spouses’ wellbeing and evidence of what she otherwise put into the matrimonial stock. First as to the physical labour” and he goes on at great length. That’s where his emphasis is. Mr. Murdoch had the benefit of the physical labour of Mrs. Murdoch in the course of their relationship which added to the productivity, added to the value of what they then exchanged and built up into a very sizeable estate.

What bothers me about item (c) of subsection 3 is that while there is a reference to work there is no indication in item (c) of subsection 3 of section 1 as to how one goes about the procedure of establishing that contribution. That’s why I criticize item (c) of subsection 3, because it is expressed in the negative. It says: “Without limiting the generality of subsections 1 and 2,” which are an attempt to express the general principles. Then that is further stated in subsection 4. Subsection 3 states:

“Without limiting the generality of subsections 1 and 2 ...

“(c) except as agreed between them, where a husband or wife contributes work, money or money’s worth in respect of the acquisition, management, maintenance, operation or improvement of a property in which the other has or had a property interest ... ”

Then one would have thought that there would have been a positive statement, but we go into that traditional negative:

“ ... the husband or wife shall not be disentitled to any right to compensation or other interest flowing from such contribution by reason only of the relationship of husband and wife or that the acts constituting the contribution are those of a reasonable spouse of that sex in the circumstances.”

It seems to me that that doesn’t say what the minister really wants to say that, namely, where a husband and wife are engaged in a business operation or in a farming operation they are entitled to an adjudication of their respective interests in the product of that venture as joint persons and that somebody is going to have to determine the method by which one puts a value on their respective interests.

The Murdoch case doesn’t deal with that because even if the dissenting judgement of Mr. Justice Laskin, as he then was, had been the majority judgement, it was for a reference back to someone else to make the adjudication and valuation and carry out the result of the decision which would have followed from it. I am inclined to think because of the nature of the history of the proprietary relationships between people and the special incidence of the proprietary relationships between husband and wife that there would not have been a very high value placed upon the physical labour aspect of the work that Mrs. Murdoch had done, had the matter had to go back for report as to what would have been the proper division.

I think what we are really saying in this bill is that when such a matter comes before the courts, a similar situation, we are in all likelihood saying to the court it has got to value for the first time something called the physical work of a spouse who makes no financial contribution. Where there is a disparity of financial contribution or contribution in money’s worth, and the only other element is the physical labour of one person as against the physical labour of another person, one is going to get into immensely difficult problems of valuation and of division. That problem isn’t dealt with in this bill. I think some better effort should have been made to deal with that aspect of it.

You have the further complicating fact that if this matter comes after the disposition of property, Mr. Speaker, there is no provision in this bill for following through on assets to make certain that the participation in the proceeds of the sale or disposition of such assets is available, or can be found or traced or earmarked or held until such time as a division is worked out as to what the respective interests may be. I am inclined to think that the minister is never going to solve the problem as between husband and wife by leaving those questions up in the air. I think he is going to have to come down to a situation that whether it is the matrimonial home -- subject to the support with respect to children, leaving that aside and whatever modification of what I now say is subject to that -- he is going to have to come down to the proposition that as between a husband and wife, regardless of whether they are engaged in business, regardless of whether they are engaged in farming or ranching, regardless of which of the spouses earns more or earns less, regardless of whether one of the spouses stays home for the purpose of maintaining the home and looking after the children, regardless of what those disproportions will be -- because otherwise they are infinite, the possible variations are infinite -- the minister is going to have to come down to the proposition that so far as the relationships related to property between husband and wife are concerned, they have got to be made a matter of contract.

Some people will say that if the government tries to spell out in the law what the relationship is, married people will of necessity resort to contract if they don’t want to agree with what the law states. I am inclined to think the minister is going to have to spell out in the law what the contract is, subject to that contract being varied as between husband and wife, if they wish to choose other than what the statutory contractual relationship will be.

I think the statutory contractual relationship is going to have to be one of complete equality with respect to property. I am hoping that at some point in time we will see the bill which doesn’t try to deal with just the matrimonial home but with all property, regardless of the source of it, that comes into the marriage through the efforts of the marriage, unless people agree otherwise.

I am not suggesting for a moment that the assets that a person has before marriage should be brought into the common pot, unless the parties agree that that is the way in which it should be done; but from the accounting at the inception of the marriage, from there on in, every increase in the productivity or decrease in the value of everything which is as a result of the marriage, has got to be, by law, divided equally if decisions have to be made about it during the course of the marriage and as well at the termination of the marriage.

Somehow or other that is the conception the minister is going to have to come to. He is not going to be able to say that it’s community of property on death and they must contract out of it. Let me put that the other way. I think what the minister is going to have to say is: This is the contract as between married spouses and unless they alter it by contract at the time of the marriage, this is the way the division is going to be, and the division in the absence of any variation of it must be 50-50.

I think those are the principal points I want to raise about item (c) of subsection 3. I find it a most difficult clause and I am not suggesting that I know the answers to it. I would hope that perhaps during the course of the committee discussion of this bill we could get a clearer idea of what the intention of the government is when it introduced these particular 12 lines into the bill.

We, in this party, will support the bill. It has a number of good and necessary clauses in it which remove disabilities which shouldn’t have been in the law as long as they have been. We will support it on second reading and look forward to discussion of it in committee.

Mr. Speaker: Does any other member wish to speak before the minister? The hon. minister.

Hon. Mr. Clement: Thank you, Mr. Speaker. The bill, of course, is styled in its short form, the Family Law Reform Act, and must be construed in that context and not in the context of a piece of legislation for women’s year. It deals with the rights of spouses, it deals with the rights of children and it even deals with the rights of those who suffer injury prior to their birth.

There have been some observations offered as to why the question of domicile has been dealt with in the bill, and there has been some suggestion that this is a chauvinistic section, being section 2(2). I think it’s obvious that the reason it is in the bill is to confirm certainly for the time being, that the bill in no way is intended to interfere with the law as it presently stands.

I make no apologies for this section; and I’m glad it’s there. That doesn’t mean that at some time it will not in fact be altered by statute, but I think we should make it perfectly clear that this bill does not disrupt what I consider to be the fairly clear conception of domicile as it pertains to a married woman. The law of domicile has a very profound effect. It affects in many instances, particularly prior to the Divorce Act, the situs where one would obtain a valid divorce.

Those of us who had some experience prior to 1968 in the practice of law, well recall conferring on many occasions with those clients who would decide to go to Nevada or Alabama for varying degrees of time in order to obtain what they thought was a valid divorce. In some instances of course, people did resort to that sort of thing and did go to Alabama. I think it used to take about two hours. In the last case I had any involvement with, a person was able to make the flight down, get the divorce and fly back the same day. It was kind of a package deal.

On the strength of that document, a person might remarry in New York State because of the reciprocal recognition arrangements that exist between states. That marriage, of course, was no more valid in Ontario than the paper it was written on; and I can tell you that it very adversely affected the lives of a lot of people.

There was an interesting case involving a client of mine who at first blush was a defendant. I had acted for husband No. 4, and I guess I did a fair job, in his assessment and hers too, because she then came back to see me and became a client, as we eventually dissolved her first marriage which had happened some 35 years before.

There has to be some clear understanding of domicile because it does indeed affect so many things, one being inheritance. In this particular matter, her first husband, on the strength of the US divorce, found out he couldn’t remarry in Canada, so he remarried in Buffalo and on the strength of that US marriage successfully, if I may use that word, effected an adoption of a then infant in Ontario.

When I brought the action for husband No. 4, it was of course an action for anullity and there was a positive declaration made by the High Court judge that the first marriage to So-and-so was still valid and subsisting. I often wondered what the effect of that would have been on that youngster, had the father predeceased the adoptive mother, being his second wife. The second wife died, and the man of course regarded himself as a widower; then we had the annulment action and eventually a subsequent divorce action brought to terminate it once and for all.

But if it hadn’t happened -- and he was a very wealthy man, I might add; he had vast holdings of land -- if it hadn’t happened that way and he died, I just wonder how that youngster would have made out if his next of kin had brought an action setting aside his will. They are challenging his will on the basis that the person described “as my daughter Mary,” perhaps was not his daughter Mary in legal terms. So I think that we will be reviewing the matters dealing with domicile in due course in this ongoing process of bringing up to date the laws that the member for Riverdale has described so aptly as being many years outdated.

The Law Reform Commission made some observations and recommendations when it issued its report on family law in 1974. It said in recommendation 1:

“The legal effects of marriage on mutual rights of the spouses inter se to movable and immovable property owned by the husband and the wife, or by both of them, shall be determined by the law of the jurisdiction in which they established their first common habitual residence after the celebration of their marriage.”

And that may at some future time become a recognized legal bit of phraseology. It then goes on to make six or seven other recommendations that may well become a concept, but not right now.

Our plans are to go ahead with this piece of legislation. And then, as we pointed out, it is an ongoing process. We have before us the recommendations and observations of the Law Reform Commission dealing with the supportive role of the parties to the marriage. I suppose we will, in due course, have to study matters pertaining to the rights of survivors, matters under the Dependants’ Relief Act, Devolution of Estates Act, Wills Act, testamentary guardianship, illegitimate children, perhaps some matrimonial homes specifically, and the unified family court.

Now, the member for Windsor West raised some interesting commentary. As I understood his submissions, what he really was saying is that there should be a complete community of property by statute. He says that his criticism of the bill is that it does nothing to recognize that marriage is an equal partnership and the assets of the marriage should be divided equally.

That presupposes, I presume, that each contributes equally to the relationship of marriage. I just wonder if equity would prevail if, in essence, one was parasitical and the other was industrious. I wonder what the observation and the reaction in the public mind would be in that type of thing if the law compelled the industrious partner of that marriage to share unequivocally, no question about it, the results of his industry with his partner of the marriage who had contributed absolutely nothing.

Mrs. M. Campbell (St. George): His or her.

Mr. H. Worton (Wellington South): His or her.

Hon. Mr. Clement: You see, it could be his or her. It doesn’t necessarily --

Mr. J. R. Breithaupt (Kitchener): That is where the “for better or for worse” part comes in.

Hon. Mr. Clement: That probably is indeed where the part “for better or for worse” does come in.

Hon. A. Grossman (Provincial Secretary for Resources Development): That’s why he left.

Hon. Mr. Clement: There has to be a community interest in this. The citizens of the province, whether they like it or not, will have an interest in it. Because I can foresee the situation where let’s say, a young female person inherits from her family a substantial sum or earns it, acquires a home, marries, has children -- and then let’s blame the husband in this situation. Let’s say he refuses to work, has some kind of an alcohol problem or any one of a dozen reasons; but there is a separation and if that separation was based on law that said it’s 50-50, then of course one would have to see the home sold in order to meet his lawful requirement.

I’m talking about the community of property. I’m not talking about the thing that the member for Riverdale was saying, because he made it very clear that it was assets acquired after the marriage. I’m talking about the community of property aspect where everything is put into the pot and cut in half on the breakup of the marriage. I just don’t see why I, as a taxpayer, should have to support that young woman and her children as her husband flits off with half of the money derived from the matrimonial home.

One can argue the male side; it doesn’t matter. I’m trying to make a point that it is over-simplifying it to say merely, “Let’s just divide it” and that’s the end of it, that everything will be resolved. Because it won’t; it will create a lot of inequitable situations.

There have been some suggestions, not necessarily made here today, Mr. Speaker, but in meetings with different individuals who had some interest in this matter, that whatever form the legislation takes it should be retroactive and, for example, if it was going to be a straight 50-50 division of all assets, that it should be not only for marriages celebrated after the proclamation of the Act but indeed be retroactive to cover those other marriages.

The Law Reform Commission does not support that concept, and I think there is no way that we could have that type of concept undertaken in this or subsequent legislation, for the simple reason that I would be very much concerned as to the tremendous disruptive force that might have in disturbing existing arrangements that have been very carefully worked out by spouses who are still living together, each having perhaps substantial assets on their own and finding that all of their plans and estate planning over the years have, by a stroke of this Legislature, been completely destroyed. I would have to approach that type of proposal very warily.

I hope the members don’t think I’m picking on the member for Windsor West. He happens to be a person I consider to be a friend of mine. By the way, he’s not present in the House; he stepped out a few moments ago. He did come up with some unusual submissions in his observations --

Hon. Mr. Grossman: That’s why he left.

Hon. Mr. Clement: -- and I wanted to respond to them. I noted his observation that if the property is in one name, he felt the consent of the other spouse should be obtained prior to the sale of the property. I just could not see that ever going forward. That would be a most difficult and disruptive thing in a commercial sense. I would hate to think that one would require the consent of the other party.

What happens if the one spouse is mentally incompetent? What if the public trustee doesn’t sign off? What happens if one is not legally mentally incompetent but is socially incompetent in the sense that he or she has a drug or alcohol problem and will really only consent at the price of a blackmail type of arrangement? It would just interfere tremendously. What if a man in business wanted to dispose of one piece of property that happened to be in his name so that he could acquire another piece of property, perhaps in concert with a business partner, and the spouse of the first man does not consent? I think it would be extremely disruptive to many arrangements.

He drew my attention to the three words in section 1(3)(c), “has or had”, about five lines from the top of paragraph (c). I think he would agree with me that -- he suggested the word “has” and, of course, we have to put the word “had” in there to protect one spouse from the other in the event that the property was disposed of even during the course of the proceedings or dispute that led to the separation or just prior to it. Surely no one should be entitled to convert a piece of real estate into cash and say “I got in under the wire and you have no recourse for the work, effort and so on which you contributed to the acquisition of that initially.”

The member for Riverdale suggested we should proceed cautiously because we are going to be somewhat disruptive of those social institutions, both legal and otherwise, which have existed for a number of years. I can only echo that observation and in fact I made some express comments along the same lines at the time I introduced the bill. We must be very cautious. We cannot proceed quickly. We must look at the recommendations dealing with support because we have an obligation not to destroy but to build.

We are at the present time studying briefs and observations which we are receiving -- some in the form of letters; some fairly formal so I am told -- regarding the supportive study of the Ontario Law Reform Commission. We will be looking at those over the summer months, making our own judgements, suggesting policy and coming back to the House, hopefully in the autumn, with ongoing amendments to the family-rated type of legislation.

The member for Riverdale made some interesting observations dealing with the negative drafting of section 1, subsection 3, sub-sub (c) which says the husband or wife shall not be disentitled. I believe the reason for taking that type of approach to it rather than saying “shall be entitled” is that some contribution in the form of work and so on may be extremely minimal. By framing it this way, I think the onus is on he or she who alleges he or she made the contribution and/or work etc.

They have not been disentitled but I think they are going to have to demonstrate, when they eventually litigate, that they made a contribution which can be measured or is measurable and not a contribution which is a theoretical type of situation.

My friend from Windsor West is back again. He made me very worried when he gave his example of Mrs. Burr sitting down and marking the papers as opposed to going and getting the coffee. I don’t know how one would measure it other than to reflect on how much of a contribution one had made over the years. I would personally hate to think there would be the marriage ledger and as one says to one’s wife, “Would you mind going out and raking the lawn?” she says, “Just as soon as I make the entry in the ledger because I want to have this all down in the event that 15 to 20 years from now, you and I decide to go our separate ways.”

Mr. Bounsall: That is the problem the minister is creating.

Hon. Mr. Clement: I don’t think it will ever come to that unless one entered the marriage relationship with the avowed intent of trying to get out of it in a very beneficial way. I couldn’t imagine one accepting that type of evidence with too much sincerity. If one said, “Yes, we were married for 32 years. I have a ledger and the entries were made daily during the 32 years. I loved her -- or him -- dearly and I had no intention of us ever breaking up,” I think the fact of the production of that kind of document would negative that submission. It would be a good idea; it would be a good way to do it.

Hon. Mr. Grossman: They’d have a conjugal ledger.

Hon. Mr. Clement: Perhaps we should have as a form attached to this legislation, a form 1, which would be an approved type of matrimonial work ledger. I don’t know.

Mr. Bounsall: That is what the minister is creating.

Hon. Mr. Grossman: How would you figure the benefits?

Hon. Mr. Clement: How would you do it if you didn’t have it that way? My colleague to my right makes that observation. How would you do it if you don’t say that work and so on in a property is indeed a factor that can be measured? I think the court is going to have to make that decision obviously.

I think we’ll find that in detailing what they have done in a marriage, people will not necessarily recall in detail each little instance over a number of years, but one surely can detail her contribution in the form of looking after a home for 15 or 20 years, raising the children, feeding them, clothing them and so on. If there were things incidental to that -- outside maintenance, painting, raking yards -- I think that is the sort of thing the judge would expect to hear in any such claim brought under this section.

I have really nothing further to offer at this time, Mr. Speaker. I look forward to the debate as we proceed in committee, section by section. I welcome the observations of those who have taken time to be involved in this debate and I look forward to continuing them as we move along. It is my intention that we proceed through committee of the House, of course.

Motion agreed to; second reading of the bill.

Mr. Speaker: I understand it is to be referred to committee of the whole House.

Agreed.

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

FAMILY LAW REFORM ACT

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

Mr. Chairman: Does any member wish to speak on any clause before section 10?

Mr. J. A. Renwick (Riverdale): I just want to engage the minister for a few minutes on his intentions with respect to section 1(3)(c) of the bill.

On section 1:

Mr. Chairman: The member for Riverdale.

Mr. Renwick: Let me ask a very simple question. Is it the intention of section 1(3)( c) to incorporate into statute law basically the conception of the dissenting judgement of Mr. Justice Bora Laskin in the Murdoch case? If not, what is the intention?

Hon. J. T. Clement (Provincial Secretary for Justice): That subsection of the bill is put in there to avert the type of situation that was dealt with in the Murdoch case, so that there is a recognition in the statutes of this province that if one has made a contribution of money, money’s worth, work and so on to the operation, acquisition or improvement of a property, then that is a measurable item and one is entitled, on the dissolution or the termination of the marriage relationship, to be recompensed for that contribution.

Mr. Renwick: I want to talk a little bit about it so that I can understand what we are doing in it. Mr. Justice Martland, in his decision, made this statement:

“The present case involves a claim to an interest in three quarter sections of land and in all the other assets of the respondent, being the husband. It is, in substance, a claim to a one-half interest in the respondents’s ranching business. [He then goes on to say:] The trial judge was of the view that all the appellant, the wife, had done while living with the respondent husband was the work done by any ranch wife.”

I take that to be sort of the problem as it was stated, and which the court had to deal with.

Then you come to what Mr. Justice Laskin had to say. As I stated on second reading, he referred extensively to the question of the physical labour contributed in this case by the wife. She had made a minimal or a marginal financial contribution -- and that was easily assessable and easily determined. But it was almost as if, for the purposes of our discussion, we could discard that question and simply say we’re talking about the physical labour aspect of the contribution of one of the spouses. Mr. Justice Laskin, dealing with the same statement of the case as Mr. Justice Martland, says:

“The respondent husband admitted on discovery that his wife did the necessary chores while he was away on his other work, and his evidence in chief on this matter was as follows: ‘Q. Over the years, what were your wife’s activities around the ranch? A. Oh, just about what the ordinary rancher’s wife does. Most of them can do most anything.’

“[The judge goes on:] This answer appears to be the basis of the trial judge’s conclusion that the wife made only a normal contribution, as wife, to the matrimonial regime -- a conclusion carrying the legal signification that it gave her no foundation, upon the breakdown of the marriage, to claim an outright interest in the assets standing in her husband’s name, which were accumulated during the cohabitation of the spouses.”

Let me try to clarify what I’m saying. Let’s assume that she hadn’t made that minor financial contribution, and the only question was the physical labour, as delineated in the judgement of the court as being her contribution to the assets, all of which ended up in the husband’s name. Later on, Mr. Justice Laskin says:

“The position as between the parties at the time of their separation was therefore that the wife had contributed considerable physical labour to the building up of the assets claimed by the husband as his own, and had also made a modest financial contribution to their acquisition.”

I want to leave aside the question of whether or not there was a modest or no financial contribution to the acquisition.

“The legal question is whether she can now claim a one-half or any interest in them, when the husband has legal title and possession and denies any arrangement for the sharing of the assets, and when the wife is unable to produce any effective writing to support a division in her favour. The legal proposition upon which the respondent husband rests is that his wife’s work earned her nothing in a share of the assets in his name, when it had not been recognized by him in a way that would demand an apportionment; that is, by proof of an agreement or at least of a common intention that she should share in the acquisition. In my view, this is to state too narrowly the law that should apply to the present case.”

I might interject there that I think it is fair to say that the one thing that’s clear about the Murdoch case is that when they got married neither of them had anything, so we weren’t involved with which assets belonged to which party prior to the marriage. We’re talking entirely about what was accumulated during the course of the marriage.

“The case is one where the spouses over a period of some 15 years improved their lot in life through progressively larger acquisition of ranch property, to which the wife contributed necessary labour in seeing that the ranches were productive. There is no reason to treat this contribution as any less significant than a direct financial contribution, which to a much lesser degree, she had also made. The relations of husbands and wives in such circumstances should not be allowed to rest on the mere obligation of support and shelter which arises from the fact of marriage, where the husband is able so to provide for an impecunious wife, nor on her statutory dower right under the law of Alberta. They represent a minimum and reflect the law’s protection for a dependent wife. I do not regard them as exhausting a wife’s claim upon the husband where she has, as here been anything but dependent.”

Then my last quotation from his judgement:

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

He goes on to make his decision on the basis of his version of a constructive trust and realizes that that is the second best to a legislative solution to the problem.

What bothers me about this clause is that it says, “contributes work, money or money’s worth.” Money and money’s worth have never been a court’s problem. The court has been dealing with property rights in a sense of values for a long time. What it has never had to do, as far as my knowledge is concerned, is to value the labour question in a marriage relationship, and I don’t see how this is going to be of any significance. As I said, and even Mr. Justice Laskin said, if his judgement had been the majority one he would have referred the matter back for somebody else to make the valuation. I don’t think that is going to be possible without the courts being required to establish principles for which there is no historical precedent.

When one gets questions of unjust enrichment where work is done and they can apply a contract, where somebody has done some work and they want to value work and materials and that kind of thing, it is a limited situation and it applies to what could otherwise have been a specific contractual relationship.

One is talking about long periods of time. I think there will be problems unless this Legislature says in a very clear and definitive way, without talking about whether it is the matrimonial home or anything else, unless it is very clear from the moment the marriage commences until it is dissolved that the relationship is a 50-50 relationship and not this minimal requirement of one spouse to support the other spouse to the extent of necessaries.

People with a lot of assets can contract out, but that has always been the case. Wealthy people always make all sorts of contractual arrangements, marriage settlements. That is not what we are talking about. We are talking about the Murdochs of this world or the housekeepers of this world or the part-time workers of this world or those who stay at home to raise children and how one makes those valuations of what the contribution is in these instances.

I agree with the minister. We can’t do it on a ledger basis. If people are sufficiently wealthy that they want to work out marriage settlements and work out their mutual arrangements on a ledger basis, they can hire accountants to do that kind of thing. Everybody knows that is being done and can be done, but those people can afford it. We are talking about people who don’t want to get involved in that; can’t afford it in the first place and, secondly, it is difficult to quantify.

Mr. J. E. Stokes (Thunder Bay): Lawyers are too expensive anyway.

Mr. Renwick: I want to ask the minister: Why can’t you say that in the absence of agreement assets accumulated during the course of the marriage are to be divided equally on the termination of the marriage; or if we can ever solve the problem of the economic partnership during the course of the marriage, work out what each is entitled to withdraw or how they are to invest any surplus funds they may have at that time?

It seems to me it would have been fascinating to know what Mrs. Murdoch would have come out with if the only thing she had gone in with was the physical labour, when the decision had to be made and the court had no capacity for making that judgement; no rules, nothing to guide it.

I think what I am saying is how is it going to be done under this provision of the bill? Are you just going to leave it to the courts? I don’t think you can do it. Even Mr. Justice Laskin had to say this was an exceptional case because he was able to delineate the period of time and the nature of the physical labour and emphasize it all. Even he said if the contribution was simply housekeeping that would be an extremely difficult valuation to make.

If one of the spouses goes out and practices in one of the professions and earns $40,000 or $50,000 a year and because of an ancient tradition in that particular, say upper middle class kind of life, the wife stays home and raises the children and does all of those things; and he accumulates the bank account and makes the investments and does all of those things when the marriage is terminated do you really think a court is going to say the wife’s contribution to that situation was eight per cent or 12 per cent or 50 per cent? Nobody can tell what it was. How they would do it?

That is why I think you are going to have to face up to saying in that situation it is a 50-50 proposition because that is what they agreed to do. That is the arrangement which they made. They didn’t put it into writing but that is how they went about their business. Then you get all sorts of other variations -- the person who works part-time; the person who stays home, does the housekeeping, raises the children and decides then to go back either to work or to take some further education, whatever it is.

All is done by way of mutual agreement as the time goes on, subject to the normal stresses of decision-making within a marriage relationship. Surely, the only way you can deal with that is 50-50 and if they want to make separate arrangements, they make separate arrangements. As I say, by and large, well-to-do people will make those arrangements and that’s their problem, but for the great bulk of people there will be a clear understanding of what that relationship is.

I don’t make the further logical extension that if at the time of the termination of the marriage one of the partners is disabled, for example, or there are still infant children -- I’m not suggesting for a moment that the award of custody carries with it no obligations. We have agreed that is not the kind of situation we are talking about at this point.

I think you’ve got to come to the point in something like the Murdoch case where, say, there is a flourishing ranching business or there is another flourishing business going on; or in the other extreme case which is simply a question of one spouse earning a salary and the wife or the husband staying at home doing the housekeeping, raising the children, the family and so on; I think you are going to have to cut the Gordian knot and simply say it’s 50-50. If they want to contract out of that in some way, fine. Would the minister respond to that? Isn’t that the only way?

Hon. Mr. Clement: I don’t really think so and I’ll tell you why. The recovery of moneys, in the typical housekeeper case is always done on a quantum meruit basis, and it is usually quite easy to establish. I am talking about the housekeeper arrangement: “He said he would leave me half of his estate” -- it’s easy to determine what half the estate is -- or: “He said he would pay me at my usual rate for all those overtime hours I worked in the last five years when he was ill” -- and you know what the original rate was, and that’s easy to establish.

Mr. Renwick: Those are very low by the way, those decisions; very low.

Hon. Mr. Clement: Yes.

Mr. Renwick: Yes, and if they start to use that as a precedent it would be disastrous.

Hon. Mr. Clement: No, no; I don’t say to use that as a precedent, but I say in those type of cases they can establish the contract. It is usually easy to determine. The housekeeper says, “Half the estate.” Well, we know what half the estate is and we cut it in half if she is successful in her claim. Those kinds of things are readily determined on a quantum meruit basis.

Now on this section 1(3)(c), take the situation where let’s say the male comes into the marriage with $40,000. He then uses that to acquire a matrimonial home, registers it in his own name, and he and his wife live their X number of years and then there is, for one reason or another, a termination of the marital relationship or the living together, a separation.

Again, we are on the same wavelength. We are not going to talk about the support obligations of the husband, we put that aside. The wife, who has worked in that home as a homemaker during the life of the marriage, presumably would want to bring a claim against her husband, referring to that under this section we are discussing right now.

Would it be difficult, in this situation, if the measurement of the value of that at the day of separation or the day of the trial, whatever is selected -- I suppose the date of the termination of the relationship would probably be the measurement -- is now worth $60,000? The enhancement to them jointly is $20,000, from my example. Now, one would have to look, if one was adjudicating, at what she had done in that home. Presumably if he was off making his $40,000 or $50,000 a year in his profession and she was home playing the traditional role of the homemaker, I think very few judges would find any rule other than that the enhancement or the increase is probably to be enjoyed equally by the two of them.

I am sure this is right. The husband isn’t going to say, “Well, the minimum rate for labour back in 1968 when I got married was $1.60, and then it went up in 1969” -- he is not going to go through that, because how is he going to determine the number of hours? So, that’s the one situation. A man comes into the marriage with the money and buys the home.

Now, let’s say they both work, as so many do, particularly when first married, and they accumulate, for the sake of argument, the $40,000. Say he accumulated $30,000 of it and she accumulated $10,000. How would it work then? If he put in three times the amount in the initial contribution, I presume, and that came after the marriage --

Mr. Renwick: Yes, after the marriage. They started out with nothing.

Hon. Mr. Clement: This was after the marriage. They started out with nothing and then they acquired these sums, which they put into a home or some business of some kind after the marriage. I presume the approach that the court would take in that sort of thing is to say it is an asset that was derived from assets earned or acquired after the marriage. The husband having contributed three-quarters of the price of the home; she having acquired it, but it is in his name, there is no question but that she should have her $10,000 back, there is no question about that.

Mr. Renwick: Oh, no question about that. The court would come to that conclusion today.

Hon. Mr. Clement: Yes. The judge’s next question, of course, is --

Mr. Chairman: I must remind the minister of the hour.

Hon. Mr. Clement: Oh, I am sorry, I didn’t realize it was so late. I was getting pretty nervous here, dividing this into quarters and three-quarters.

Mr. Chairman: Would the minister move the committee rise and report?

Hon. Mr. Clement moves that the committee rise and report.

Motion agreed to.

The House resumed; Mr. Speaker in the chair.

Mr. Chairman: Mr. Speaker, the committee of the whole House begs to report progress and asks for leave to sit again.

Report agreed to.

Hon. A. Grossman (Provincial Secretary for Resources Development): Mr. Speaker, on Monday we will continue with this bill in committee; proceed in committee with Bill 45; and on second readings, 106, 111, 77, 107, 95 and 96. If we get all that done, it will be a good day’s work.

Hon. Mr. Grossman moves the adjournment of the House.

Motion agreed to.

The House adjourned at 1 o’clock, p.m.