Journal des débats 1982-juin-18 | Assemblée législative de l'Ontario

Mr. Foulds: Mr. Speaker, I rise on a point of enjoyment and a point of privilege. I am sure all members of the Legislature will want to welcome in the gallery, first, Eileen and Bob Rae, and, of course, the newly elected member for Hamilton West, Richard Allen.

Richard Allen's victory has been widely reported as a protest victory. I want to assure members that it is much more than that. As all members of this Legislature get to know Richard Allen as a colleague, they will recognize his dedication, diligence and, if I may say so, his intelligence.

Mr. T. P. Reid: It will make a nice change from the usual NDP member.

Mr. Martel: You would have difficulty in recognizing it, Pat.

Mr. Speaker: Order.

Mr. Foulds: In spite of the heckling from the rabble here to my right -- who I remind the House came third -- forgive us in the New Democratic Party if we live for a few moments in the reflected glory of Richard Allen and his victory. I am sure his contribution to this Legislature will be a positive and productive one, and I am sure all members will join me in wishing him a long and distinguished legislative career.

Mr. Peterson: Mr. Speaker, on the point of view brought up by my colleague, I would like to add the congratulations of my party to Dr. Allen. I have not had the privilege of meeting Dr. Allen, but I can say that from everything I have heard he is an outstanding individual and will serve the process well here at Queen's Park.

I would remind him that we are at Queen's Park and not in Ottawa. I am glad he drove here this morning rather than taking a plane to Ottawa by mistake. I want to say it was a great fight. It was well waged, and I am looking forward to getting to know Dr. Allen personally, as I enjoy so much knowing all of the members of this House. All of us in our own way are working together for the betterment of Ontario.

Hon. Mr. Welch: Mr. Speaker, I have already had the opportunity of meeting Dr. Allen this morning and, indeed, the privilege of introducing him to a group of students from the constituency of Brock who are here from Oakridge Public School in St. Catharines. Those students will get special marks in current events for having had that opportunity to meet him this morning as he was climbing the stairs to take his place in the gallery to be welcomed here in the Legislature.

I also introduced our students to the Solicitor General (Mr. G. W. Taylor) and my neighbour the member for St. Catharines (Mr. Bradley). It was an all-party group although I hope they do not represent that all-party group necessarily at the appropriate time.

I do not think it is necessary this morning, in keeping with the spirit of the democratic process, to try to analyse what may or may not have been the motivation of voters yesterday. The fact is they elected Richard Allen and we congratulate him.

Mr. Mackenzie: The government's budget was lousy and the people told you so.

Hon. Mr. Welch: Whatever the reason, no doubt there will be many opinions shared. We should not lose sight of the fact that very capable people offered themselves before the jury of Hamilton West. Among them was Robert McMurrich, who carried the banner of this party with great distinction.

I thought Bob McMurrich was quite the gentleman last evening as he conceded the results. We on this side of the House rejoice with our friends of the third party in the election of Richard Allen. We look forward to our colleague joining us in the Legislature as we engage in the cut and thrust of debate.

Mr. Bradley: Guess who wishes he had run in Hamilton West now?

Mr. Laughren: We want to hear from Frank.

Mr. Mackenzie: We want the Treasurer.

Mr. Speaker: Order.

VISITOR

Mr. Speaker: Before proceeding, I would ask all members of the Legislature to join with me in welcoming Sir Isaac Hyatili, Chief Justice of Trinidad and Tobago, who is in the Speaker's gallery.

[Applause]

STATEMENTS BY THE MINISTRY

JOB CREATION PROGRAM

Hon. Mr. Pope: Mr. Speaker, I would like to bring the House up to date on what my ministry is doing in the Bancroft area to help those workers facing layoffs as a result of the announced closure of Madawaska Mines. My ministry is working with Madawaska Mines to find alternative employment for the 390 workers who will be laid off at the end of this month.

Members may recall that I announced a new federal-provincial job creation program to assist unemployed workers in the Ontario mining industry in April. It was developed in conjunction with the Ontario Ministry of Labour to serve as a bridging measure, allowing companies to rehire skilled workers who are receiving unemployment insurance.

Under this program, I was able to take advantage of a section of the federal Unemployment Insurance Act to allow workers to receive 25 per cent more than their allowable benefits. In addition, my ministry, through the Board of Industrial Leadership and Development, will contribute $60 per week plus 100 per cent of the sponsor's share of benefits such as Ontario health insurance plan, workmen's compensation and Canada pension plan.

10:10 a.m.

Under the special mining employment program, 13 projects are being prepared which will employ about 70 people in the Bancroft area. These projects will employ workers at rehabilitation activities instead of their usual work, which would increase the inventory of that company. Even more projects will be developed in the coming weeks.

Some of these short-term jobs are designed to provide work for professional staff from the mine, such as producing data series maps, duplicating mine plans and sections for my ministry, and cataloguing diamond drill cores.

Another of my ministry's initiatives is the accelerated forest improvement program. This program allows companies to rehire skilled workers who are receiving unemployment insurance. We have been negotiating many agreements throughout the province under this program and continue to welcome applications. Any applications we receive from the Bancroft area will receive immediate consideration. As I have mentioned, there are already 13 section 38 proposals ready to go.

In addition, we are negotiating with the federal Department of Employment and Immigration for two new federal-provincial employment programs. The fisheries enhancement program and the parks maintenance employment program are available to companies, municipalities, conservation authorities and other organizations that are able to hire workers receiving unemployment insurance. Proposals have already been reviewed under these programs and, again, any submissions we receive from the Bancroft area will receive immediate attention. A minimum of $4 million will be provided through BILD for these programs. This program will be applied in the Bancroft area.

While these special employment programs are vital to ensure that there are skilled workers in Bancroft when the economy recovers, my ministry is also supporting some longer-term initiatives. For instance, BILD has agreed in principle to offer up to $675,000 to Canada Talc Industries Ltd. of Madoc through my ministry's $7.7-million small rural industrial mineral development program. Under this program, the Ontario government is offering to fund up to 25 per cent of approved capital costs of projects that expand Ontario's industrial minerals production and offer new jobs.

Canada Talc, which has been producing talc and dolomite products since 1896. plans to invest $2.7 million. This will assure continued employment for its 23 workers and provide work for an additional 14 employees by the end of this year. Canada Talc also plans further expansion in the mid-1980s. Of course, the multiplier factor will mean an additional 45 jobs for that community.

Under the industrial mineral inventory program, we have identified two graphite deposits in the Bancroft area. We are discussing possibilities for the development of these deposits with the private sector.

We also plan to start construction of our drill core libraries in Bancroft and Tweed this year to create construction jobs. Originally, the libraries, another BILD initiative, were to have been built in 1984.

Another of our long-term projects involves the forestry sector. Through letters and advertisements, my ministry has invited potential investors to consider the possibility of a kraft pulp or reconstituted board mill in the Bancroft area. Such a mill would make use of one million surplus cords of mixed softwood and hardwood, which is more than the existing industry can use on an annual basis. To date, I have received replies from two interested companies, and I am confident that I will be receiving more in the near future. We will accelerate our efforts to get this project under way. It could result in bush jobs for 400 people and mill jobs for another 150 people.

I might add that representatives from Madawaska Mines are endeavouring to find work for the Bancroft area employees. It is my understanding that Rio Algom Ltd., Hudson Bay Mining and Smelting Co. Ltd. and Nanisivik Mines Ltd. have offered employment to at least 70 underground miners in the Bancroft area.

The local chamber of commerce also will be involved in a project to develop a walkway along the York River.

As honourable members can see, it is not only my ministry that is trying to find employment for these workers. We are all working together, both the public and the private sector.

The Ministry of Natural Resources is not the only ministry helping out. The Ministry of Government Services has a number of construction projects, some beginning this month, which are expected to employ about 110 people for one year in Bancroft and the surrounding area.

The Ministry of Municipal Affairs and Housing is also doing everything it can to employ the workers on job creation programs that it has pending or ongoing in that area. In addition, officials from the plant closure and employment adjustment branch from the Ministry of Labour are working in Bancroft and the surrounding area to assist in finding employment for some of these workers. As such, they are part of the federal manpower adjustment committee, which has representatives from both labour and management. They are also participating in an employee counselling program that is being developed in conjunction with Madawaska Mines and Loyalist College in Belleville. The program is funded by the Ministry of Labour, delivered by the college and co-ordinated through the Ministry of Colleges and Universities. They will offer both career adjustments and job search components to assist employees in looking at training and career options.

As members can understand, we are doing everything possible to help put laid-off workers in the Bancroft area back on the job. I will bring the House up to date as we develop more programs to assist with these problems, not only in the Bancroft area but throughout the province.

TOLL-FREE INFORMATION PROGRAM

Hon. Mr. Wiseman: Mr. Speaker, I would like to take this opportunity to share with the House a new undertaking by my ministry to provide the people of Ontario with an additional service in the area of government access. As I am sure most members of the House are aware, the government of Ontario has been providing toll-free service to all Ontarians for the past two years. At the request of the federal government, and in keeping with our continued effort to bring the government closer to the people, we have entered into a joint agreement to provide information access to federal programs for more than eight million citizens in the province.

The Ministry of Government Services staff will now respond to all general telephone inquiries throughout the province for both levels of government. Zenith Ontario, with the addition of Zenith Canada responsibilities --

Mr. Philip: On a point of order, Mr. Speaker: I have not received a copy of the statement. Perhaps it was sent around to my mail box. Could the minister tell us when it was sent?

Hon. Mr. Wiseman: It was my understanding that my critics had it. I am sure my executive assistant has heard that and will send it over right away.

Zenith Ontario, with the addition of Zenith Canada responsibilities, will now offer a more total information service to the people of the province. I know all members of this Legislature are devoted to offering the best possible service to the people they serve. It is my pleasure to inform them that my ministry has taken yet another step in that direction with this toll-free information program.

ORAL QUESTIONS

RETAIL SALES TAX

Mr. Peterson: Mr. Speaker, I have a question for the Treasurer. In view of the great confusion surrounding the implementation of the new Retail Sales Tax Act and a lot of its provisions as they apply to various purchases, particularly food, and in view of the fact the bill is now going to a committee for review of some of the substance as well as the technical provisions of that bill, would the Treasurer hold off its implementation until, say, July 12, or after that bill has received third reading by this House, so that it is definitely the law and we will have a month to work out all the complications that have been created?

Hon. F. S. Miller: Mr. Speaker, it is my understanding that most of the provisions are in force right now, and we would only add to the confusion by trying to make a retroactive cancellation.

Mr. Peterson: We would not add to the confusion because it is so confused now. We could clear up that confusion. That is the whole point of the question.

In the event changes are made in the Retail Sales Tax Act, which I expect will happen, what sort of compensation would the retailers and consumers get who have paid taxes it turns out are not going to be collected? If a tax is rescinded for an item, how would the retailer receive compensation, or how would the consumer receive compensation? There are a lot of technical problems here. How is that going to be dealt with?

Hon. F. S. Miller: These are questions I think should be directed to the Minister of Revenue (Mr. Ashe), because he deals with those technicalities. I deal with the principle of the act.

A good deal of the confusion is that which the opposition is trying to create.

Mr. Foulds: Mr. Speaker, can the Treasurer or the Minister of Revenue explain to us how anything could add to the confusion of the Minister of Revenue as displayed in this House yesterday?

Hon. F. S. Miller: Mr. Speaker, the member simply has to stand up and he does that.

10:20 a.m.

Mr. Peterson: As well as the technical problems I referred to, there has been a major change in philosophy through the Treasurer's budget.

In 1973, John White talked about taxing a variety of things and exempting them then, such as the flow of information and flowers and shrubs the Treasurer is now taxing. His quote of 1973 is particularly poignant: "I propose to eliminate the retail sales tax on the purchase of household pets. Personally, I find it abhorrent to put a tax on these lovable creatures which become in effect members of our families." Would the Treasurer consult with Mr. White? Perhaps Mr. White could move him to back off on some of these iniquitous taxes.

Hon. F. S. Miller: The Leader of the Opposition has made my point for me. First, he has pointed Out that both flowers and pets were taxed in the past. Therefore, I have not made some sweeping, dramatic change. I have simply reinstituted a tax that was in place. Second, he has pointed out that the Treasurer --

Mr. Speaker: Order. I ask the cameraman in the Speaker's gallery to refrain from using that portable spotlight.

Hon. F. S. Miller: He was taking the spotlight off the leader of never-ever and putting it on you, Mr. Speaker.

Interjections.

Hon. F. S. Miller: "The Benches Would-Be" member is missing today too. She is getting ready to retire, I suppose.

From time to time, Treasurers of the past have made selective tax changes which in their opinion either met the requirements of the day or were simply expressions of their personal likes and dislikes at a particular time. Mr. White eloquently illustrated that in this budget. He also talked about his love of cut flowers.

Mr. Foulds: You will tax love next.

Hon. F. S. Miller: If I could, I would.

Mr. Foulds: You would if you could?

Mr. T. P. Reid: That's because you have never had to pay.

Mr. Martel: That's why they call you Grinch.

Mr. Mackenzie: Just because you are no longer capable.

Mr. Speaker: Order.

Hon. F. S. Miller: If the members want to see complicated regulations, get into that topic.

We are bringing back some things that even I had taken out, for example insulation and storm doors. One might quickly ask why I took it out three years ago and put it back in now. There was a point in our provincial life when, thanks to my colleague the Minister of Energy (Mr. Welch), we made a concerted drive along with federal grants which were in the main successful. While that dramatic use of insulation was at its peak, we took the tax off to achieve policy goals. As that demand changes, we alter the pattern.

Surely the member for London Centre, as a responsible Leader of the Opposition, would ask this government to change its points of view as times change.

Mr. Peterson: John White liked cut flowers and puppies. The Treasurer likes used car dealers. John White was the true aristocrat.

HYDRO CONTRACTS

Mr. Peterson: Mr. Speaker, I have a question for the Minister of Energy, pursuing the question my colleague the member for Grey-Bruce (Mr. Sargent) asked yesterday.

As the Minister of Energy, how does he justify paying above world price through Ontario Hydro to Denison Mines for certain uranium contracts when he is not prepared to pay it to Madawaska Mines to keep that community going? He is going outside Ontario to buy that uranium. How can the minister justify those two different positions? He is prepared to pay more than world price on the one hand but not on the other.

Hon. Mr. Welch: Mr. Speaker, the contracts to which the Leader of the Opposition makes reference were the subject of a thorough review by an all-party committee of this House. There was a formula arrangement with respect to that determination.

Interjections.

Hon. Mr. Welch: The point I am getting at is that it is all set out in the agreement with respect to how we would arrive at the price, taking into account costs of production and all the detail that is set out in the arrangement.

Hydro sent out for bids in December of last year for its requirements starting in 1985. Those bids have come in and Hydro has analysed them on the basis of the current market situation, which I assume the member, as an electricity customer, would want them to do. I remind him, as I reminded his colleague and our legislative colleague yesterday, Ontario Hydro at the moment is looking to Ontario sources for 85 per cent of its requirements until the end of the 1990s. When this particular contract falls into place, it will be two thirds Ontario and one third other Canadian sources.

Mr. Peterson: By current standards the government is still overpaying dramatically for that Denison uranium. The fact is, there was considerable disagreement in the committee as it reviewed that contract and we recommended that the minister not go ahead. It was this government that took the responsibility of going ahead, not us. The reality is we are losing a mine. At that time this minister suggested the possibility of implementing an excess profits tax in order to recoup any losses. Is he considering that now, in view of the dramatic increase in profits for Denison over the last couple of years, resulting exclusively from contracts that he signed?

Hon. Mr. Welch: No, Mr. Speaker.

Mr. Foulds: Mr. Speaker, could the Minister of Energy tell us why Ontario Hydro has become so cost conscious when it comes to the Madawaska mine in the little town of Bancroft, since it was not so cost conscious when at the urging of this government it signed the contracts with Denison and Rio Algom, and is not now, when it comes to the escalating price of the nuclear installations themselves, such as at Darlington?

Hon. Mr. Welch: Mr. Speaker, I think it should be said right at the outset that Ontario Hydro is always cost conscious. One must analyse all the arrangements into which Hydro enters at the time that those negotiations are going on. Hindsight is always a great and interesting perspective.

Mr. Foulds: They wanted to buy it. Why didn't you let them?

Hon. Mr. Welch: I am saying to the member I am quite satisfied that Hydro, as it meets its responsibilities, is very cost conscious. As the member knows, each year when it submits its proposals for the next year's rates it has to submit all of that information to the Ontario Energy Board for public review.

Mr. Peterson: Would the minister not agree it is time to reconstitute the select committee on Ontario Hydro affairs to look into these uranium contracts and the Madawaska situation? Would that not assist him in some way to bring Hydro to heel in these matters to make sure that public policy is being actively reflected through that group? If we reconstitute that committee, we will help the minister deal with Hydro.

Hon. Mr. Welch: I really appreciate that offer. There have been two or three occasions this week in which the Leader of the Opposition has been kind enough to offer to assist the government. The government takes the responsibility of being the government and will be accountable and will face the jury, known as the electorate, at the appropriate time. Although I appreciate the spirit in which the offer is made, I am quite prepared to stand in my place each day and account, as is my responsibility, for the activities of Ontario Hydro.

TAX ON MEALS

Mr. Foulds: Mr. Speaker, I have a question for the Minister of Revenue, Ayatollah Ashe. I would like to ask the minister, will he now admit that when he tried the NDP quiz yesterday he was a total failure -- as his government was shown to be last night in Hamilton West -- and that he was wrong when he said the chicken which is barbecued and sliced at the favourite grocery store of the Minister of Health (Mr. Grossman), Nortown Foods Ltd., was taxable and should be taxable? Can he tell me why Swiss Chalet chicken at $2.95 is taxable and why chicken at $4.03 at Nortown Foods Ltd., which is sliced and barbecued, is not taxable?

Hon. Mr. Ashe: Mr. Speaker, I hope the deputy leader is going to send over the samples afterwards so that I can have a lunch today that perhaps is appropriate.

Mr. Martel: You failed the quiz.

Hon. Mr. Ashe: As a matter of fact, I did the quiz yesterday for the benefit of the press outside, and I did very well, probably better than anybody else, including the ones over there.

10:30 a.m.

Mr. Martel: You missed out on the one question. You did well?

Hon. Mr. Ashe: No. Unlike the members of the third party, we in the government do not acknowledge that we know everything about everything. Those people think they do, but we do not.

Mr. Martel: You said the people should know the regulations; you didn't know them yourself.

Hon. Mr. Ashe: There is no doubt there is still some confusion, and I will use that word. Vis-à-vis the chicken, there is no doubt in my mind at all that a chicken that is barbecued, is a chicken that is barbecued, is a chicken that is barbecued.

Mr. Foulds: Right, like a Liberal is a Liberal is a Liberal.

Hon. Mr. Ashe: That is true. That is a very good analogy.

Mr. Foulds: Should the Liberal or the chicken be taxed?

Hon. Mr. Ashe: Both of them.

Mr. Speaker: Will the minister just address himself to the main question, please?

Hon. Mr. Ashe: Yes, Mr. Speaker. The issue is still being clarified, but there is no doubt in my mind that if one buys a barbecued chicken out of a machine, basically the same machine that is in one part of a Dominion store or, in this case, Nortown Foods Ltd. -- I will be very honest too; yesterday, since a minister is unable to ask a question, I frankly did not know what kind of an establishment Nortown was. Obviously my conclusion was a little different after I found out what it was.

In any event, I would concur that a barbecued chicken from Nortown, a barbecued chicken from Swiss Chalet or a barbecued chicken out of the snack bar of a Dominion store are all the same product and should carry the same line of tax if one looks at the commodity as such. There cannot be any disagreement with that conclusion.

What we are clarifying with the Ministry of Treasury and Economics is the intent; and keep in mind that it is our obligation in the Ministry of Revenue to take the intent of the Treasurer's budget and implement it. Apparently there may be some difference as to the intent, and in actual fact the determination of whether or not there is tax should be determined as to the main operation of that particular establishment.

When one is talking about food products of that nature, it is now our understanding that it was the intent of Treasury that if it is predominantly a grocery store it would not be taxable, but if it is predominantly a restaurant, a take-out food establishment or a snack bar, it would be taxable.

There is no doubt about their interpretation, using that example and in finding out now that Nortown Foods Ltd. is a grocery store, that one would not be taxable and the other one would be.

Mr. Foulds: If we had known the minister was coming for lunch, we would have bought a turkey instead of a chicken. We will let him have the tax-free portion.

Can the minister please stop this roundabout gobbledegook about the spirit and intent of the budget and tell us clearly, for example, whether he was accurately quoted in the Globe and Mail story where he said, 'The solution is to tax prepared foods wherever they are bought"? Surely he should be going the other way and withdrawing the tax on prepared foods, such as frozen pizzas, frozen cakes or barbecued chicken, wherever they are bought -- in grocery stores, delicatessens or take-out restaurants.

Hon. Mr. Ashe: As the honourable member knows, that question relates to a change of policy that would have to come from the Treasurer.

Mr. Breithaupt: Mr. Speaker, following the point that I raised yesterday with the minister concerning the bakery situation and the purchase of either a dozen items or one or two, or perhaps five, some of which might be taxable and some of which might not, is the minister now able to advise us whether he is going to clarify the circumstances in those kinds of purchases so that those persons expected to collect taxes will know what their obligations are?

Hon. Mr. Ashe: Mr. Speaker, the interpretation that I just described vis-à-vis the business establishment rather than the commodity will apply. In other words, if somebody goes into a bake shop to take out, whether it is two, three, five, six or 12 --

[Failure of sound system].

Mr. T. P. Reid: They're running the minister's answer backwards; it makes more sense that way.

An hon. member: It's a lie detector.

Mr. Speaker: Order.

Hon. Mr. Ashe: Mr. Speaker, I am not sure whether that was a turkey or the member for Hamilton Centre (Ms. Copps) slowed down. But back to the question --

[Failure of sound system].

Mr. Speaker: Will whoever is making that sound in the press gallery please --

[Failure of sound system].

[Later]

Mr. Speaker: Just before proceeding, I would like to withdraw the allegation I made earlier against the members of the press gallery.

Mr. Martel: The Minister of Revenue drove the machine crazy.

Mr. Speaker: Order. Apparently the sound system is on the fritz again.

Hon. Mr. Ashe: I will try again, Mr. Speaker. I do not think the system is working at all now, but I can project.

If one is going into a bakery shop, the numbers in question will not be the criterion. If it is a take-home type of item; whether one is buying two, five, six or 12, they will not be taxable. On the other hand, if one is buying it to sit there and eat it or if it is going to be buttered -- whether it is one or two really is not the criterion -- the fact that it is a consumed, prepared product means it will be taxable.

Mr. Foulds: A quote has been attributed to the minister in the Toronto Star which he has not denied so far. He is quoted as saying that when it came to taxing pizzas and their delivery, "However, if the delivery charge is incorporated in the price of purchase, it is taxable but too hard to figure out."

In view of that, will the minister now admit that there is such confusion in his own mind and in the minds of his officials that he will suspend the implementation of that tax until the public hearings have been completed in this Legislature, until the legislation itself is passed and until those guys in the Ministry of Revenue have enough time, two months after the budget, to get their act together and to have the regulations clearly spelled out and clearly defined so the people collecting the tax know what it is they have to do?

Hon. Mr. Ashe: Before answering the final part of the question, some clarification of the initial example is in order. The question actually pertained to the delivery charge per se. I think my answer was quite reasonable, although it may not have been portrayed exactly in that way.

Quite often in the case of take-out food there is a posted price, which is how much it is if they deliver it; if one picks it up, it is something cheaper. Presumably the difference is "a delivery charge," but they handle it the other way around. What I said was that there is no way we are going to try to break out that delivery portion and put a tax on it, although strictly speaking it is taxable; we are not going to bother with that kind of situation at all.

Similarly, some unclearness came about in one report I heard on the radio this morning which suggested that where a pizza is bought at a food market and it is put in their basket, it is tax-free -- I do not think that was in dispute -- but that if the whole order is delivered, the whole order is taxable. That was the impression that was given but, of course, that is definitely not the case. Frankly, how anybody could arrive at that conclusion, I do not know. It is definitely not the case.

10:40 a.m.

As to whether we will be postponing implementation of the amendments to the Retail Sales Tax Act, no, we will not. I suggest to the member that most retailers and consumers in the marketplace have no confusion about taxable items in 99.9 per cent of the areas, albeit there is still a little confusion in a very narrow sector and that will be clarified.

As I have indicated publicly through the press, and I guess indirectly in here, in those areas where there may still be some confusion we are not going to be difficult with the vendor. As I have indicated in the past, we want to work with him. There will not be repercussions for him if he does or does not collect the tax.

In terms of the vendor protecting himself, if he does collect the tax, he does have an obligation to remit the tax. In other words, he cannot later make a determination that something was not taxable and, therefore, he should not have taxed that and keep it as an extra profit. He definitely has to remit it in his normal tax remittance to the government.

EMPLOYEE HEALTH AND SAFETY

Mr. Martel: Mr. Speaker, I have a question for the Minister of Labour. Is the minister aware of the asbestos problems at Surrey Place, which is a treatment centre for emotionally disturbed children in Toronto?

In particular, is he aware that when his ministry's tests showed 50 to 75 per cent chrysotile asbestos was present in insulation material and workers began ripping this insulation out on May 24, not only the workers who were taking the material out but also those people such as caretakers who had to clean it up nightly were doing so without protective equipment?

Is he also aware that seven children went back to their residence on the second floor each night, where some of this material was lying around on the floor and in the area, and they were exposed to it?

Hon. Mr. Ramsay: Mr. Speaker, I am familiar with the original intention to correct the situation in that institution. I am not aware of the cleanup procedures the honourable member is describing.

Mr. Martel: Will the minister agree with me that some immediate action is necessary in there, since it was only yesterday that he reported to us that the staff and children are still working and playing in the area where the asbestos material and dust was present? I show the minister this doll which one child was playing with yesterday; it is covered with asbestos. Is there not something sadly amiss in Ontario when that can still occur when we know the results that are caused from exposure to asbestos?

Hon. Mr. Ramsay: The member opposite is bringing forward a very serious matter, and I agree with the comments he is making.

The orders were given to clean up the situation, to straighten it out. I really do not think it should be the responsibility of the government to put an inspector right in there each and every day to make sure the construction workers are cleaning up at the end of every day. I would like to think it would be the responsibility of the institution to make sure that is being done properly.

Mr. Martel: The minister makes the point that they were ordered to clean up. I will also show the minister the face mask used by the workers who were cleaning up. It is not a respirator, nor is it a double-gauged face mask or anything like that to protect people from inhalation. It is a little mask that someone might use when out catching butterflies or something like that.

Is the minister aware that even now, as of yesterday, they were still not bagging the material properly, that the dust masks being used were this type of mask, which is nothing that would pass any regulation, and that the workers were not provided with impermeable clothing?

I guess I want to ask the final question because this is the third instance on asbestos I have brought up in the past couple of weeks. When the hell are we going to get serious about cleaning this up in this province? If we have to lay a few charges, let us lay a few charges so the people who do this will stop and will know that this ministry means there will be no more exposure to asbestos.

Hon. Mr. Ramsay: I realize this is not a direct answer to the member's question, but the interim regulation on asbestos promised by my predecessor, now the Minister of Consumer and Commercial Relations (Mr. Elgie), is close to completion after going through the necessary procedural steps. We hope to have that in place within a few weeks. Once that is in place, I think we will have a better opportunity to monitor the situations the member is bringing forward to us.

ONTARIO DEVELOPMENT CORP.

Mr. Riddell: Mr. Speaker, if you are having trouble with the sound system you do not need to worry about it for this question. As I listened to the questions about the chickens and Nortown Foods, my mind mischievously conjured up an analogy notwithstanding its appropriateness: Bob Rae and the Hamilton West riding.

Mr. Speaker: Now, do you have a question?

Mr. Riddell: Mr. Speaker, I have a question for the Minister of Industry and Trade. Since it was more than a week ago that I drew the minister's attention to the closing of an industry in the Huron Industrial Park, a park owned by the Ontario Development Corp., I had expected the minister might have made a statement this week. However, having pursued the matter on a more personal basis with the minister, I would now like to ask him whether he has had a chance to check into the employees' allegation that the Hughes Boat Works Inc. could have received a cheque for a large boat it sold and could have met the payroll, but the company decided not to receive that cheque.

Can the minister also enlighten us as to the allegations of the employees that deductions had been made for some time from their paycheques for the Ontario health insurance plan, unemployment insurance, the Canada pension plan, long-term disability with a mutual life insurance company and bonds but that these deductions were never remitted? Can the minister please indicate whether these allegations are well-founded?

Hon. Mr. Walker: Mr. Speaker, I do not know whether that was a chicken or a turkey referred to in the other party a moment ago. I would like to clear up that matter.

The honourable member has raised the question about whether a statement would be forthcoming --

Mr. Foulds: The last statement, about nine jobs, was not so hot.

Hon. Mr. Walker: They are important. Most people think those are very important. Many people would have seen the value of that.

I had intended on Tuesday to answer a question on the matter and had sent a note to the Speaker, but the time expired before I had a chance. In fact, the Speaker has a note in his hand this very minute that relates to a question I am prepared to answer. I do have some information for the member.

The member raised the matter about a week ago as it related to the Hughes Boat Works Inc. at Centralia, a company that has subsequently had a receiver brought in. The question raised at the time was whether the Ontario Development Corp. had forced the company into receivership, to which the answer, of course, is no.

The member knows well, because of our personal conversations, that the company itself requested a receiver be appointed. It was the company that contacted the bank and the Ontario Development Corp. to ask that a receiver be appointed to stabilize its situation. The bank invited in a receiver and refused to meet the obligation. The bank basically called the loan; so, to the extent that there is any direct responsibility, it would be attributable to the bank, which does answer the allegation by the member last week.

10:50 a.m.

A second allegation that was made related to the matter of whether the receiver appointed was somewhat too close to the situation, having apparently worked with the company at some earlier time. We have investigated that matter and we have been able to determine that the receiver, Yale and Partners, apparently had been an employee of the company, but it was well beyond the two-year limit that is required under the Bankruptcy Act. The Bankruptcy Act would step in in a case like that and permit the company to be added on; so there would be no apparent conflict. There may be other conflicts -- I am not saying that; all I am saying is that it is beyond the question of the two-year bankruptcy rule.

As to the matter of the special cheque that apparently had been given, it was indeed thought that it was this particular 40-foot boat, which cost $105,000, that had plunged it into bankruptcy. It would appear that the cheque had not been received. We have not got a final verification, because of course we are not privy to every single book that is there, but our information is that there is no foundation for the allegation that the cheque had been received and not properly applied.

That is the information we have at the moment. We are still checking out other matters the member raised in a letter he handed to me on Tuesday of this week.

Mr. Riddell: Since a majority of the employees who worked at Hughes Boat Works also rent houses in Huron Park, again a park that is owned by the Ontario Development Corp., could some kind of arrangement be made whereby rent might be waived on those homes until the employees either find other jobs or start receiving unemployment insurance, or, indeed, go back to work for the company, since I understand there are one or two other companies that may be interested in buying it from the receiver?

Will the minister see that concessions are given to those employees so they will not be forced out of their homes at Huron Park because they do not have a paycheque to pay their rent?

Hon. Mr. Walker: I think it is reasonable to say that under any kind of tenancy we might have with them it is highly unlikely that there would be any immediate removal of tenants for nonpayment of rent. There would come a point where the matter would have to be sorted out, and I can assure the member that we will look at every contingency in the matter.

I think he will find that the development corporation is very humane in dealing with people in these matters. Of course, they have to protect the ultimate shareholder, that shareholder being the public of Ontario; so we have a certain responsibility there that has to be acknowledged. On the other hand, we recognize some of the difficulties existing in this peculiar case.

EMPLOYEE HEALTH AND SAFETY

Mr. Mackenzie: Mr. Speaker, I have a question of the Minister of Labour. Is the minister aware of the rather profound implications of the ruling of Judge Nosanchuk in Essex county provincial court on June 11 concerning worker exposure to asbestos, where he clearly stated that the Health and Safety Act is no protection for workers without the establishment of regulations?

Did the minister's staff bring to his attention the judge's conclusion, which stated clearly, "Hopefully, in the not-too-distant future there will be rules and regulations enacted in the province of Ontario setting out standards"? The judge was dealing specifically with asbestos in that case, but can the minister tell us where we stand with coke oven emission control standards?

Hon. Mr. Ramsay: Mr. Speaker, to respond to the last part of the question first: As far as coke oven emissions are concerned, standards are in the final stage of the procedures and were studied by the Advisory Committee on Occupational Health and Occupational Safety just a week and a half ago. We are expecting the report back in our office at any moment. In fact, we had thought it might be there yesterday; it may be there today. Once it is back in our office, a regulation will be prepared and sent to the regulation committee. Following that it will go to cabinet. In other words, I think we are extremely close to having a regulation on coke oven emissions.

With respect to the regulation on asbestos, I believe I answered that in my response to the earlier question from the member for Sudbury East (Mr. Martel) when I said that my predecessor had promised an interim regulation and that he would not wait until the Royal Commission on Health and Safety Arising from the Use of Asbestos in Ontario submitted its final report. In that respect, I am very optimistic that we will have an interim regulation for asbestos, again within the next number of weeks, certainly before the fall.

If I could respond to the first portion of the member's question as to the decision of the courts, I would like to make this observation: In dismissing the charges against the board of education and one of the board's supervisors, the provincial court did not conclude that the Occupational Health and Safety Act affords no protection to workers handling hazardous substances as is suggested in the communiqué of June 16. The communiqué I am referring to is the press release put out by the leader of the third party, Mr. Rae.

The court found that the prosecution had failed to prove beyond a reasonable doubt that the worker had been exposed to any actual or potential health hazard. The court did observe, and I think this is where the confusion comes in, the fact that the regulation dealing with asbestos and its handling was still not finalized in such a way that it would provide a proper basis upon which a court might determine whether an offence was being committed. However, the court did not hold that a violation of the act could not be established in the absence of such a regulation.

Mr. Mackenzie: Surely the minister is playing games with this House. All along, our problem has been the lack of regulations. Why should we accept this "It is in the process" answer again?

I have in front of me a letter dated February 4, 1977, from the then minister, the member for York Mills (Miss Stephenson), telling us that the standards for coke oven emissions was imminent. I have a letter from the Premier (Mr. Davis) to Local 1005, dated May 1979, telling us that the coke oven emission standards were imminent. It is now 1982 and the Minister of Labour is telling us that it still has not come back for the final round in cabinet and its gazetting.

Surely to goodness the minister can tell us that we have played with this long enough, for otherwise he is really lying to the workers of Ontario, and that we will have it before this session is up this June.

Hon. Mr. Ramsay: In response to the suggestion that we will have it before this session is up, I am hopeful of that. I held a meeting in that respect before coming to the House today. I am hopeful, but I do not want to give the member an absolute commitment.

Mr. Mackenzie: The minister has given us too many promises over too many years.

Mr. Speaker: Order.

Hon. Mr. Ramsay: I can only speak for the promises that I have made. The promise I am making this morning, the commitment I am personally making this morning, is that the coke oven emission standards will be with us extremely shortly, and the asbestos interim regulation will be a very short while past that. I am hopeful that the standards for coke oven emissions will be here before this House adjourns.

A few minutes ago I found out that we are not adjourning until July 9; therefore, I am more optimistic than I was yesterday that we can meet that obligation.

I am just as concerned and as interested in the coke oven emissions as is the member for Hamilton East. I also have a steel mill in my constituency.

If I could respond further to the question that was asked of me, I know the member knows this backwards, and probably knows it much better than! do, but if he will look at pages 13 and 14 of the Occupational Health and Safety Act, sections 12 and 14, and if he will refer to page 109, section 145, those will answer the first part of the question he put forward to me in his supplementary today.

CHEMICAL SPILL

Mr. Ruprecht: Mr. Speaker, in the absence of the Minister of the Environment (Mr. Norton), I am going to ask the Deputy Premier about the chemical spill that happened this morning in the Junction triangle area. I wish to register my strong disappointment in this government's inability to cope with these continuing spills.

Here is my question: Given the similarity of this spill to the one that occurred on April 6, 1982, from the Nacan Products Ltd. plant, when will the minister take action to ensure that this type of incident will not occur in the future?

11 a.m.

Hon. Mr. Welch: Mr. Speaker, obviously I cannot provide that information, but! will draw the question to the attention of the Minister of the Environment (Mr. Norton). It seems to me I heard some reports on the news this morning that investigations were under way to try to determine the source of this difficulty. They were doing some flushing out of sewers and that sort of thing. I am only echoing reports I am sure the honourable member himself heard on the news this morning. However, knowing his concern -- and obviously it is one that will be shared by the Minister of the Environment -- I will draw this to the minister's attention. No doubt, he will be able to respond to it on Monday.

Mr. Ruprecht: May I suggest that investigations are no longer good enough. The Deputy Premier must realize that the spills bill received third reading in December 1979. We contend that if this bill had been proclaimed, this type of incident would never have occurred. While this government is fooling around with people's lives in a way, because people have been hospitalized, this situation continues to occur.

Mr. Speaker: Supplementary, please.

Mr. Ruprecht: The question is simple: When will the government introduce those sections that provide teeth in the spills bill that received third reading in December 1979?

Hon. Mr. Welch: I will include that in my reference to the minister. However, I do not feel that anyone would take seriously the idea that the member has a monopoly on concern. I am sure this concern is shared by us all. I will refer his question to the Minister of the Environment.

CHARGES AGAINST JUDGES

Mr. Renwick: Mr. Speaker, my question is for the Attorney General who, I believe, is within the sound of my voice. My question relates to the miscarriage of justice in the case of the three justices of the peace, Howard Wax, Robert Hirtle, and Herbert Spong, and the settlement by way of compensation of $417,000 relating to that matter. The minister will recall that in 1977, these men were charged with conspiracy to obstruct justice by fixing traffic tickets, and a series of court proceedings, including preferred indictments by the Attorney General, were made against the three men. Two of the cases resulted in direct acquittals, and in the third case a stay of proceedings took place.

What went wrong in that case, and why is the minister not reporting to this assembly an exhaustive statement of the course of that investigation, which led to this serious miscarriage?

Hon. Mr. McMurtry: Mr. Speaker, these cases were processed in a very responsible fashion. I believe the trials resulted in the way the member for Riverdale has stated. I was outside the House when he started to ask his question. The main problem area is that these people were suspended without pay. If my memory serves me correctly, the decision to suspend them without pay was something that involved the Justices of the Peace Review Council. In any event, given the fact these three people were acquitted, we have been negotiating a settlement with the lawyers representing the three JPs.

It is my understanding that a satisfactory settlement has been arrived at. In view of the relevant legislation that gives us authority to pay for such a settlement, their lawyers were instructed to issue a writ, in effect, after the settlement, in order that it might be completed. I gather that two of the settlements have been concluded. I am told the third settlement has been held up. I read some press reports in relation to that, but as far as I know, our law officers still expect a settlement to be concluded.

Mr. Renwick: An injustice was caused to all three of those justices of the peace because of their suspension without pay from the performance of their duties over a long period of time. What is the obstacle which has led to the delay, and why will the Attorney General not recommend the reinstatement of the three men to their positions?

Hon. Mr. McMurtry: I am not prepared to discuss all of the details of the matter at this time, particularly as it would appear there are still some negotiations with respect to the settlement of the third claim.

I think one of the unfortunate aspects of this matter was the long delay prior to trial, most of which resulted from requests for adjournment by defence counsels. As a result the matter was unfortunately and I think unnecessarily protracted over a long period of time. I do not accept the member's statement that an injustice has been perpetrated.

Mr. Breithaupt: Mr. Speaker, since we have had the precedent of circumstances whereby certain judges have been suspended with pay, would the Attorney General not agree that some more consistent policy should be developed so that suspension with pay becomes the expected rule, and therefore settlements may not be unfairly forced in the circumstances where persons are reduced almost to welfare, really, and therefore may have to accept a settlement which might not otherwise meet the case?

Does the Attorney General not agree that we are treating various administrative officials differently and that there should be a consistent policy so that whether there is delay because of the crown, the defence or whatever, it does not unfairly affect the ongoing obligations and lifestyle requirements of the person who is under review or under charge?

Hon. Mr. McMurtry: Mr. Speaker, I agree that it would be the best of all possible worlds and highly desirable to have a totally consistent policy. We have been wrestling with this problem for some time. The facts are that the circumstances surrounding individual cases with respect to suspension, when criminal charges are laid, vary dramatically.

In some cases -- and I am not saying, necessarily, in this particular case, given the fact of the acquittal -- there is conduct that makes it difficult for the people who make these recommendations to recommend that the pay be continued, often when we know there is going to be a very long delay between arrest and trial.

I am simply saying that the circumstances vary so dramatically it is difficult to have a consistent policy to treat each case in the same way, because no two cases are the same. I certainly agree with the thrust of the member's question inasmuch as this is a difficult issue and the type of problem in which one would like to have some consistent policy that would apply automatically to every case. I just do not know that it is possible.

Mr. Speaker: I would ask the co-operation of all honourable members to please limit their personal conversations.

TVONTARIO

Mr. O'Neil: Mr. Speaker, I have a question of the Minister of Citizenship and Culture concerning TVOntario.

As far back as 1980 I raised with the then Minister of Culture and Recreation the matter of the extension of the TVOntario network to eastern Ontario. At that time we were told that the government remains committed to the principle of extending TVOntario's coverage to all residents of the province. He also stated that he recognized these important areas remain unserved.

There are now transmitters in Windsor, Chat- ham, London and Kitchener, and last year it was announced that new transmitters were being located in North Bay, Timmins and Owen Sound. Why, therefore, has the ministry not built one transmitter in all of eastern Ontario so that our part of the province can be served by TVOntario?

11:10 a.m.

Hon. Mr. McCaffrey: Mr. Speaker, the commitment to extend TVOntario to those parts of the province that do not now have it is still ongoing. Just in the last week or two, a commitment has been made for eastern Ontario. There is a commitment for a tower at Harwood, Ontario. That is close to the member's area, although it will not service all of it. That will leave at least two major parts of the province still to be reached after the Harwood installation.

Mr. O'Neil: Could the minister tell us when this project in Harwood is planned to begin? Could he also tell us where the other two towers will be located and how soon they will be started?

Hon. Mr. McCaffrey: In the first instance, it will be in the fall of 1983. I cannot give details on the others now, but I will endeavour to get that to the member in writing by next week.

Mr. Cassidy: Mr. Speaker, could the minister explain the link between the extension of TVOntario service and the begging letters TVOntario has been sending to people across the province? It has become the first government agency to raise funds by public subscription. Is the minister saying that he will only extend service to the rest of the province dependent on the results of that begging? Why can he not ensure that service will be provided to people as a matter of right and not just depending on whether they contribute to the appeal?

Hon. Mr. McCaffrey: Mr. Speaker, it is incorrect to say that TVOntario is the only agency of the government to undertake such a private fund-raising campaign. In fact, it is one of the last to undertake one. We encouraged them to do so and I think their campaign is a classic, professional and very well-conducted effort to raise funds through sources other than the Legislature and taxpayers.

There is no relationship whatsoever between their fund-raising efforts, which we support, and extension of the service. They are not related.

COMPENSATION FOR UFFI HOME OWNERS

Mr. Swart: Mr. Speaker, my question is to the Minister of Revenue, who in an unparalleled fashion has fouled up the property tax credit and the assessment on homes with urea formaldehyde foam insulation, and now is working on the sales tax. However, my question concerns UFFI.

Now that the minister has the decision of at least five assessment review courts which have reduced assessment on houses with UFFI from between 45 and 75 per cent, what deductions is he going to make in this year's assessment of all UFFI homes for next year's taxes?

Hon. Mr. Ashe: Mr. Speaker, as I have indicated in previous discussions on this issue, we will be looking at all the decisions of the assessment review court vis-à-vis applications for reduction because of urea formaldehyde foam insulation.

Although there have been a few decisions brought down in some areas of the province, so far it is a relatively insignificant part of the total. Because there is no pressure of time in terms of the return of the roll in 1982 for 1983 taxation, we will continue to follow the results and decisions of the court. We will examine them in detail when there are more of them and make a decision accordingly vis-à-vis the 1982 assessments for 1983 taxation. However, at this time no final decisions have been made.

Mr. Swart: Would the minister give a commitment to the House at this time that he will reduce that assessment relative to the average reductions given by the assessment review court? Now that these decisions have been made to give a substantial reduction, will the minister reconsider and apply it to this year's taxes and assessment for all UFFI homes in this province and not just the 20 or 25 per cent that appealed?

Hon. Mr. Ashe: No, Mr. Speaker. As the honourable member should know if he does not, in actual fact we have no authority to change the roll after it has been returned. The only way a roll can be changed is by a decision of the appeal process through the assessment review court, by county courts and by the Ontario Municipal Board. If the honourable member does not know the legislation, I would be happy to sit him down with our legal people or even personally and give him a bit of an education on the issue.

Also, as the honourable member knows because of his background, there is a recourse to property owners who feel they have suffered injustice vis-à-vis their tax bill and that there is an incorrect assessment. That is a broad statement that can be made. They can appeal through the Municipal Act to their local council for some consideration and a reduction or a rebate in the taxes already paid in the current year. They can do that up until the end of February in the succeeding year. That is open to them. That is the only recourse they will have for 1982 taxes.

Mr. Boudria: Mr. Speaker, surely the minister knows that I have proposed in this Legislature, Bill 102, An Act to amend the Assessment Act, the effect of which would be to do exactly what the member for Welland-Thorold (Mr. Swart) asked him in the previous question.

When enacting any legislation that could resolve the problem of the owners of urea formaldehyde foam insulated homes, would the minister consider making such legislation retroactive to December 18, 1980? Presumably that is the date at which the value of those homes fell with the banning of urea formaldehyde foam insulation.

Hon. Mr. Ashe: No, Mr. Speaker. That would not be appropriate. The only circumstances in which we would consider that at all is, if the agency responsible for the problem we are now in, namely, the federal government, would come forth with the funds that could be paid back to the municipalities and the school boards to offset the revenues they would lose.

FRUIT AND VEGETABLE PROGRAMS

Mr. McGuigan: Mr. Speaker, in the absence of the Minister of Agriculture and Food, I will ask my question of the Deputy Premier. I will just preface it by pointing out that the Premier and the Deputy Premier have been very supportive of the Ontario Fruit and Vegetable Growers' Association. The Deputy Premier attended the Heritage Night dinner last fall, as I recall.

Tomorrow night, the 1982 Summer Salad kickoff dinner is to take place here in Toronto. That is a promotion sponsored by the Fresh for Flavour Foundation that is supported by the Ontario Fruit and Vegetable Growers' Association, the Toronto Wholesale Fruit and Produce Merchants' Association and the Canadian Horticultural Council. It has been responsible for the raising of the consumption of nutritious fresh fruits and vegetables to a higher level than that in the United States, for example. Why does the government not assist this promotion? It is a promotion rather than an advertising program such as exists presently under Foodland Ontario. Why does the government not support that promotion effort and support the production and consumption of fresh fruits and vegetables in this province?

Hon. Mr. Welch: Mr. Speaker, I should have thought it was obvious that the government, through the Ministry of Agriculture and Food and to some extent through the Ministry of Industry and Trade, is very supportive of many of these initiatives.

In fact, was it not just last year that, at Ontario Place, we had this Summer Salad festival opening? I remember being there on a Sunday afternoon and it was a very successful function. It was my understanding that we did have some involvement with respect to that promotional scheme. Whatever the facts are, I will have the Minister of Agriculture and Food underline that.

In the meantime, certainly I agree with the member that we should, with a great deal of pride, promote the interests of the whole agriculture and food industry of this province, particularly at times such as these. No doubt the member will recall the various initiatives with which he, too, has been associated in that regard. I cannot document now the extent of such involvement and support, but I will certainly have the Minister of Agriculture and Food report back to the House.

11:20 a.m.

PETITION

TAX ON CLOTHING REPAIRS

Mr. Swart: Mr. Speaker, I wish to table a petition that has been given me by Nick's Cleaners and Tailors, of Welland. It is signed by 476 people. It says that they protest the expansion of the Ontario provincial sales tax to charges for repairs on alterations to clothing by dry cleaners and launderers. It urges the Honourable Mr. F. S. Miller, Treasurer of Ontario, to withdraw this application of his May 13, 1982 budget since it is unfair, inequitable, inflationary and an added hardship, especially on the elderly, the unemployed and the working poor.

REPORT

STANDING COMMITTEE ON JUSTICE

Mr. Treleaven from the standing committee on administration of justice reported the following resolution:

That supply in the following amount and to defray the expenses of the justice policy be granted to Her Majesty for the fiscal year ending March 31, 1983:

Justice policy program, $858,100.

MOTION

BUSINESS OF THE HOUSE

Hon. Mr. Gregory moved that notwithstanding any previous order, the House will meet in the chamber until the summer adjournment on Wednesdays at 2 p.m. and on Thursdays at 10 am. until 1 p.m. with routine proceedings at 2 p.m.

Motion agreed to.

ORDERS OF THE DAY

House in committee of the whole.

CHILDREN'S LAW REFORM AMENDMENT ACT

Consideration of Bill 125, An Act to amend the Children's Law Reform Act.

On section 1:

Mr. Chairman: We are dealing with Bill 125 in committee of the whole House. I presume that the Attorney General (Mr. McMurtry) has already made an opening statement so we will go into the sections. If there are any amendments you will speak up at the appropriate time.

Does anyone have any comments about any section?

Mr. Haggerty: Mr. Chairman, I want to address myself to the custody and access order --

Mr. Chairman: What section is that, right at the start?

Mr. Haggerty: Yes, right at the start.

Mr. Chairman: Does the member for Ottawa Centre just have a general comment?

Mr. Cassidy: Mr. Chairman, if you could work by the numbers of the changed parts rather than the sections of the bill, it would be simpler, since it starts at 18 and goes on to 20 and 21. I have an amendment to subsection 20(1) and subsection 20(2) that I wish to introduce in this House.

Mr. Chairman: That is a good point. It has cleared my mind. Subsection 20(1) and subsection 20(2) are on page two. We will commence the way you suggested, which does seem reasonable, beginning with section 18 of the act.

Mr. Haggerty: Mr. Chairman, I want to address myself to the bill, which is a good bill. I recall that my former colleague in the House, the former member for St. George, Margaret Campbell, was always an advocate for children's rights and protection in Ontario. She had requested, before the original bill was passed, that the matter of the civil rights aspects of international child abduction should be looked into. At that time she wanted it to be included in the original bill, and we are glad it is here today. If I interpret the bill correctly, it deals with international applications under custody and access orders.

Not very long ago, I was amazed when I had an inquiry from one of my constituents concerning the abduction of his children in the Niagara region. It was the father who had written. I believe he also sent a copy of the letter to the Attorney General of Ontario. I do not know if the inquiry has ever been responded to, but after going through the detailed file I find that there has been a disregard of the civil rights of the parent of the children in question, a father and children who encountered a recent traumatic experience and a travesty of justice in Ontario.

The decision of the county court judge permitted the courts through a court order to operate in a totalitarian fashion, remote from the family and insensitive to individual justice. The rights of the father and children have been infringed, and to drive home a point, I would like to quote some of this letter to members:

"To whom it may concern, without prejudice:

"It is out of a sense of injustice and feelings of anguish that I call this matter to your attention. The basic facts are:

"My wife was critically injured in an automobile accident near Morgan's Point at about 8:30 p.m. on the evening of Sunday, January 24, 1982. I, the driver, and my two small children, who occupied the rear seat, were uninjured. Under the circumstances my children resided from the time of the accident with my wife's mother" -- I will not give you the name; perhaps I will send this over to the Attorney General -- "and her stepfather, of RR 2, Port Colborne, Ontario.

"My wife died of her injuries on Tuesday, January 26, 1982, in Hamilton General Hospital. Funeral services were held in Fenwick on Friday, January 29, with burial at Zion Cemetery, Wainfleet, Ontario, early that afternoon.

"That Friday afternoon, in the company of Mr. Owen Simmonds, Mr. Ron Simmonds and Father Leroy Lee" -- who is a member of the Catholic Church in Welland, I believe -- "I was denied possession of my children at the [grandparents'] home. I was informed by the [grandparents] that they were taking legal action to gain custody of the children and that Mr. Taliano, their lawyer of St. Catharines, had a court order to that effect. I left peaceably and contacted my lawyer, Mr. Houghton, and the Port Colborne detachment of Niagara Regional Police, who said there was nothing they could do to regain the children in view of the court order.

"On the morning of Saturday, January 30, I returned to Port Colborne police station and took the matter up with the officers on duty. In my mind, either the court order or my children had to be produced. At my insistence a number of phone calls were made, in the course of which Mr. Taliano" -- the lawyer for the grandparents -- "stated that he did not possess a signed court order.

"Following this a warrant was then issued for the arrest of the [grandparents] on the charge of abduction. The [grandparents] were arrested and taken to the station. The children were turned over to me at 4:30 p.m., and we drove to the home of my parents, Mr. and Mrs. Harry Simmonds, [of] Maple Avenue, Fenwick, where I had resided since the accident.

"Later that Saturday evening, at 10:55 p.m., the police arrived at my parents' home with a court order now signed by Judge Griffiths of Niagara Falls. In this manner and at this hour, two small and sleeping children were removed from a bereaved father and caring grandparents and transported again to the [grandparents] in Port Colborne. In a late-night telephone conversation my lawyer advised that nothing could be done until Monday.

"On Saturday, January 30, the grandparents had sworn out an affidavit before Mr. Taliano and, even allowing for emotional states, it contained many untruths detrimental to my character and to that of my parents. Yet their statement was accepted; it was the basis of the court order. Should not their statement have been checked into at the time of swearing?

"On this basis Judge Griffiths had issued a court order on Saturday, January 30. But if it is the duty of a judge to judge, then should not my side have been adjudged? Surely more and very convincing evidence was required before (a) removing two small children late at night from a recently bereaved father -- the children are two little girls, five years old and two years old; (b) acting in favour of the [grandparents] against whom there was a charge of abduction.

"For example the Port Colborne detachment could have provided information as to the state, attitude and conduct of the grandparents.

"To undo what had been done put me through unnecessary additional days of anguish before my children were returned on Tuesday evening, February 2. Before noon on that day, the [grandparents] through their lawyer, agreed to a settlement minutes before we had an appointment to meet with a Justice of the Supreme Court of Ontario in St. Catharines. To undo what had been done put me to an unnecessary legal expense of over $2,200, (reduced voluntarily from the tariff: $3,200).

"In view of this, it must be asked whether every possible step was taken. Was due process followed fully?

"While aspects of this matter are still in the hands of my lawyer, it is on my own behalf as a citizen that I draw this matter to your attention. Given the human wreckage done in this matter, I sincerely request that the procedure of Mr. Taliano and Judge Griffiths be assessed and an explanation made.

"Yours truly, Mark E. Simmonds.

"P.S. I am attaching a copy of my lawyer's account because it presents a detailed chronological outline of the events referred to in this letter."

11:30 a.m.

A copy of this letter was sent to the Attorney General of Ontario, the bar association for Lincoln and Welland county and the Law Society of Upper Canada.

One can see the difficulties this parent had in obtaining his own children. I have gone through the files in detail and I feel there has been an injustice done to the parent of these two children by the court action of a judge who, without questioning the other side and looking into it in detail, provided a court order for the seizure of the two children from the father.

I suggest if this is the type of justice that prevails in Ontario, it is time we took a hard look in the direction of the new Family Law Reform Act and the bill that is before us today.

It is a good piece of legislation. I think it will provide grounds in Ontario that relate to children born in another country or parents who have separated and one of the spouses has moved to another country. It is a good piece of legislation and I support it.

I draw to the Attorney General's attention that difficulties remain. I suggest perhaps he should take a good look at this case. I will send the information over to him; it is the only copy I have. I would like to have a detailed explanation as to why an occurrence of this nature happened, to give some assistance to the aggrieved father and the children. Under the circumstances of the tragedy of the mother's death and then to have to endure the seizure of his children, I question the judgement of the courts in taking the action that took place in the Niagara south jurisdiction.

I suggest we must have justice on both sides and that the parents from both sides should have been taken into consideration in the question. I think of the damage done to the family and what could happen to other families in Ontario. The legal parents could lose their children because there may be some difficulties or misunderstanding with grandparents on either side of the family. I can see the difficulties one can encounter when we leave ourselves open to this type of a decision of a county court judge that could have very serious, damaging effects upon the family itself.

I hope a case like this, if it is the way I interpret it, does not happen again in Ontario. If it leaves that discretion to the judge, if it leaves him with that much power, then I question whether he should have that much power without having a prehearing before he sends out police at all hours of the night to seize two little children from the parent.

I suggest it is a problem. There is no doubt about it, I would not want to see it happen again that some family disagreement should provide this type of tragic opportunity for seizing children at any hour of the night. I regret that it has happened in Ontario.

I think the minister should take a good look at the area of the judge's jurisdiction, as well as at the lawyer in this case, who I think overstepped his bounds by requesting the police to seize the children without having an order in the original instance. There appears to have been an infraction of the justice system in Ontario and I think that lawyer should be reprimanded for taking such action.

I wanted to bring this to your attention. Perhaps other members have had problems similar to this. Let us hope it does not happen again.

Mr. Chairman: That deals with sections 18 and 19 of the act: we can now go to section 20.

Mr. Cassidy: Mr. Chairman, I have an amendment. I have copies for the critic from the opposition as well as for the minister and the chair.

Mr. Chairman: Mr. Cassidy moves that the following be substituted for subsection 20(1) of the act as set out in section 1 of Bill 125, and that the existing subsections 20(2) to 20(7), inclusive. be renumbered:

"(1) Except as otherwise provided in this part, the father and the mother of a child are equally entitled to custody of the child and shall normally be expected to share responsibility for the child through joint custody under arrangements arrived at by mutual agreement.

"(2) Any decision of the courts with respect to custody or access shall have substantial regard for the degree of co-operation shown by the father and the mother in reaching an agreement with respect to joint custody or in adhering to the letter and the spirit of existing agreements with respect to custody and access."

Mr. Cassidy: Mr. Chairman, many of the people in this chamber probably saw the movie Kramer vs Kramer, which was a hit on the movie screens a couple of years ago. In that film, at the end nobody quite knew what was the right decision as to which parent should have the child. That is, perhaps, an example of why it is important, it seems to me, to rethink the basis on which the courts are now generally required to decide who gets the kids in the case of a marriage breakup.

In Kramer vs Kramer, was she the better parent or was he the better parent? Or was it not the case that both of them had something to contribute to that child and that both of them could certainly be deemed to be adequate parents -- maybe not perfect by your book, Mr. Chairman, or by my book, but certainly people who cared about their kid and who really wanted to look after that kid's best interests?

I would suggest that is the case in a large number of marriage breakups but that because of the nature of the divorce laws, and also, I suppose, because of the nature of society, unfortunately the kids are treated as pawns.

We have for 10 or 12 years had reforms in the divorce law. Alimony and spouse support are seldom paid. Under certain conditions no-fault divorces are available -- and one has to assume, given the trends in North American legislation, that will become more rather than less common -- so it will not be required to prove that one party is the guilty party. In various ways the courts and the law will permit people simply to go before a court and say: "We are sorry, but the marriage did not work out. We have irreconcilable differences and we do not want to live together any more."

The difficulty is when kids are involved it complicates the matter a great deal, particularly when the tradition of the legal system, a tradition that has not changed in the bill we have before us today, is that one or the other parent will be awarded sole custody of the child.

11:40 a.m.

I do not have the specific figures, but I believe something along the lines of 90 per cent of custody decisions are made in favour of the wife. I believe it is the case that well over 90 per cent, probably 95 per cent or 96 per cent, of the custody decisions follow the practice known as sole custody. The other partner has certain visiting rights and certain rights of access, and one of the purposes of this bill is to try to broaden those rights of access: for example, to make it clear in the law that the noncustodial parent has the right to go and talk to a child's teacher or principal about the kid's progress in school, where in the past there have been instances in which the parent who had custody made it very clear to the school that under no condition were they even to talk about the child to the noncustodial parent.

One thing that happens is that the disagreements and the acrimony between the parents shift into disputes over the children, and that is tragic. Not only that, but the rights of the child become very much forgotten in the exercise as it happens before the courts. I am afraid this is still going to occur under the bill in the form in which the minister and government have proposed it at this time, even though I recognize it is a better bill than the existing legislation.

If you went back to the Kramer vs Kramer type of situation and asked the child, "Which parent do you want to live with?" that child would say, "I want to live with both my mommy and my daddy." "Well, which parent do you want to see?" "I want to see them both. If they are not going to live together, I still want to be able to see them both because one is my mother and one is my father, and I have a special relationship with them both."

Again, I speak in part from personal experience. In many cases I have known -- and it is unfortunate when families break up -- the kids do not seek a divorce from one parent and really want to maintain contact with both parents but may find themselves put in a situation where, because of the custody decision, because of the fact that one or other parent has been given custody and the parents are still at war between themselves, it becomes extremely difficult for the child to have regular contact with the noncustodial parent. I am going to speak at some length about this; the purposes of my amendments are to suggest that there is an alternative and that we in this province should be considering it very closely.

I regret that this really was not debated extensively during the course of the committee hearings on the bill, and I regret as well that the group I have been in contact with in Ottawa, the Noncustodial Parents Alliance, was regrettably not aware of the fact that the bill was being considered before the committee. I am not sure that other groups of noncustodial parents in Toronto, Hamilton, Windsor and London were aware of it either. I do not think it was really raised as a serious matter before the committee.

It should have been and it should be now. If the government does not feel it can accept these amendments at this time, I hope that either in one of the policy units within the Ministry of the Attorney General or within the Ontario Law Reform Commission the matter of a new approach to custody for children where divorce or marriage breakups are taking place will be seriously studied and that the evidence from the half dozen American states which have now moved towards a joint-custody approach will be very seriously considered with a view to adopting this approach here in Ontario.

The first part of this amendment states, as does the present bill, that "the father and the mother of a child are equally entitled to custody of the child." I have to say that although it is stated in the present bill, in reality this is a bit of a joke because the courts are not given a clear signal that they should change their present practice, which is that in 85 per cent, 90 per cent or 95 per cent of the cases, in the overwhelming majority of cases, custody goes to the mother.

This amendment seeks to give that signal without which neither the courts nor, I believe, the parents will change the present practice of fighting over the custody of the children because the amendment says, "The father and the mother. . . shall normally be expected to share responsibility for the child through joint custody under arrangements arrived at by mutual agreement."

One question that arises from that is, does the joint custody mean the child has to live three days and 12 hours in one home each week and three and a half days in the other home to meet the requirements of joint custody?

In California, which is farthest along in terms of exploring this new approach to the law, they definitely say no. They say that to try to pin it down to a legalistic kind of equality would be wrong because that is not what we are looking for. We are looking for a matter of spirit and an approach which will provide reassurance to the children that they have access to both parents.

It is suggested other arrangements might work, and there are a number of them. Frankly, they require, among other things, middle class incomes and lifestyles. If both parents are going to maintain a bedroom for the child, for example, so a child can spend a week in one home and a week in the other, that requires that both parents have the means to have a home where they can have a bedroom for each child, which means an increase in expenses.

If both parents are going to have the child one week at a time, one month at a time, or one year at a time with comparable arrangements, at the extreme that means arrangements with teenagers where the parents live in the familial home one month on and one month off, with the kids living there all the time, and each parent maintaining separate quarters outside. That is a bit idealistic, although it is one thing that is possible.

I believe, however, that joint responsibility does not automatically mean joint residency. The question of residency and custody should be separated rather than be included as being exactly the same thing.

The amendment says the arrangements should be arrived at by mutual agreement. The question arises as to whether it is not the case right now that it is hard to get the divorcing parents even to agree whether they meet in his lawyer's office or hers, let alone to make a decision as to what is going to happen with the children.

The answer is, yes, that is the case; there can be a great deal of acrimony. One reason I am going to suggest, in a subsequent amendment, that there should be a mediator appointed by the court who would sit down with the parents at the earliest time to discuss arrangements for the children is precisely because of the need to get the parents, whatever their personal feelings about each other, to focus on the needs of the child and how they are going to cope with this opportunity they have jointly created; because when they divorce they are divorcing each other, but most parents will accept they are not divorcing the child at the same time.

One of the requirements is there has to be an incentive towards co-operation with respect to custody arrangements for the child. Right now it is the contrary. Right now the percentage favours a parent who thinks he or she has a good chance of getting the child being as uncooperative as possible. Because if they are uncooperative, the chances are they can win sole custody from the court with some kind of visiting arrangements, then they can work on that one too; whereas if they are co-operative then what they will agree to will be a great deal more.

Right now, joint custody is only accessible under the law if both parents agree. Therefore, there is a veto in the hands of either parent. Essentially, the least co-operative parent would be the one who would assume the veto and, therefore, the least co-operative parent has it in his or her power to decide whether there should be a joint custody arrangement or not.

That is why the second part of the insertion, the new subsection amended into this section 20 says, "Any decision. . . with respect to custody or access shall have substantial regard for the degree of co-operation shown by the father and the mother in reaching an agreement with respect to joint custody or in adhering to the letter and the spirit of existing agreements with respect to custody and to access."

Regrettably, sometimes these matters come back to the courts. If one parent has not been playing his or her part in terms of upholding the agreements, the court should be prepared to look at that in making subsequent decisions.

11:50 a.m.

One parent may say, "I am absolutely not going to go along with any of this stuff," and the other parent may say: "I am prepared to see a joint custody arrangement, and as long as I can have access to my child for a couple of days a week, I am prepared to talk about how we might sort out the remaining time. It does not matter to me whether I get exactly half the time with the children, but I definitely want to be involved. I am prepared to contribute to the cost of upkeep. If my wife has the child and she cannot afford all the costs, I am prepared to contribute to some of her costs as well, as long as we are jointly responsible for the child."

If those are the attitudes that are put forward by the two sides, then the court should be able to say: "What is coming from one side makes more sense and is certainly more co-operative. It is more likely that the joint custody, the access by both parents to the child and by the child to both parents, will work if the child goes to the father rather than the mother." That kind of incentive to co-operation does not exist within the present system.

I want to go back to the situation we have now. The member for Erie has indicated some of the problems that can occur when these matters go to the courts. I have worked with constituents who have been involved in cases of child-stealing, where the children were abducted by one parent and disappeared for long periods of time. Sometimes they have been recovered. Even when they are recovered and come back to the parent who has legal custody, in my experience, as often as not, that happens by means that are outside the law.

In one case I was involved in, the children eventually showed up somewhere in Florida. The children's aid society called and said: "We have your children in care here. It will take you about eight months to go through the legal shenanigans that are involved in order to regain custody." The children's aid in Florida said: "Why don't you fly down and simply take the children and go back to Ottawa? We will wash our hands of it." That is what happened. That is how the mother regained custody of her children.

Under the present arrangements, which discourage co-operation and encourage the fighting to continue over the children, the Attorney General must be very familiar with the fact there is a tremendous default rate on child-support payments. This is usually from the father to the mother on behalf of the children. Why is that? I suggest one of the major reasons for this is that the noncustodial parent sees no percentage in making those payments because he has been so thoroughly shut out of the lives of his children.

If a father has a visiting agreement that allows him to go a couple of half days a month or one day a week or something like that; if he is a Saturday parent and his times are 9 a.m. until 4 p.m., and the mother will scream at him if he returns the child at 4:15; and if it is arranged in such a way that all he can do basically is take the child out for treats rather than doing the kind of things most parents do with their children at different ages, then he winds up being a little Santa Claus out to compete with the custodial mother in providing goodies, treats or favours for the child.

I have teenagers now. If I were in the unhappy situation of being a noncustodial parent and the order said, "Nine o'clock until five o'clock on Saturdays," one of my teenagers is selling ice cream on Richmond Street and he does not want to be around from nine until four o'clock on Saturdays. Another one sleeps in until one o'clock, so he would not want someone to take him out at nine in the morning. Those are the kinds of real situations that exist.

One of my contacts in Ottawa has told me about his problem. He has an agreement to take his child for three or four weeks in the summer for a holiday. The child is in the custody of the mother. Rather than take the kid to a cottage or have him mooching around in town, he intends to take his holidays and wants to take his son canoeing. That is something I did with my father when I was young and it is something that many boys would welcome doing with their fathers. However, in order to do that, the child has to be able to swim. In order to learn to swim, he has to go for lessons on a Wednesday or a Thursday night.

But because the parents are still at war, and because there is no incentive in the present act to co-operate, the wife will simply say: "I am sorry, but your time is from Saturday to some time on Sunday and you cannot have him on Wednesdays. I will not make the arrangements for the child to go to swimming lessons at the Y when they are available on Wednesdays," therefore putting at jeopardy this real activity between the child and the parent.

It is wrong that we are going to continue to make a decision, ostensibly in the best interest of the child, as to which parent will have full custody, which is the situation that will still exist under the act. I want to talk about a subsequent section, but it is with reference to this one; and I do not have amendments to that subsection 24(2), which sets out the grounds which are going to guide the court.

Those grounds have been broadened. They do include the love, affection and emotional ties between the child and the parents. They also include the question of the capacity and disposition of each of the parents, in most cases, to provide both the necessaries of life and the special needs of the child, and also the permanent stability of any proposed custodial home as a family unit. These decisions are normally made in the same time frame or often in the course of the same hearing as a divorce and come at a traumatic time for everybody involved. It is certainly traumatic for the children, who fear they are going to lose a parent.

No matter what we say about changes in morality and so on, marriage is still pretty important. All of us get married more often than we ever did in history, partly because we keep on trying again. If a marriage fails, people cannot help but feel they have somehow failed as well. It is traumatic to have a marriage breakup in most cases.

The first question is, how does the court balance the love, affection and emotional ties. the rights of the child, with the question of which person will be the best person to look after the child? The answer is it is extremely difficult because, as I said earlier, if we ask the kid which parent he would prefer he might say, "I want to be with my mother." or "I want to be with my father."

But if you ask the child the realistic question, "With which parent do you want to spend almost all of your time?" I would say that in 80 or 90 per cent of the cases the child would say: "I do not want it that way. I want to continue to have a lot of contact with my mother and a lot of contact with my father." Unfortunately that option is basically closed off under what we are doing with the law as it is here.

When the court comes to the other question of either/or, which person, it has to consider the capacity and disposition of each person applying for custody to look after the child. I am not a lawyer. I have not engaged in family law. I do not know whether it is five per cent or 10 per cent or maybe 25 per cent of the cases where the question of the capacity and disposition of the parents to look after the child is relatively clear cut.

If we took the member for St. Catharines (Mr. Bradley), myself and the Minister of Consumer and Commercial Relations (Mr. Elgie), or any other three people with reasonable common sense, and asked them to make a decision between the parents, it would be relatively clear to us that one parent or the other really should have custody over the child. But I would suggest in the large majority of cases, perhaps 75 per cent, 80 per cent or even 90 per cent, it is not easy to make that decision.

If we asked this same panel of people the question "Is the mother adequate?" -- not if she is the best, but if she is adequate to look after those children -- the answer would be yes. Asked if the father was adequate to look after those children, the answer would be yes as well.

12 noon

We all seek perfection but we cannot get it. In terms of financial capacity, most sole-support mothers suffer a sharp drop in their standard of living and in their financial capacity to look after children.

There are a number of people in this chamber who grew up in good circumstances, but they were not circumstances that were materially rewarding. They grew up in three-room apartments, four-room farm houses or situations like that. Material means are not the only factor at play.

If there are two adequate parents, why do we in this Legislature, in our wisdom, say the court has to decide that one parent is more adequate than the other? If there is a judgement that one proposed custodial home seems to be more permanent and stable than the other, what foresight does the family court judge, the Supreme Court judge or the panel of the member for St. Catharines, the Minister of Consumer and Commercial Relations and myself, have to anticipate the situation five or 10 years hence?

In five years' time the home that appeared to be permanent and stable might have turned into a snake pit. The parent who did not seem to have his or her life together might have been able to get it together within a year or so after the marriage breakup, with a new partner or on his or her own. It might be that the marriage had been extremely confusing and, without that pressure, the other parent might manage to get things together particularly well.

Once again, if we are looking at two parents competing for custody, the court is asked to look at the capacity of each parent to look after the child.

Let us suppose the child is a preschooler. What are the needs of the preschooler? Their needs are such that there is a disposition in the courts to award custody to the mother because mothers tend to have more contact with preschoolers than fathers, even though that might be changing.

However, let us look ahead five years when that three-year-old has become an eight-year- old. At eight, that child might be a bit tempestuous and a bit beyond the capacity of the mother to control. At that stage, the eight-year-old might find that the father has more capacity and disposition to deal with him, channel him, help him and get him moving.

Let us go now to the age of 12 or 13. Suppose the child was a girl who had been left with her father. Suppose that at 13 she had turned into a tomboy and was having all kinds of preadolescent tempests and storms and there was utter, outright war between the father and daughter. However, the mother might be able to relate to the child and help her to face what is happening to her in the process of going through puberty and becoming a woman.

Let us go ahead again to the age of 16 or 17. Perhaps at that age the daughter would feel she was competing with her mother and might be much happier and more friendly with the father.

In other words, at three it would be good for her to be with the mother, at eight with the father, at 13 with the mother and at 17 with the father.

The minister has several children and has had a successful family life. He will know that in a two-parent family both parents play the role of the psychological parent and both of them play it more strongly or less strongly at different periods of time. In my family right now, I am better able to talk to my middle child than my wife is. At other periods, she was better able to talk to him and relate with him.

All those subtleties, changes and ways in which the adults and the children are going to change are what lie ahead at a time when we say to the courts, "Okay, at this moment in time we are asking you, because that is the position right now, to make a decision with respect to sole custody." Most of the time that is what it is going to be and, therefore, regardless of whether the father might be good for his child at later stages in life, regardless of whether one home that seems stable now might become unstable and one home that seems unstable now might become more stable, the court makes a decision with respect to sole custody.

I am suggesting we have got to get away from that. What we have to do is to try to separate the decision of the parents to divorce and the decision made by the parents with respect to the children. There is now mounting evidence that it is possible for parents, who themselves cannot get along to the point of staying married, to make those decisions and to be co-operative about the children. In fact, at times they can even do a better job with respect to their children, probably because of their sense of guilt at having failed at the marriage and a sense that they are not going to let this be passed on to the children.

There is added evidence, and again I want to speak in a very practical way, that most kids go to their mothers. Most single-parent mothers either have to work -- and they work for women's wages, which are much lower than men's -- or else they have to go on family benefits, which once again condemns them to a life of very low income.

A woman aged 28 or 33 or 36 has not reached the point where -- Mr. Chairman, I will wait until the Attorney General is paying attention, because I think this is important -- where her only goal in life is the raising of the children who have been awarded to her as a result of a sole custody decision. She has a number of years ahead of her. If she has her head on her shoulders, she knows that those children are going to grow up and, at the age of 45 or 50, she will be faced with another 20 active years without children to be responsible for. She quite possibly feels that she could strike up another relationship and get married again. Maybe she has outside interests. Maybe she needs to be educated to qualify herself for a career.

In the battle in the divorce courts, perhaps aided and abetted by her lawyer -- although I hope not -- the line becomes, "I am not going to let that son of a b -- take over my children." The battle is very much over the children; but after the dust has cleared and the decision has been made, there she is with children who need babysitters and a lot of care and attention. She is responsible for the basic problems of parenting. She has to provide a home and income. She has to do the shopping without assistance and that kind of thing.

In addition to that, she is responsible for discipline. She is responsible for trying to broaden her children's horizons. If she decides she wants to have a bit of time to take a night course or to go out and meet some people or sing in a church choir or something like that, every time she does it she has to get a babysitter and has a sense of guilt in abandoning the kids because of that. She also has the added expense.

Once again, one asks oneself: "Is that really the best way? Or would it not be more feasible to allow that parent to look after the child and still grow and do the other things that are important in his or her life; in other words to have the responsibility shared between the parents?'

I want to conclude by bringing to the minister's attention section 4600, I think it is, of the California bill with respect to joint custody. This came through about 1979, partly because of the great concern of noncustodial parents in that state. Section 4600 of that bill is equivalent to the one we are considering here.

The first section of that bill states: "The Legislature finds and declares that it is the public policy of this state of California to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage The very first part of that section 4600 indicates clearly that the best interests of the children begin by allowing the kids to have frequent and continuing contact with both parents.

12:10 p.m.

It goes on, "... and to encourage parents to share the rights and responsibilities of childrearing in order to effect this policy." Sad to say, although we say both parents should have equal rights of custody, essentially once the custody decision is made we do not indicate as a matter of policy that we believe both parents should share the rights and responsibilities.

The bill goes on, and I will quote section 4600 again: "In any proceeding where there is at issue the custody of a minor child the court may during the pendency of the proceeding or at any time thereafter make such order for the custody of the child during minority as may seem necessary or proper." That is the equivalent to our law. 'If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody the court shall consider and give due weight to the wishes of the child in making an award of custody or a modification thereof." Again, we have something like that in section 24.

This is important: "Custody should be awarded in the following order of preference according to the best interests of the child The order of the preference is "to both parents jointly pursuant to section 4600.5 or to either parent." In other words, in the California law they say that if there is a choice between joint custody or sole custody, the decision should be for joint custody unless there are compelling reasons to the contrary. That is what is lacking in our law, and that is why my proposed section 21 says, "That the parent shall normally be expected to share responsibility for the child through joint custody."

The California bill goes on to say, "In making an award of custody to either parent the court shall consider which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent." The only reference to co-operation in this bill relates to co-operation with the social worker who goes out to talk to the parent; it does not go beyond that and it should, that is why my subsection 2 is proposed here.

Then it says, "The court in its discretion may require the parents to submit to the court a plan for the implementation of the custody order." That one is hinted at in our bill but it is not a requirement. Once again, the parents can submit a plan. They say to them jointly, "Go out and make a plan. See what you can decide together in co-operation, even if you do not agree to live together." That is a much better kind of arrangement than the arrangement we have in our law right now where, if there is a disagreement, it keeps on coming back to the courts, to the point where people become absolutely sick of the litigation that takes place.

Then section 4600.5 says that there should be a presumption that joint custody is in the best interests of the minor child "where the parents have agreed to an award of joint custody." In other words, if the parents say that is okay, the court cannot overrule it. Once again, that is something which is not involved in our law.

Hon. Mr. McMurtry: The court does not overrule them here when they agree.

Mr. Cassidy: If they agree.

Hon. Mr. McMurtry: The issue is when they disagree.

Mr. Cassidy: I am glad the Attorney General is listening, but the point is that right now parents can go in with a plan for joint custody and the court can say, "Well, we have read the law and in our judgement that is not good enough and we are going to award sole custody."

Hon. Mr. McMurtry: Show me one case where that has ever happened.

Mr. Cassidy: If the Attorney General is satisfied that is never going to happen, then I believe the law should say so.

Hon. Miss Stephenson: You have got to be kidding.

Mr. Cassidy: I am glad the Minister of Education (Miss Stephenson) is listening to this as well, because section 4600.5(b) says, "Upon the application of either parent joint custody may be awarded in the discretion of the court in other cases." I say to the Attorney General, what happens there is it does not require that both parents agree for joint custody to be awarded, whereas in our system essentially it is only if both parents agree that joint custody is going to be awarded.

Hon. Mr. McMurtry: That is essentially the California system.

Mr. Cassidy: That is the California system I am quoting.

I recognize the Attorney General may find it difficult to accept these amendments today, but I am making this intervention to plead with him, and with his officials who are sitting in the gallery, over the course of the next six months or a year to look closely at what has been done in California and in other jurisdictions, to ask the kinds of questions I am asking as to whether that does not more closely accord with what is in the best interests of the children and with what all of us have experienced in terms of knowing what goes on and what children and parents in the case of divorce actually want.

I know a lot of parents who, when there has been a divorce, do not want that breakup and who do not want all of the argy-bargy. I have a relative who went through this, and I will give this as a case to the minister; perhaps he can respond to this. This relative was faced with a custody hearing as a consequence of his divorce. It is fair to say that both parents were adequate parents. Both would be judged by the courts to be caring, loving and capable. They both had the financial means to look after the children and so on.

In this case, the wife was being uncooperative and indicated she was prepared to fight like hell in the courts to get sole custody of the children. At the time the children were about nine and 12. My relative said: "With those children, it is not fair to have them exposed to that kind of court battle between the parents. It just is not fair." Therefore, rather than put the children through that, he simply let it go and sole custody went to the wife with some rather tragic consequences, I believe, for the two children in question.

I am reminded of the parable of Solomon and the two mothers who were squabbling over who was the true mother of the baby. Solomon finally said, "We will solve this problem by cutting the baby in two." One of the contending mothers said, "No, in that case I will give up any claim I have to the child." Solomon said the mother who gave up the claim was the true mother. The reason that was true was that she was prepared to sacrifice anything to save the life of that baby.

That can happen now under our present sole-custody arrangements. The option of joint custody is not there unless both parents agree. Obviously there will be cases where parents will not agree, and the legislation does not give the clear signal that they should be looking towards joint custody.

I could say some more, but I think I have laid out the case fairly strongly. I will be very interested in the comments and the reaction of the minister.

Hon. Mr. McMurtry: Mr. Chairman, I will refer briefly to the comments of the member for Erie (Mr. Haggerty), although he is not here. In the case the member referred the Legislature to, I would be very content if the lawyer involved would like to correspond with me directly if he feels there were any improprieties or if, in his view, there is any manner in which our current procedures could be improved, bearing in mind the legislation now before the House. I welcome further information in relation to that case.

As far as the member for Ottawa Centre (Mr. Cassidy) is concerned, I want to say at the outset that there is little he has said with which I would not agree. We might have slightly differing views as to how to achieve the goal that I am sure we both desire. I would like to thank him further for his letter of June 14, in which he sent me, as he describes quite accurately, a fairly extensive file of articles and comments on the question of joint custody. I certainly will read these articles with interest, as this issue has been of concern and of interest to me for a long period of time.

12:20 p.m.

As one who practised in the courts very extensively for 17 years before being elected to the Legislature, I had a great deal of personal experience with matrimonial disputes, including custody battles. There can be no doubt that is one of the unhappiest types of litigation imaginable. I cannot ever recall a case where I did not feel it would have been so much more appropriate if the parties could have resolved their differences outside of the courtroom and indeed short of any litigation.

I think it might be helpful, Mr. Chairman, if I were to read the letter I sent to the member for Ottawa Centre on June 9, 1982, in reply to his letter of May 31, respecting the issue of joint custody. The letter is as follows:

"Dear Mr. Cassidy:

"Thank you for your letter of May 31, 1982, regarding Bill 125, the Children's Law Reform Amendment Act, on the issue of joint custody. I wish to assure you that, in bringing forward the bill, I was most concerned that the court have the power to recognize the benefits of joint custody in an appropriate case and to make an order accordingly. As you will note, under section 28 of the bill the court may grant custody to more than one person. Of course, the bill also declares in section 20 that the parents of a child are equally entitled to custody of the child.

"In your letter you refer to the support of the Noncustodial Parents' Alliance of Ottawa. I recently had an opportunity to respond to a brief they submitted on Bill 125. I pointed out that where the court does not feel that complete joint custody is suitable, the bill includes unique features that would permit joint control over specific aspects of the child's care, such as choice of religion, consent to medical treatment and the right to direct education. In addition, I brought to their attention the increased rights of the parent with access to be visited by the child and to be given information about the child. The bill also provides for mediation on a voluntary basis.

"I appreciate that the bill does not completely follow the California model. Professor Julien Payne, a professor of law at the University of Ottawa who has written widely on family law, has recently expressed the opinion that the presence or absence of statutory provisions will not determine the efficacy of joint custody. A practice direction to the family division courts in Great Britain states that joint custody should not be ordered except with the agreement of both parties.

"It is also noteworthy that when the family law subsection of the Canadian Bar Association appeared before our standing committee on the administration of justice in December 1980, they asked for clarification of the provisions relating to joint custody. When they reappeared before the committee in January of this year, they simply recommended that rights of parents with access be increased. The bill was amended accordingly.

"In view of the consideration that has been given to those issues and the need to implement the provisions of the bill, particularly with respect to child abduction, as soon as possible, it is unlikely that I will be proposing any amendments to the committee of the whole."

Again, I do appreciate the legitimacy of the concerns that have prompted the submissions of the member for Ottawa Centre. I think it is important to appreciate that in the vast majority of cases where there is marital breakdown, separation and/or divorce, the parents appreciate the wisdom of not getting into litigation over custody of infant children. I do not think we have totally accurate figures, but it is only in a tiny percentage of cases that parents go to the courts to battle over the custody of their children.

I think this is a recognition on the part of the great majority of parents. I am not suggesting that all parents do not recognize this. I certainly think it is an illustration of the concern most parents must feel about resolving these issues in so far as they pertain to custody of the children without resort to litigation.

Probably in 90 per cent of those cases -- I think it will be more than 90 per cent in cases where there is marital breakdown -- the parents do agree that the infant children live with the mother. The member for Ottawa Centre states, and I do not quarrel with his figures, that in approximately 90 per cent of the cases the courts will award custody of infant children to the mother.

Whatever those figures are, I think they relate directly to what people on their own agree to, short of litigation. Basically, what the courts are reflecting is public attitudes generally. It is to be hoped that they are motivated for the most part by a concern that the best interests of the child prevail.

I stress that this legislation does provide for joint custody. What we are attempting to do, and fundamental to our concerns, is to avoid unnecessary litigation. It is our view, and I think it is the view of the overwhelming number of experts in the field in Ontario, that the slightly more rigid California approach is only going to produce more litigation. I will explain why in a moment.

As far as the principle of joint custody is concerned, I want to refer to the Kruger case. In a 1980 decision of the Ontario Court of Appeal reported in 25 Ontario Reports (2d) 673, the Court of Appeal has said the court should give serious consideration to joint custody as one of the available options. That is certainly well recognized by our courts.

The court went on to state, and this is crucial to our discussion, that there must be evidence of willingness on the part of the parties to make it work. Without that evidence of willingness, there will be more litigation with more emotional trauma as far as the children are concerned and, as well, as far as the parents are concerned.

That is why there is no doubt in my mind that when parents go to court and say, "We have agreed on an order of joint custody," I cannot envisage a situation where the courts would want to interfere with that agreement.

The Ontario Psychiatric Association has stated: 'We agree with the general thrust of the act. The joint custody is one option." It goes on to state that, in its view, it should not be a presumption. It quite properly points out, as our own courts have recognized, that it is useful only if parents can retain the spirit of cooperation and willingness.

I do not question for one moment the legitimacy of the concerns that prompted the amendment; and I certainly agree with the member for Ottawa Centre that this an issue we must continue to look at and monitor, because we do not want to create the impression through this legislation that one parent is being stigmatized by the fact that the other parent has custody of the children. I am worried about the perception that sometimes can be created in their minds that somehow they are less of a parent in so far as those children are concerned because custody has been awarded to one particular parent in the context of a dispute.

12:30 p.m.

In this context I think I am correct in stating that nowhere does the legislation refer to sole custody. The honourable member referred to that on a number of occasions, but I do not believe that anywhere in the act does the term "sole custody" appear. In fact, what we are talking about is custody with legislation that is going to encourage generous access where there is custody.

I reiterate once again that in section 28, the legislation makes it very clear, as I have already stated, that the courts may give custody to more than one person. So when it comes to sending a message to the courts that in certain cases a joint custody order may be in the best interests of the child, I think we are really attempting to send that message. I am told, as I have already indicated, that the California legislation states that there shall be a presumption of joint custody where the parents have agreed.

My specific concerns with respect to the proposed amendments are, first of all, the possibility of further litigation, with one parent trying to enforce the presumption of sharing of responsibility. One might ask questions such as, 'Would they be expected to share responsibility while living together, when separated or after a court order?"

Again, when we talk about mutual agreement, what are we talking about: a legal or an oral understanding? What we are attempting to do is to enshrine the principle that is now well recognized in the courts that the fundamental and overwhelming consideration has to be the best interests of the child. The courts, I really believe, do recognize that any order which makes one parent feel inferior with respect to his or her sense of responsibility in relation to the upbringing of a child, of course should be avoided. That is why I say I share most of the concerns that have been expressed by the member for Ottawa Centre.

The difficulty with these cases is that unless there is an agreement, parents in the small majority of cases unfortunately do engage, in my view, only too often in unnecessary and prolonged litigation with respect to matters of custody and access. I am sure many of these parents may in their own hearts believe that they are being motivated by what they perceive to be the best interests of the child. However, I think it has been the experience of many of us who have participated in these battles as lawyers, or in another professional capacity or simply as witnesses to battles that often take place in our own families or among our friends, neighbours and colleagues, that unfortunately, too often this litigation is motivated by the desire of one parent to do battle with the other.

As a result, children are often unnecessarily victimized in the process. In my view, the tragic aspect of it is that all too often the people who

are engaging in this unnecessary litigation do not realize what results it is producing.

So what we have in this very carefully structured legislation, which has come back to the House after two series of hearings in committee, is really the product of the best advice available. It is structured to avoid unnecessary litigation in an area where I agree conciliation should be of paramount consideration.

To sum up, I very much respect the sentiments that motivated the proposed amendments and we will continue to look at this issue very carefully. But at this time, for the reasons stated, I am unable to accept these amendments.

Mr. Cassidy: I have a few more comments to make on three or four points but I will be brief: I promised my friend the member for Riverdale (Mr. Renwick) not to go past 10 or 15 minutes from now.

The minister says the law is structured to avoid unnecessary litigation with respect to the rights of access. While he was saying that I was reading through the law, which is pretty much silent on what kinds of rights of access should be provided by the court. There are very few guidelines that I can find respecting the nature of the type of access that is to be awarded.

What is clear is that under section 21, if an access agreement needs to be changed, or if an access agreement is not being respected, it has to come back to the courts, which does seem to me to be potentially litigious. I would say, contrary to what the minister said, that the law is basically silent on providing guidance on how access will be looked after.

The minister said that the fundamental interest, and I agree, is the best interest of the child. But I go back to the point I made before: the child is not choosing to divorce his or her mother, or to divorce his or her father. Let us turn that around and not talk about the rights of custody and the rights of access by the noncustodial parent to the child. Let us talk about the rights of access by the child to both of his or her natural parents. I am not sure whether that is sufficiently dealt with in the bill as we have it here.

The minister cited the Kruger case and pointed out that the requirement there was that there must be evidence of willingness of both parties to make joint custody work. That is essentially the state of the law in Ontario now, and the state of the law which is perpetuated by this particular bill.

However, there are two points to be made about that. The first is when you have a custody and access agreement that obviously can work. It can work quite well at times if the parents are prepared to make it work. If the will is there it is going to work, and if is not, there is a risk of one of two things happening: either the parties are going to get into more litigation and constant recourse to the courts, or the parent who does not have custody throws up his or her hands and says "To hell with it" and becomes a nonentity so far as the life of that child is concerned. Too often that is what happens, and many children wind up in the hands of their mothers.

The consequence is that, increasingly, we are raising a generation of children who basically have not had very much experience of being fathered. I suspect that is a bad thing for those kids. I think it is bad in so far as those children's rights are concerned. It may also be bad in the social consequences of having a larger and larger number of children who have mothers but do not have fathers.

To have joint custody the present law says there must be evidence of willingness of the parties to make it work. Whether it is joint custody or is not joint custody, if there is a willingness to make an arrangement work the chances are that it can work; although, even there I would suspect that joint custody can be more fruitful.

12:40 p.m.

However, what is needed when people divorce and the trauma is there, given that we are talking about an arrangement for a child's life that will go on not for the year or two of the trauma but for five, 10 or even 15 years of that child's life, is a strong signal about what the state believes. We need a strong signal about what we in this Legislature believe should be the arrangement those parents make for the innocent parties in this transaction, the children who happen to have been born to parents who divorce.

If one parent who is prepared to be cooperative, to move heaven and earth to participate -- and I would say particularly in many cases that is still the father -- says, "I want this joint custody. I want to be involved," and if the mother says "No," then there is no willingness. Therefore, under our law it is down the spout, joint custody does not work, and the mother gets full custody.

The minister says many of the cases are determined without going to litigation. I gave a specific example of why that happens. The fathers look at the legal costs and the chance of winning and the lawyer says to them: "You may as well forget it. You are not going to win custody anyway." The mother says, "I will not agree to joint custody." Therefore, the compromise, which I believe in many cases might be in the best interests of the child, is not available.

All of us know, from any kind of bargaining we have done -- and we have seen some bargaining in this House in the last couple of days -- that compromise is required. There has to be a compromise position. It is a position in which both parties can win or can feel they are better off. Last night we had an agreement whereby the government hopes to get its legislation through before the summer and the opposition succeeded in getting public hearing on some bills. In the case of husband and wife, if the alternative for the husband is joint custody, taking that responsibility and having the access as opposed to visiting rights, obviously the husband will take that over a weak chance of winning full custody.

For the wife, if this means that she has some help from time to time with the child, if she is assured those child support payments -- which, she has heard from her friends who have been through it, are terribly difficult to get in so many cases -- will come through regularly because the guy is involved with the child, there is an advantage in it for her as well, or at least she loses less than if it the husband has sole custody.

I am suggesting the rule of willingness is not a rule we should perpetuate. We should be prepared to look at this. The minister says he thinks the California law is more rigid. Given the fact of willingness on both sides being required, our law is more rigid because it gives a veto to the less co-operative parent.

I reiterate my request and ask the minister to agree. Will his ministry, in the next year or two, specifically undertake through the law reform commission, through his officials, maybe through two or three members of the Legislature, to go to a couple of jurisdictions where this is practised to look at some of the alternatives and see whether we cannot take this law a step forward in terms of providing mechanisms which would seek to encourage co-operation rather than to encourage discord, as I believe the present law in force still does?

Hon. Mr. McMurtry: We are continuing to look at a number of jurisdictions with respect to this issue. Certainly, we would be happy to give the member for Ottawa Centre the undertaking that we will continue to do so. We will be happy to share our thoughts with him on an ongoing basis.

Mr. Chairman: Is there any further discussion on the proposed amendment?

Mr. Cassidy: I have another amendment, Mr. Chairman, but perhaps it might be more productive for the House, since I have said most of the things I want to say, to wait until section 31 to make some further comments.

Mr. Chairman: I think that would be an appropriate way to proceed. The member for Ottawa Centre has moved an amendment to subsections 20(1) and (2) of the act.

All those in favour of the amendment will please say "aye."

All those opposed will please say "nay."

In my opinion the nays have it.

Motion negatived.

Mr. Chairman: Shall sections 20 to 30, inclusive, carry?

Carried.

Mr. Cassidy moves that subsection 31(1) of the act, as set out in section I of the bill, be amended to read:

"Upon an application for custody of or access to a child, the court shall appoint a person to mediate any matter specified in the order unless both parties request that a mediator not be appointed";

That a new subsection 31(6) be added to the act to read as follows:

"If the parties are unable to decide on the form of the report of the mediator as provided in section 4, the mediator shall file a full report in accordance with subsection 4(a)";

And that the existing subsection 31(6) and the remaining subsections of section 31 be renumbered.

Mr. Cassidy: Mr. Chairman, these amendments are not purely consequential on the ones I put forward before. By the way, I would hate to think the social philosophy of the province is being determined by the member for Oriole (Mr. Williams), who was the most vocal in saying "No" to that last amendment.

This approach is also an adaptation of one that is now being used in California that I believe we should look at closely here. The only change in subsection 31(1) is that, instead of saying the court may appoint a mediator, this says the court will appoint a mediator to try to work out the questions of custody and access and arrangements for the child, unless both parties say "No." One assumes that, if both parties say "No," it is because they are either confident they can work things out for themselves or they have worked out an agreement and a mediator is not required.

The other part of the amendment indicates that if the parties cannot decide on what the mediator should report, then there would be a requirement for the mediator to come back and report to the court. One of the purposes of that is simply to bear in mind that the co-operation of the parties with the mediator or with a social worker is one factor to be dealt with by the courts. It seems to me, therefore, desirable for the mediator's report to be acceptable to the courts so they can know what is happening in terms of the co-operation of either of the parties.

I need not reiterate at length that there should be quite a clear signal in the legislation that, whatever their differences over other things, the parties involved in the determination of matters with respect to children should be rewarded for being co-operative. Right now, it is the contrary. I believe they are being rewarded for being unco-operative, as we just saw when it was clear there cannot be joint custody if one party disagrees. In other words, not being co-operative pays in that case. I think we should be saying in the legislation that co-operation pays.

We should look more closely at the experience in California where, because a separation or divorce is a traumatic experience, an outside third party can be extremely helpful in aiding people to separate their own personal differences from the best interests of the child. There is more and more experience of this in other areas, where that kind of crisis intervention or mediation takes place almost as a matter of course, in order that people can be level-headed about matters that are important, but that may not be the only matters they have in front of them at that time.

The minister is probably familiar with the practice of separation counselling, which takes place right now in large corporations. If some vice-president is getting the sack, traditionally he is not given much notice. He is called in on a Friday morning by the president, who says:

"Joe, I am sorry, but we are going to have to let you go. Your work has not been satisfactory," or "We cannot afford to keep you,' or "We are closing your division," or whatever the reason may be.

12:50 p.m.

When that vice-president emerges with an assurance of two months' severance pay and those kinds of things, a severance counsellor, somebody from one of the management firms downtown, is sitting there. He says, "My name is So-and-so, and my job is to talk with you about what is going to happen and to help you to make the right decisions so you do not blow it." This is in order that somebody who has been fired after many years with a firm would be prevented from divorcing his wife, crashing his car, going off on a binge, burning all his bridges to people in the trade by making angry telephone calls to people who could subsequently give him a job, that sort of thing.

In this case it is the welfare of the child that is at stake, and the experience seems to be that if a mediator can sit down, either individually or with both parents together, and say, "Look, this is pretty traumatic. You have decided that you are going to split up. My job is not to get you back together again or to be moralistic; you are adults, and that is your decision. But there are children involved in this, and my job is to help you work out what would be in the best interests of those children," and if this is done early, if it is assured, if there is a signal from those of us who make the laws that we think it is important and that this is why the amendment is being made, then there is a better chance that good arrangements can be made for the child and that the arrangements which are made are made with a view to lessening or eliminating litigation and vicious court fights over custody.

I think the minister would certainly agree that whenever those court fights occur they are undesirable both for the mental health of the parents and for the best interests of the child. Wherever we can, it is desirable for us to find means of reducing or eliminating that kind of custody battle by encouraging people to come to an agreement to do things voluntarily.

That is what this amendment is all about, and I hope very much that this one, which is perhaps not as fundamental as the other one, can be accepted at this time as a further step forward in the improvement of this custody act.

Hon. Mr. McMurtry: Mr. Chairman, the only thing I think I would disagree with in what the member for Ottawa Centre has said is that people are awarded these battles for lack of co-operation. That just has not happened. As a matter of fact, I just cannot accept that conclusion.

We certainly agree with the concept of mediation. We have a number of conciliation projects around the province. The courts invariably become involved in pretrial conferences of one kind or another in order to mediate the differences without a court battle. I cannot accept the amendment simply because it would be premature at this time to accept compulsory mediation. First of all, the resources vary from place to place in the province, and who the mediator is going to be will depend not only on the available resources but also on the circumstances of the case.

While the courts are very mindful of the importance of mediation and do invariably become involved in or direct some form of mediation, I think that one of the adverse effects of making it compulsory could be to serve the very parent whom the member for Ottawa Centre does not want to see receiving an advantage, that is, somebody who refuses to co-operate. To enforce mediation is only going to prolong the agony of the situation in a case where the court feels that mediation would serve no useful purpose and that it had simply better get on with it in the children's interest.

While I once again agree with at least most of the sentiments behind this proposed amendment and certainly agree with what the member has had to say about the importance of conciliation and mediation, I just think to make it compulsory could produce some very negative results.

Mr. Cassidy: Mr. Chairman, I'll just make a final comment. I guess the question I would ask is, what is there in the bill which really does encourage co-operation? The minister speaks of the conciliation projects and I am aware of those, but again I am not a lawyer, so I do not know them as intimately as perhaps he does since they are within his ministry. If you could take a factum, you have parents who are divorcing and one parent says, "I will not see a mediator"; then that parent says, "I will not agree to joint custody"; that parent says, "There is no way you can have sole custody," and that parent then fights like crazy whether it is negotiation or litigation to reduce the access by the other parent.

Not only that, but there is an incentive over the course of any contract that parent might have with authorities, with social workers or anybody else, to try to beat down the other side. If it is a wife she will say, "My husband is a son of a gun. He never provided adequately. He beat the children. He did this and that, all sorts of nasty things." In other words, there is an incentive on both sides to try to downgrade the other parent in the eyes of people making custody decisions.

If joint custody is the presumed outcome, it is much tougher because if you are going to enter into partnership with somebody after the divorce in terms of looking after children, it is pretty hard to say, "He is a bum." That is one of the reasons I think that there should be a presumption of joint custody. I know we will carry this on at some future time but I say to the minister that he should perhaps talk, as I have, with some people who practise family law and who have been through those custody cases, even if they are rare, and ask those people whether or not there are incentives to non-co-operation in the system right now.

Perhaps one should ask as well why it is that in so many of the cases custody goes to the wife without ever going into a custody battle. Obviously, it is because husbands just simply say: "The heck with it. It is not worth it. I am not going to win. I am going to spend all kinds of money. It is going to be bad for the children." I presume that is the case, but once again if there were other kinds of outcome that they could look for and co-operate for, that would be an awful lot better for them and an awful lot better for the children who, when the parents were divorced, would not as a consequence find themselves being divorced usually from their father.

I leave that point with the minister and suggest to him that quite apart from all of the partisan stuff in this Legislature, if we, in our wisdom, could find ways to encourage cooperation with respect to children between divorcing parents rather than a lack of cooperation that too often is encouraged now, we would be doing a great, positive thing for children who are the innocent victims of divorce and separation.

Mr. Chairman: The member for Ottawa Centre has moved an amendment to section 31 of the act as set out in section 1 of the bill. All those in favour of the amendment will please say "aye."

All those opposed will please say "nay."

In my opinion the nays have it.

Motion negatived.

Mr. Chairman: Section 31 carried.

Shall sections 32 to 79, inclusive, carry'? Carried.

Section 1 agreed to.

Sections 2 to 7, inclusive, agreed to.

Bill 125 reported.

On motion by Hon. Mr. Gregory, the committee of the whole House reported one bill without amendment.

THIRD READING

The following bill was given third reading on motion:

Bill 125, An Act to amend the Children's Law Reform Act.

The House adjourned at 1 p.m.

18 juin 1982